When Was The Last Time?
Liz Sachs - Partner, Lucas Nace Gutierrez & Sachs and Regulatory Counsel, EWA
When was the last time the FCC allocated spectrum with the specific intention that it be used for non-public safety Private Land Mobile Radio (“PLMR”) operations? When was the last time it allocated spectrum that could be used for mobile operations other than in an auction structure that essentially dictated it would end up as part of a consumer-oriented, cellular architecture wireless network?
Right! Unless you have been involved in this part of the wireless industry for 30 years or more you won’t remember a time when the Commission thought the non-public safety PLMR user community warranted its own spectrum allocation. Ironically, the last great PLMR allocation in the mid-1970s, the proceeding that reallocated the 800 MHz and 900 MHz bands from broadcast to the Part 90 services, also spawned the cellular industry that ultimately came to be viewed by the FCC as the wireless solution for virtually all mobile needs other than those of first responders. As first cellular, then PCS, then WiFi and other consumer-based offerings exploded, the Commission, both by conviction and for convenience, concluded that those systems could meet virtually every PLMR user requirement. When “new” spectrum does become available, often through a reallocation from or swap with the Feds, it invariably is assigned via an auction process that favors the large over the small, both in terms of spectrum block and geographic size. The result is that most such spectrum ends up as part of an expanding cellular/PCS universe rather than in the hands of those operating private, internal systems or small commercial facilities.
So where are PLMR users supposed to find capacity when a cellular-like system doesn’t suit their operational requirements? 800 MHz has been dominated by Nextel for a decade and will be converted into a public safety-oriented band when Nextel abandons its below-862 MHz channels for higher ground at the end of the 800 MHz reconfiguration process. 900 MHz SMR channels are long gone. 900 MHz B/ILT channels are subject to a porous freeze, but they too have been licensed for years in and near major metropolitan areas. Even if the freeze were lifted, there is no room for newcomers or for expansion except outside the more densely populated markets.
Well, we still have the Part 90 VHF and UHF allocations. Those workhorse bands continue to support a substantial number of systems, including at least some centralized trunked operations that provide a degree of channel exclusivity. Yet it remains next to impossible to secure trunkable channels in and around major urban areas, the markets in which centralized trunking is most needed, because of the dense thicket of co-channel and adjacent channel authorizations that must be taken into consideration in a trunked analysis. The good news is that many of the small users that historically operated private systems in those bands have decamped in favor of becoming subscribers on large commercial networks, thereby freeing up capacity. The bad news is that many still retain their old licenses, unaware that the “radios” they now use do not require an individual FCC authorization. They dutifully renew them every decade, prompted by the FCC notification process and by licensing companies that rely largely on scare tactics to market their FCC licensing prowess. The recent FCC audit cleared out some of that underbrush, but there still are a significant number of authorizations that must be considered in the frequency recommendation process even though the systems they represent either never existed or are long gone. If renewal applications remain cheap enough that licensees are not motivated to investigate their necessity, some entities will continue renewing authorizations they don’t use in perpetuity. Navigating this complicated spectrum landscape to find appropriate channels takes diligence and the right analytical tools and, in the end, cannot always produce the level of channel exclusivity that users need.
Is there any hope for a new PLMR allocation? Probably not given the FCC’s penchant for throwing spectrum into the auction pool with few restrictions on its use and licensing it under a competitive bidding process that is not well-suited for the relatively limited, particularized requirements of PLMR applicants. Recent Auctions 40 and 48, in which the FCC granted overlay geographic licenses for Part 22 spectrum, including VHF and UHF paired channels, and did so on a channel-by-channel basis within EAs, represent an instance in which PLMR users had a realistic opportunity to acquire usable spectrum at a reasonable price. (Users that continue to insist on something akin to a constitutional right to free spectrum because that’s what they had in the past are doomed to disappointment in the brave new world of spectrum rights.) It remains to be seen whether there are similar spectrum nuggets that can be extracted for PLMR use.
The only other glimmer of a possibility, and a long, long shot at that, is the recently repacked broadcast spectrum. The FCC already is considering whether low-power unlicensed operations can coexist with broadcast systems, a move that is being resisted mightily by the broadcast industry. But as evidenced by the decades-long successful sharing of TV spectrum by land mobile in a handful of the largest markets in the country, it is possible for PLMR stations to cohabitate happily with adjacent market broadcast stations under carefully defined rules.
The broadcasters already have given up TV channels 52-69 to commercial and public safety wireless services as part of their transition to digital TV. They presumably would fight ferociously to prevent sharing channels below 52 with PLMR even if the rules mirrored the current T-band regulations that have worked well for more than 30 years. But each TV channel is 6 MHz of spectrum. If the PLMR user community could get access to only half or a third of a single broadcast channel in our most spectrum-scarce markets, it would have a significant impact on usable capacity.
The PLMR industry, other than public safety, has gotten little attention from the FCC in recent years. We’re not even sure where we will end up once the Public Safety/Homeland Security Bureau is created. Given our current lowly status, is there any realistic opportunity to get access to additional broadcast spectrum? Well, probably not, but wouldn’t it be a shame not to at least investigate whether there is a PLMR home in the last, best spectrum that will be available for mobile operations. After all, who would have believed this same industry could get TV channels 70-79 back in the 1960s and look how happily that turned out.
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