As many of you know, Mitchell Lazarus is an outstanding communications attorney who often represents opposing interests to ours. It is interesting to see that this morning he is citing the Court of Appeals decision in ARRL v. FCC - in which he represented Current Technologies as an intervenor on the side of the FCC - as evidence that the FCC has acted improperly in the so-called "white space" proceeding. We do not have a dog in the "white space" fight directly, but it has indirect implications that cut both ways. On the one hand, anything that makes BPL even less competitive as a consumer broadband delivery system is good. On the other, more intensive use of the TV broadcasting spectrum will create pressure elsewhere and might even lead to unfounded TVI complaints against amateurs. Dave K1ZZ From: Mitchell Lazarus [mailto:lazarus@fhhlaw.com] Sent: Thursday, November 06, 2008 9:53 AM Subject: "White Space" Fights are Just Beginning. Engineering and politics do not mix well. The FCC encountered that truth again this week when it authorized the use of unlicensed devices in vacant TV frequencies, the so-called "white space" spectrum. The idea is controversial because unlicensed devices pose a potential risk both to TV reception and to the wireless microphones that use empty TV frequencies. The idea became more controversial three weeks ago when the FCC's own engineers released a report showing that white-space devices might indeed cause interference, especially when an adjacent TV channel is in use. The report concluded, however, that white space proponents had shown "proof of concept." The proponents seized on this language as establishing that white space devices could safely be deployed. I noted then that the Wright brothers had established "proof of concept" at Kitty Hawk - that is, they proved the feasibility of powered, heavier-than-air flight. But it still took another thirty years to develop safe, commercial air travel. "Proof of concept" does not mean ready for everyday use. We wanted to make this point to the FCC, along with some observations on the data. But the FCC turned down requests to delay its decision long enough to receive public comment on the engineering report. Yet just last April, the U.S. Court of Appeals sent a rulemaking back to the FCC for not taking comment on an engineering report. The "studies upon which an agency relies . . . ," said the court, "must be made available during the rulemaking in order to afford interested persons meaningful notice and an opportunity for comment." ARRL v. FCC, 524 F.3d 227, 237 (D.F. Cir. 2008). That is pretty clear. We can only speculate as to why the FCC did not follow those instructions this time. Even if the aim was to beat the coming hand-over in the Administration, there would still have been time for a brief comment period. Instead, the FCC has (in effect) put off the hard technical decisions by adding extra layers to its approval procedures for white space products. Devices that rely on sensing the spectrum for TV and microphone signals will have their applications released for public comment (this is a first), will be tested by the FCC in real-world environments (ditto), and will require approval by the full FCC, not just the engineering staff. The all-important details of the required testing have not yet been disclosed. But we can expect long, hard-fought battles, complete with extensive lobbying, over the first several devices submitted for approval. White space devices that rely on "geolocation" - i.e., on location-finding via GPS, coupled with a database look-up for available channels - will have an easier approval process, on the theory that the technology has fewer unknowns. But GPS has the serious downside of not working well indoors, which is where most people use their communications devices. Manufacturers may find themselves forced into the more contentious approval regime for sensing devices in order to satisfy consumers' needs. Despite this week's decision against them, the opponents of white space devices still have plenty of opportunity to press their case in the laboratories and conference rooms of the FCC, and possibly in court as well. We can only hope that in future deliberations the decision-makers keep a better focus on the engineering. For a blog item (unlike this one) having actual facts on the FCC's white space decision: http://www.commlawblog.com/2008/11/articles/unlicensed-operations-and-em er/welcome-to-the-white-spaces-no-license-no-problem/ For the FCC's news release: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-286566A1.doc USUAL DISCLAIMER: This email is one of an occasional series on telecommunications regulatory issues sent to both clients and non-clients free of charge. It is not legal advice, does not create, extend, or reinstate an attorney-client relationship, and does not solicit the representation of entities that have regulatory counsel. Recipients are free to distribute this email to others, but please include this notice and the signature block. To add, change, or drop an email address, just let me know. Earlier emails are archived at http://www.commlawblog.com <http://www.commlawblog.com/> . Mitchell Lazarus Fletcher, Heald & Hildreth, PLC 703-812-0440 (office) 301-537-7278 (mobile) MLazarus@alum.MIT.edu <mailto:MLazarus@alum.MIT.edu> www.fhhlaw.com <http://www.fhhlaw.com> blog: www.commlawblog.com <http://www.commlawblog.com>