Proposed rule change does not mean LMR spectrum auctions are imminent

By Michael Higgs

Congress has tasked the FCC with providing additional radio spectrum for use in broadband wireless communications services. One source of additional broadband spectrum identified involves reallocating some portion of the broadcast television band. Toward that end, the FCC issued a Notice of Proposed Rulemaking (NPRM) seeking to establish the rules and procedures for an incentive auction, whereby broadcast licensees would use competitive bidding to establish a sale price to relinquish some of their authorizations, and broadband providers would use competitive bidding to establish a purchase price for the newly available spectrum. Rather than relocating or revoking incumbent licenses—as has been employed previously—the FCC is proposing a truly innovative approach to transitioning a portion of a legacy band of spectrum to more productive use.

This is all about broadband and broadcasters you say, so what does this have to do with my LMR authorizations? Glad you asked, because in a footnote on page 98 (of a 205 page document) of the NPRM, the FCC states, “[w]e take this opportunity to delete 47 C.F.R. §1.2102(c) …” That is the rule section that exempts from auction authority, among other services, 800 MHz non-SMR, and VHF and UHF LMR other than 220 MHz. Calling this rule “an outdated provision,” the commission announces its deletion “to reflect that the services listed in that section are subject to competitive bidding under current law.”

There is some question as to whether this action results in a rule change that potentially exposes Part 90 users to spectrum auctions. Section 309(j) of the 1996 Telecom Act—in which Congress provided the FCC with its auction authority—specifically excludes from the auction process public-safety licenses and authorizations used by not-for-profit organizations “to protect the safety of life, health or property…” Because public-safety licenses are protected from the auction process by statute, that issue alone should not be a barrier to the deletion of §1.2102(c). With regard to non-public-safety land-mobile-radio services, there is a long history of resolving mutual exclusivity in the LMR bands thru a process of frequency coordination and channel sharing, but this does not necessarily bar the FCC from utilizing the auction process as a means for deciding between competing private interests. 

However, let us not confuse authority with intention. In fact, the FCC considered the idea of PLMR auctions in 1999 and soon thereafter scuttled any such plans. If the FCC revisits the idea of PLMR auctions for non-public safety services, a new rulemaking proceeding would have to be initiated. Of course, opposing forces would no doubt organize against such a plan.

It appears that the FCC believes that Rule §1.2102(c) needs to be deleted in order to establish the broadcast incentive auction. However, the change should have no adverse impact on the LMR community. The deletion did not expand the commission’s existing auction authority, nor does it indicate that the FCC is implementing Part 90 land-mobile-radio auctions tomorrow.

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Michael Higgs is an attorney at Shulman Rogers Gandal Pordy & Ecker, where he practices in the wireless and infrastructure areas. He can be reached at mhiggs@shulmanrogers.com.