Alert > Telecommunications, Media and Technology

September 20, 2007

The Federal Communications Commission (“FCC”) released the full text of a Notice of Proposed Rulemaking (“NPRM”) in WT Docket No. 07-195 seeking public comment on the proposed service rules for the 2155-2175 MHz band (“AWS-3”), which has been allocated for fixed and mobile services, including Advanced Wireless Services (“AWS”). The FCC’s action seeks to define the terms under which 20 MHz of new spectrum will be made available for advanced wireless services, including wireless Internet access and other wireless voice and high-speed data services. The NPRM also sets the stage for another round of the wireless “open-access” debate that played a key role in the FCC’s approach in creating rules for the much-anticipated auction of 700 MHz spectrum.

The FCC requests public input on a broad range of technical and policy issues, including if and how the spectrum should be divided, whether the spectrum should be licensed or unlicensed, whether licensed spectrum should be auctioned, the geographic scope of the licenses and what, if any, obligations should be attached to the spectrum.

The 2155-2175 MHz band is currently occupied by over 1,800 active, incumbent Fixed Service and Broadband Radio Service licenses, which are subject to relocation by emerging technology and future AWS-3 entrants. 

Unlike other bands designated for AWS, the AWS-3 band is a single, contiguous 20-megahertz block with base transmit bands on either side (AWS-1 at 2110-2155 MHz and proposed AWS-2 operations at 2175-2180 MHz) which presents interference challenges particular to this band. The FCC is therefore seeking comment on three different technological approaches, and related interference issues, to this band:

• Permitting both base station transmissions and mobile handset transmissions in the band, as needed to support the licensees’ choice of technology (“uplink/downlink approach”);
• Permitting both base station transmissions and mobile handset transmissions in the band, but only in particular parts of the band specifically designated by the FCC (“structured uplink/downlink approach”); or
• Allowing only base station transmissions in the band (“downlink approach”).

Regarding the FCC’s proposed band plan for the AWS-3 spectrum, the FCC seeks comment on:

• How to subdivide the spectrum, if at all, and which block size(s) offer the best opportunity to use the 20-megahertz of spectrum efficiently, depending on which technological approach is adopted;
• The FCC’s proposal to license the 2155-2175 MHz band using a geographic area licensing scheme, as opposed to site-by-site licensing; and
• Assuming that the FCC utilizes a geographic area approach for licensing this band, the FCC seeks comment on the appropriate size(s) of service areas on which licenses should be based, e.g., licensing by Nationwide, Regional Economic Area Groupings, and Rural Service Areas/Metropolitan Statistical Areas.

In addition, the FCC seeks comment on whether to auction the spectrum, along with the attendant auction procedures, and whether to authorize unlicensed use of the spectrum, or adopt some other alternative licensing approach. The FCC also proposes to apply the FCC’s market-oriented Part 27 rules which do not prescribe a comprehensive set of licensing and operating rules for the spectrum to which it applies, and seeks comment on this proposal.

The FCC also seeks comment generally on whether to apply various conditions to govern the operation of networks using this band, as had been proposed by several parties in their applications pertaining to this band (i.e., M2Z Networks, Inc.; Commnet Wireless, LLC; McElroy Electronics Corp.; NetfreeUS, LLC; NextWave Broadband, Inc.; Open Range Communications, Inc.; and TowerStream Corporation).

A 10-year license term is proposed with a renewal expectancy similar to that afforded PCS, cellular and Part 27 licensees. Comment is also sought on appropriate performance requirements, such as the substantial service standard or construction benchmarks, for licensees in the AWS-3 band. The FCC also seeks comment on whether it should adopt a “keep what you use” re-licensing mechanism as the FCC recently did in the 700 MHz proceeding.¹

Finally, the FCC seeks comment on the following actions:

• Requiring any Commercial Mobile Radio Services offered in the band to comply with 911/E911 and hearing aid compatibility requirements;
• Addressing interference concerns if both mobile and base transmissions are to be allowed in the band, including the use of power limits and out-of-band emissions requirements;
• Imposing no spectrum aggregation limit or eligibility restrictions in the band;
• Placing a limit on the height-above-average-terrain of base or fixed station antennas operating in the band;
• Applying the foreign ownership provisions of Section 27.12 of the FCC’s Rules to AWS-3 applicants; and
• Requiring new AWS licensees to coordinate with incumbent fixed service incumbent licensees before initiating operations. 

The NPRM presents a valuable opportunity for wireless service providers, manufacturers, users and investors in such entities to help shape the rules for this new spectrum. Comments will be due 30 days and replies due 60 days after the NPRM is published in the Federal Register, which has not yet occurred.

If you have questions or would like to discuss how to weigh in on the issues under consideration by the FCC please contact the following lawyers in our Telecommunications, Media & Technology Group:

Catherine Wang, catherine.wang@bingham.com, 202.373.6037
Nguyen T. Vu, nguyen.vu@bingham.com, 202.373.6254