Mixed message: FCC dismisses Cyren Call petition but continues to solicit comments

In an unusual procedural action, the FCC on Friday dismissed Cyren Call Communications’ petition for rulemaking that proposes a public-private partnership to build a nationwide broadband network for public safety utilizing 700 MHz spectrum earmarked for auction to commercial providers.

The FCC dismissed the petition for the reason all observers have acknowledged for months: the FCC could not conduct a rulemaking proceeding on the proposal unless Congress changes its plans to auction the 30 MHz of spectrum by January 2008.

“The commission has no authority to take further action on the request at this time,” the FCC order states.

But the action does not end the debate on Cyren Call’s plan, the merits of which are not discussed in the FCC’s decision. The commission dismissed the petition “without prejudice” and is continuing to receive comments on the proposal in a proceeding opened earlier last week. Public comments on the plan are due on Nov. 29.

“I don’t believe it really changes anything,” said Blair Levin, a former FCC chief of staff and telecommunications analyst for Stifel Nicolaus. “It was fairly clear before they put it that out, for them to do anything, Congress was going to have to act.”

While that is the case, the FCC’s public acknowledgement of its situation may help focus the existing proceeding on the Cyren Call proposal. Instead of receiving comments that state Congress has other plans for the spectrum—the fundamental position of a recent filing made by CTIA, which represents commercial wireless carriers—the comments now can focus solely on the merits of the Cyren Call plan, an FCC spokesman said.

In a statement, Cyren Call Chairman Morgan O’Brien described CTIA’s opposition to his company’s proposal as “regrettable” but noted that the matter still is open for public comments and that Congress will need to decide the issue.

“Congress will have the final say over how to best use this valuable spectrum resource,” O’Brien said in the statement. “We know this plan will require congressional action. That’s why we have been working with public-safety leaders over the last few months in drafting legislation, and we are confident that this plan will ultimately receive strong backing from Congress.”