The law of unintended consequences

Sometimes it feels like the industrial/business user community just can’t catch a break. It has been more than a quarter-century since the FCC allocated any spectrum for its use. The commission made 900 MHz spectrum available in 1986, then froze the band in 2004, the state in which it remains despite yeoman’s effort on EWA’s part to get it defrosted. That same year the FCC decided that public safety should have first (and likely final) crack at 800 MHz spectrum vacated by Sprint Nextel as part of the 800 MHz rebanding proceeding. Congress then decided in 2007 to allocate 24 MHz of 700 MHz spectrum to public safety with bupkis for the rest of the Part 90 user community. And in 2012, public safety pulled off its own Mission:Impossible and persuaded Congress to reallocate the 10 MHz D Block at 700 MHz from commercial to public-safety use.

In the meantime, industrial/business users have been under the gun to skinny up their VHF and UHF systems to make room for more users. Narrowbanding already is a reality for many licensees and there clearly are benefits for those who took this “opportunity” (a/k/a unfunded federal mandate) to convert to more advanced digital technology. Whether this costly exercise will create meaningful spectrum options for users in the congested markets where capacity is actually needed remains to be seen. There is only so much meat byproduct you can stuff into a sausage casing no matter how you slice and dice it.

Of course, while we are narrowbanding, the FCC is besotted with broadband. They are determined to see broadband capability brought to every hillock and hamlet in the nation so that businesses, health care providers, educators, the students they educate, and just about everyone else has access to this 21^st century wonder. To believers, there is almost no societal ill that can’t be made better by applying a healthy dose of broadband, particularly wireless broadband. The argument is that high-speed broadband connectivity will enable small and rural businesses to compete in a global marketplace thereby creating jobs, will improve management of our energy resources, and will streamline both our health care and educational ecosystems: A tall order even for a transformative technology. Since the FCC views broadband as coming in only two flavors — commercial and public safety — it has provided no allocation for industrial/business users that might want to deploy their own systems. Their options are to become users on a commercial system or partner with public safety in its broadband deployment.

Which brings us to the unintended T-Band (470-512 MHz) consequences with which we’re now wrestling. Public safety pulled off the D Block reallocation coup against all odds and seemingly without FCC support (and perhaps even a bit of FCC opposition). It looked like a tilting at windmills exercise until they won. No one should begrudge them the fruits of that effort and all should hope they are successful in deploying a nationwide public safety broadband network. After all, who doesn’t want their police, fire and EMS providers to have the best technology available when it is your valuables, your house, or your life that is being protected? All that would be fine if the deal public safety struck to get the D Block didn’t leave industrial/business users holding at least part of the bag. Unfortunately, at least at the moment, it looks like it may.

Congress can giveth, but Congress also can taketh away. It reallocated the D Block for public safety use but directed the FCC within nine years to reallocate and begin an auction process for the T-Band spectrum “currently used by public safety eligibles.” Now that sounds clear enough. Public safety was getting 10 MHz nationwide and eventually would have to give up its T-Band spectrum in the eleven markets in which it is available. The trade-off was far from ideal since public safety is a major T-Band user in some of those areas. However, it was a better option than the ones public safety rejected, which would have meant relinquishing 450-470 MHz channels or its 12 MHz narrowband 700 MHz allocation. And to sweeten the deal, the legislation also provides that the auction proceeds can be used to fund public safety’s relocation costs.

The legislation says absolutely nothing about the FCC reallocating T-Band spectrum that is not “currently used by public safety eligibles,” that is the T-Band channels used by Industrial/Business licensees. Yet the FCC seems to believe it has an obligation to do just that. While it has not yet proposed any rules to implement the statute, its T-Band freeze (and its waiver of the T-Band narrowbanding requirement) applies to all licensees. The rationale is that the Commission needs to “stabilize the spectrum landscape” and not grant applications that “could alter [it] and thereby make implementing the Act more difficult or costly.” Unfortunately, stabilizing the landscape to keep costs down for an auction that won’t occur for another ten years imposes a cost today on T-Band licensees whose systems are frozen and whose competitors can advise prospective and existing customers that they should avoid or abandon T-Band because the FCC is going to reallocate this spectrum.

There is no indication that whoever negotiated the D Block/T-Band reallocation deal for public safety intended industrial/business T-Band spectrum to be affected. There isn’t even any indication that Congress intended to include it. The language of the statute suggests otherwise and it makes no provision for comparable spectrum to which these systems could move or for relocation funding. But depending on the FCC’s implementation of the legislation, it may be industrial/business T-Band users who pay the real price for the deal public safety made. And that, my friends, is why it is called the law of unintended consequences.

Liz Sachs is EWA’s regulatory counsel. She is an attorney with the law firm of Lukas, Nace, Gutierrez & Sachs, LLP.