The legal truth about 800 MHz interference

The publicized FCC rulemaking regarding protection of public safety’s operations at 800 MHz has caused rebanding proposals, auction proposals and technical proposals to be placed before the agency. The only thing missing was the basic analysis of the legal status of interfering operators.

This analysis is necessary because amid the noise and chatter about what should be done, the industry has ignored the issue of why something needs to be done. The need arises from flawed premises promoted by interfering operators that suggest that operation of low-site cellular systems is authorized by their respective licenses. This is not wholly true, and this half-truth has, to some extent, guided the agency thus far.

Statutes, precedent favor non-cellular operations

The flawed premises regarding the existing operations of the interfering CMRS carriers appears to begin with the overly simplistic approach that since those operators possess authorizations to operate on those channels over the respective geographic areas and since the equipment employed has been type accepted by the Commission, then all such operation is legal. This is untrue, and the pedestrian logic that produces this conclusion has undermined the agency’s exercise of rightful authority to protect the operation of legitimate systems.

A simple example shows that the premise is wrong. If an amateur radio operator uses its type accepted equipment to engage in unauthorized broadcasting, this activity is not within its authority and subjects the operator to serious penalties. It doesn’t matter if the channels upon which the operator is transmitting are fully authorized for amateur radio operation and the equipment is operating properly. This operator is deemed a “pirate broadcaster” and the Commission’s records are filled with the serious punitive reaction to such activity, regardless of whether the offender’s operation causes harmful interference or otherwise injures any other person or their business.

This example shows that whether an activity is authorized, i.e. legal, is not confined to the issue of whether the operator holds a license or the equipment is type accepted. The relevant issue is whether the operation is within the boundaries of the operator’s authorization.

The underlying statutory authority rests with 47 U.S.C. §301, which states in relevant part,

It is the purpose of this Act, among other things, to maintain the control of the United States over all the channels of radio transmission; and to provide the use of such channels, but not the ownership thereof, by persons for limited periods of time, under licenses granted by Federal authority, and no such license shall be construed to create any right, beyond the terms, conditions and periods of the license. No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio … or when interference is caused by such use or operation with the transmission of such energy, communications, or signals … upon any other mobile stations within the jurisdiction of the United States, except under and in accordance with this Act and with a license in that behalf granted under the provisions of this Act.

The interference created by low-site cellular operations is suffered by other licensees most often due to the interfering entities’ production of energy on channels for which the interfering licensee does not have authority to transmit. For example, the production of intermodulation products is the creation of energy spurs on channels upon which the operator(s) does not hold authority. Since the operation is unlicensed, it is unauthorized, i.e. illegal.

Licenses tell the story

The subject cellular licensees and Nextel cannot point to language on the face of their respective licenses which states, in effect,

Licensee is authorized to produce unintended radiation in amounts sufficient to be detectable by adjacent channel licensees and licensees operating on channels upon which intermodulation products occur, which harmful radiation detecting licensees must be made to suffer until such time as the parties might informally and mutually agree to a resolution of any harmful interference that results from licensee’s unintended radiation.

Yet, the rebanding plans which speak to accommodating Nextel’s continued use of its architecture suggest that Nextel’s operation is unfortunate, but authorized.

Conversely, analog SMR operators, utility companies, public safety licensees, B/ILT licensees, and other affected licensees will search in vain upon the face of their respective licenses for language which states, in effect,

This license is conditioned upon licensee’s agreement to accept interference from unauthorized transmissions operating outside the authorized passband of other licensees’ systems until such time as the interfering operator engages in extensive testing for undetermined periods. Licensee may be subject to all costs arising out of its participation in all such testing and any modification demanded by the interfering operator to accommodate the operation of the interfering operator’s system.

This illustration demonstrates why the dictates of Section 301 are important for directing the efforts of FCC and the industry. The basic idea is, that no person may operate radio apparatus in a manner that exceeds the technical parameters of that person’s license. Further, that all such operation is, by its very nature, unauthorized. Since most of the interference which the rule making seeks to correct is the result of transmissions of energy outside the authorized passband which appears on the offending party’s license, the industry should assist the FCC in recognizing this fact and the legal ramifications of this basic principle of spectrum management.

History should guide the FCC

What is somewhat troubling is that the FCC has to be reminded of something which it has used countless times to rein in technically improper or simply injurious operations. For examples, although cable television systems require authority, that authority does not extend to a right to create harmful interference arising from signal leakage across a system, In the Matter of Charter Communications, VI, LLC, DA 02-2137 (released September 4, 2002); and the Enforcement Bureau is quick to point out in its letters to errant licensees, “[o]peration outside the scope of authorization creates a definite danger of interference to other radio communications services and may subject the operator to the penalties provided for in the Communications Act of 1934, as amended.” Letter to Communications Unlimited, Inc., EB-01-CG-134 (March 20, 2001).

That the requirement to operate within technical parameters is one of the most basic tenets can even be seen when an entity is operating in a less-than-complete mode, e.g. the operation of antenna facilities at heights substantially below the authorized AGL, resulting in the Commission holding that substantial construction had not occurred and the license was canceled, see, In the Matter of Mobile Communications Service, Inc., 14 FCC Rcd 19471 (released November 22, 1999).

Analogously, the Commission denied a request for Special Temporary Authority when the applicant wished to operate at a bandwidth greater than that appearing on its license, because no equipment was available which would limit the bandwidth to 6.25 kHz as authorized, Letter decision to Hilltop Communications, Inc., Ref. No. 7110-19 (October 26, 1999), even though the requesting party stated that no licensed system would be affected and that all such authority would be accepted on a secondary basis. The FCC said, in effect, “the face of your license says you may operate a system with a 6.25 kHz bandwidth and no more, no matter what.” What, then, would happen if the FCC applied the same logic to 800 MHz interference?

The agency may immediately order a cessation of such transmissions and, in accord with 47 U.S.C. §503 (b)(1)(A), demand a forfeiture for continuous violations due to that operator’s having “willfully or repeatedly failed to comply substantially with the terms and conditions of [its] license …” which action would be consistent with 47 U.S.C. §333 which states that “[n]o person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this Act or operated by the United States Government.” That the production of such interference outside the terms of the interfering party’s license also gives rise to affected operators’ right to make formal complaint in accord with 47 U.S.C. §208 is also obvious.

Not the first time

The FCC has often adopted rules to protect licensed operations, even when the potentially interfering parties do not operate facilities under the same Rule Part as the potential victims of that operation. For example, 47 C.F.R. §90.257 sets forth specific technical and operational rules to protect licensees of television channels 4 and 5 from receipt of harmful interference from operators of 72-76 MHz facilities. See, also, the Commission’s decision In the Matter of Resolution of Interference Between UHF Channels 14 and 69 and Adjacent-channel Land Mobile Operations, FCC 91-241, MM 87-465 (released August 29, 1991), from which the Commission promulgated 47 C.F.R. §73.687(e) (“Interference Order“) which is the most illustrative of the previous rule makings dealing with these very types of interference.

A simple reading of Section 73.687(e)(4)(ii) shows that the matter of interference resolution has been decided. That rule section specifically directs the broadcaster to “correct a desensitization problem if its occurrence can be directly linked to the start of TV operation and the land mobile station is using facilities with typical desensitization characteristics.” Public safety operators and analog SMR licensees are employing facilities with typical desensitization characteristics and the problem has been directly linked to operation of the interfering CMRS stations.

In fact, the language within the Interference Order that created the rule is directly on point to the issue of 800 MHz interference,

Interference to land mobile facilities from TV signals may be caused by desensitization of the land mobile receiver by the TV signal, generation of intermodulation products and radiation outside the assigned TV channel. In this Notice we addressed receiver desensitization, which occurs when the extremely strong signals within authorized TV channels reach a land mobile receiver with sufficient strength to impair reception. Such impairment may take the form of decreased receiver sensitivity or increased noise, both of which, from the land mobile user’s standpoint, result in loss of coverage area. We also addressed intermodulation interference, a type of interference that occurs when strong signals mix with other signals within or external to a land mobile receiver to produce spurious signals (intermodulation products) on the land mobile receive frequency.

Within that proceeding the Commission correctly decided that the responsibility for avoiding and correcting interference laid with the TV broadcasters. In fact, the Commission went so far as to require broadcasters to demonstrate that proposed operations would not create harmful interference to land mobile facilities prior to commencing program tests.

In Small Business in Telecommunications’ comments, the emphasis has been on technical solutions based on the statutory obligation upon licensees to avoid and correct interference. Those comments are fully consistent with past practices and the mandates of the FCC.

Although the LMCC supported the FCC’s action in the Interference Order, curiously many of its members have forgotten the lessons learned there for dealing with the current situation. The proposals offered by the PWC in WT 02-55 have glossed over the underlying responsibility of all licensees and speak to accommodating interfering operations, or meeting those problems with the Best Practices Guide, a public relations placebo that is similarly premised on feigned cooperation, rather than the legal obligation to immediately cease the creation of harmful interference.

Some conclusions

A rational, legal conclusion to the present rule making must be premised on the dictates of Section 301 of the Act. Application of the statute would mean that although cellularized systems may operate within a geographic area on all authorized channels, the manner in which that operation occurs must reflect the technical parameters, including passband, appearing on the respective licenses. If the operation doesn’t, it’s illegal. Period.

If cellular licensees and Nextel choose to operate low-site systems, they do so at their own legal peril if the resulting transmissions create harmful interference. Conversely, if the operations do not cause harmful interference, the tree has fallen in the woods without anyone hearing it. The FCC has long tacitly approved the “no harm, no foul” rule to the byproduct emissions of RF operations.

Rebanding or relocation should not be employed until such time as CMRS operators can make a showing that operation within the agency’s existing statutory guidelines is impossible for reasons unrelated to whether those interfering operators make a profit. Since no such showing could be made, then the existing harmful interference should not, standing alone, be a basis for rebanding.

I cannot fathom why so many organizations and entities have ignored the basic rights and duties of operators in accepting or adopting proposals. Nor can I explain why the industry would let a class of operators claim immunity to one of the most fundamental requirements of radio—to avoid and correct interference. All I can hope is that the industry, the FCC and, if need be, the U.S. Court of Appeals studies more carefully the law and applies it equally, regardless of size.

Robert H. Schwaninger Jr. is general counsel to the membership organization Small Business In Telecommunications. Part of this article is drawn from SBT’s comments filed with the FCC in its WT Docket No. 02-55 rulemaking proceeding. Schwaninger also is president of Schwaninger & Associates P.C., a Washington law firm. He can be reached at [email protected].

Copyright 2002 by Robert H. Schwaninger Jr.