Jay, let me try to respond to your very well-stated and reasonable concerns about this proceeding. I believe that Dave Sumner shares some of these same concerns, and I don't necessarily believe that I have provided him satisfactory answers to date.

If we don’t have the firm support of the ISM industry, is this really the battlefield of choice?

There is no help from ISM device manufacturers, as they have no interference problem. See my prior message. What is the probability we can actually win this case? I think it reasonably good, when you look at the requirement of Section 301 of the communications Act. It is absolute. It requires that "no person shall use or operate any apparatus for the transmission of energy or communications or signals by radio (intrastate or interstate or internationally) or when interference is caused by such use or operation with the transmission of such energy, communications or signals...except under and in accordance with this Act and with a license in that behalf granted under the provisions of this Act." If FCC wants to weasel its way around this, it will have to justify it by reference to Section 302(a), which I don' t believe it can do. The allowance of Part 15 by reference to a construction of Section 302(a) is likely to fail, and otherwise, the non-interference condition is merely an FCC construct. We gave FCC that in our comments and our reconsideration petition, but really, even that doesn't have a statutory underpinning. It is not only signals that have interference potential, it is all communications and emissions by radio that require a license. It seems that unlike the

problems created by mass marketed omni-directional Part 15 transmitters, the source of interference from one these radiators should be relatively easy to track down. Unless I am missing something it also appears that once located the non-interference provisions of Part 15 should apply to the transmitter and it will be up to the owner to correct the interference problem.

You are correct. The normal Section 15.5 rule applies: the devices are supposed to shut down in the event of interference. That doesn't translate, however, to compliance with Section 301 of the Communications Act, and our argument is that the post hoc interference resolution obligation is a red herring. Maybe it is possible to DF the offending transmitter, maybe not, but the purpose of Section 301 is to avoid interference in the first place, and the FCC's normal rules for Part 101 OFS transmitters includes frequency coordination, which would provide an opportunity to avoid interference when the microwave system is first licensed. And, the FCC doesn't investigate Part 15 interference complaints typically, so the interference is not remedied as it is with licensed services, where the interference can be determined by database references, quickly and easily.

How do we avoid the claim that Amateurs are only interested in hanging on to little used spectrum because it is “theirs” no matter how underutilized, even in the light of a compatible use? Mind you I don’t believe that but the claim will be raised.

Not a valid argument in the Court of Appeals. The FCC didn't make any specific findings on "underutilized" and that is beyond the scope of the appeal. And the argument isn't that the use is incompatible on a large scale; it is that it cannot be authorized unless the transmitters are licensed.

Shouldn’t we wait for a battlefield more to our liking? The playing field is tilted enough. Wouldn’t it be to our advantage to wait for a better fact situation or at the very least one where we have a few allies?

What is compelling about this case, rather than BPL, or SAVI, or some other case, is that the transmitter power and permitted field strength is so great that the path lengths are many miles. This service approaches OFS microwave so closely that it is not possible to differentiate the two operationally at all. 73, Chris W3KD