Communications Litigation Today was a service of Warren Communications News.

FCC Eyes Action on BRS/EBS Recon Petitions in Fall

The FCC hopes to act this fall on 20 petitions to reconsider a June 2004 order revising rules for ITFS and MDS operators in the 2495-2690 MHz band, sources said. The new rules aim to promote wireless broadband in the band and optimize spectrum traditionally used to provide video services for data use. The FCC also is expected to launch a rulemaking on EBS/BRS relocation rules.

The reconsideration order is likely to be weighed at the Oct. FCC meeting, sources said, though one source said it could come up at the Commission’s Sept. meeting. Others said Sept. meetings tend not to include large items since many staffers vacation in Aug. One industry observer was even less cheery, saying: “I'm skeptical they [FCC] will have this done even in October, because they have a lot of homework left to do. I don’t think they have fully analyzed all the technical issues and need to spend more time on it.”

The June 2004 order was precipitated by a proposal by the Wireless Communications Assn. (WCA), the Catholic TV Network (CTN) and the National ITFS Assn. (NIA). However, the FCC’s version of the order irked the groups, which said it significantly deviated from their proposal.

The key issue before the Commission is whether to use smaller Basic Trading Areas (BTAs) instead of Major Economic Areas (MEAs), which it adopted in the 2004 order, as the geographic benchmark for transition to the new BRS/EBS band plan. “I think they [FCC] will go with BTAs,” an industry source said, based on communications with agency officials.

The MEA-based transition process has drawn strong opposition from most of the 20 petitioners, who call it impractical. For example, WCA said the St. George, Utah, BTA overlaps the L.A.-San Diego and Phoenix MEAs. “One does not have to run the numbers to determine that the costs, delays and other logistical difficulties associated with transitioning the exponentially larger Los Angeles- San Diego and Phoenix MEAs undermine any economic case for introducing… new service to St. George,” WCA said.

Another major issue raised in the petitions involves technical parameters and licensees’ interference protection obligations, such as limits on power and out- of-band emissions. For example, several petitioners, including WCA, CTN and NIA, want emissions limits rules expanded to require more restrictive masks in adjacent markets upon request, not after interference has occurred. That position generally is backed by Sprint and Nextel. But Clearwire, which owns equipment vendor NextNet and had chosen technology while others were exploring possibilities, opposed those changes as “complex” and “overly restrictive or anti-competitive.”

The 3rd major issue is whether operators using the band today for wireless cable service will be able to continue to do so. WCA, CTN, NIA and others want the FCC to allow multichannel video programming distributors (MVPD) serving at least 5% of their service area to receive an automatic opt-out from transitions. Several small rural carriers, like Central Texas Communications, also want exemptions, even though they don’t have 5%, but WCA and others oppose their requests due to potential impact on nearby urban markets.

The NPRM accompanying the order likely will seek comment on licensees’ performance obligations and build- out requirements. “What’s unknown is what you have to show to prove that you do enough to retain the license and when you have to show it,” an industry source said. The rulemaking also will look at “how to address the markets where licensees don’t transition themselves by the deadline,” the source said, adding that “transition in any given market could take up to 2 years.”