Fcc spectrum policy by UCLA Luskin School of Public Affairs

Reforming Policy to Incorporate Emerging Technologies

Joe Bravo Heather Kopeck Robert Tai Josette Velasco Dale Wong

FCC Spectrum Policy: Reforming Policy to Incorporate Emerging Technologies

Joe Bravo Heather Kopeck Robert Tai Josette Velasco Dale Wong UCLA School of Public Policy & Social Research March 25, 2004

Acknowledgements First and foremost we would like to thank our advisor Professor JR DeShazo for his invaluable assistance and generous support during this intensive process. Special thanks to our classmates Demetrius Chapin-Rienzo, Sabina Dewan, Lisa Fox, Monica Gomez, Rachel Freitas, Marian Fowler, Jessica Nierenberg, Diana Simpson, and Russell Vare for their many helpful comments and feedback. Thank you to Dr. Gadh with WINMEC and the UCLA Engineering Department, for educating us on the more technical aspects of our research. Without his assistance we would have never grasped the complicated subject of wireless devices and spectrum propagation characteristics. Special thanks to Professor Jeff Cole, Director of the Communications Policy Center at UCLA and professor at the Anderson School of Management for working with us and introducing us to experts in the field. Thanks to FCC staff Dr. Robert Pepper, Chief of Policy Development, and Lauren Van Wazer, Special Counsel to the Office Chief, in the Office of Engineering and Technology for taking time out of their busy schedules to meet with us. And for those in the experimental license division of the FCC who were patient enough to explain the process of experimental testing. We would also like to thank Daniel Sepulveda, Legislative Assistant to U.S. Senator Barbara Boxer. Thanks to Dr. Jim Davis at UCLA for his input on societal impacts of technological advancements. Finally we would like to thank James Snyder at The New America Foundation, author of The Citizens Guide to the Airwaves.

TABLE OF CONTENTS

Executive Summary .............................................................................................1 I. Introduction......................................................................................................5 Regulatory Reform ..................................................................................6 FCC Looks Forward................................................................................8 Our Contribution to the Reform Effort ...................................................9 II. Issue Background .........................................................................................11 What is Radio Spectrum?......................................................................11 What are the Characteristics of Spectrum?...........................................12 What is Governmentâ&#x20AC;&#x2122;s Role? ................................................................13 Licensed versus Unlicensed ..................................................................14 The Spectrum Policy Task Force Report..............................................17 III. Spectrum Sharing Mechanisms ..................................................................19 Increasing Unlicensed Spectrum...........................................................19 Underlay Sharing...................................................................................20 Opportunistic Sharing............................................................................20 Secondary Markets ................................................................................21 Interference Metric ................................................................................22 IV. Towards a New Definition of Spectrum Rights ......................................23 V. FCC Notices Arising from the 2002 SPTF Report ....................................27 NOI on Additional Spectrum for Unlicensed Devices.........................27 NOI on "Interference Temperature" for Interference Management.....33 NPRM on Cognitive Radio Technologies (CRTs)...............................39 VI. Summary of Analysis ................................................................................44 VII. Recommendations .....................................................................................48 Bibliography.......................................................................................................56 Appendix A: FCC Background ................................................................................... 60

Executive Summary The FCCâ&#x20AC;&#x2122;s Predicament Currently, the Federal Communications Commission (FCC) faces the challenge of managing spectrum policy in a way that meets todayâ&#x20AC;&#x2122;s consumer demands and incorporates emerging technologies. Spectrum access demands have not been met as a result of antiquated spectrum policies.

Emerging technologies can increase the

opportunities for spectrum access and utilization, but the FCC must undertake spectrum policy reform in order for their benefits to be realized. The critical question focuses on what kind of reform. This report addresses the following question: What strategy should the FCC pursue to achieve spectrum policy that effectively incorporates emerging technologies to facilitate efficient spectrum use? The delivery of the full benefits of these technologies is impeded by three major factors. The first impediment is the uncertainty regarding the technical capabilities of new spectrum sharing technologies, such as cognitive radio technologies. The second impediment is the political opposition by current licensees to changing spectrum policy and usage rights.

Finally, there is the impediment created by current regulatory

constraints. The FCC has already begun rethinking its management of spectrum policy, but has yet to establish a clear outline of the shape that policy reform will take. The FCC has already created the momentum for spectrum policy change. By examining three recent formal notices introduced by the FCC, this report provides an analysis of the nature and dimensions of the political debate over spectrum policy reform, the arguments regarding technological uncertainty, and regulatory limitations of the FCC.

Recommendations This report examines the near-term and long-term barriers that these impediments will create for the FCC. Spectrum policy reform will likely take many years, and this report makes recommendations that provide a road map for the FCCâ&#x20AC;&#x2122;s reform efforts. In order to effectively incorporate emerging technologies in the most feasible manner possible given impediments to change, we recommend a phased implementation plan. This phased approach, consisting of two non-concurrent phases, will allow the FCC to strategically target the impediments to spectrum reform.

Phase I targets technological

uncertainty and political opposition to the utilization of spectrum sharing mechanisms. Phase II targets the regulatory constraints to spectrum change. Phase I: Increase Unlicensed Spectrum AND Develop a Metric for Measuring Interference Phase I has two aspects. The first aspect is maintaining the momentum for increased unlicensed spectrum and the second is developing an interference metric. Increasing Unlicensed Spectrum It is recommended that the FCC allocate more dedicated unlicensed spectrum. Increasing unlicensed spectrum is the most feasible initial step in spectrum policy reform because it allows for the use and experimentation of cognitive radio technologies in order to better prove and establish their capabilities. Increasing unlicensed spectrum serves two objectives: first, it allows for the incorporation of emerging technologies in the shortest term possible and second, it provides an experimental arena for these emerging technologies to establish proof for their capabilities. Increased spectrum will encourage

growth of the market for spectrum sharing devices and create a political constituency that can challenge the power of incumbents. It will also reduce technological uncertainty through â&#x20AC;&#x153;real-lifeâ&#x20AC;? experimentation. Developing an Interference Metric The FCC must develop an interference metric. A robust interference metric can be used to overcome all three impediments to spectrum reform. If the FCC is able to provide an interference metric, many of the arguments against spectrum sharing can be diverted. The FCC should continue evaluating the Interference Temperature Approach for Interference Management as it relates to various forms of spectrum sharing. Phase II: Implementing Spectrum Sharing through Smart Technologies in Licensed Bands There are certain conditions that must be met prior to moving on to Phase II. Phase II is contingent upon both establishing the proven capabilities of cognitive radio technologies, and the development of robust interference metric for different bands. Once these are met, the FCC can begin implementing some form of spectrum sharing, whether through opportunistic sharing or underlay sharing or both, in the licensed bands. The use of these interference mitigating mechanisms however, will depend on the characteristics of the licensed band. Both underlay and opportunistic sharing will use the interference temperature metric in its protocols for operating in the licensed bands. It is recommended that the FCC first allow for underlay sharing because it utilizes proven technology. Then, it should pursue the use of cognitive radio technologies through opportunistic sharing.

Phase II may not be ready for implementation for at least another ten years. The pace of achieving the goals of Phase I will determine the readiness of the FCC to implement Phase II.

The conditional nature of Phase II makes it imperative that

overwhelming support be given for the objectives laid out in Phase I. This gives the FCC a more tenable position on the issue of spectrum sharing using cognitive radio technologies.

I. Introduction Whether we are listening to the radio, talking on a mobile phone, or accessing the Internet wirelessly, the use of the radio spectrum permeates our everyday life. The radio spectrum is the invisible medium through which everyday wireless devices operate. TV and radio broadcasters, cellular phone companies, and wireless Internet providers offer the most prominent uses for devices utilizing the radio spectrum. The radio spectrum allows information to travel freely through the airwaves, unencumbered from costly infrastructure and most physical barriers. In this high tech era, the ability to have mobile access to information and communications at high speeds is increasingly valuable. As technology has advanced, the demand for radio spectrum has grown dramatically. This demand has been constrained by old spectrum policies and outdated conceptions about how spectrum is used. Demand has increased across the nation for services and devices that use spectrum. Many areas such as rural America have previously been underserved and denied access to low cost, high-speed information because of the high costs of infrastructure to bring these services to those areas. Spectrum reform is needed to meet increasing demand, but reform will be difficult. Spectrum policy reform is encumbered by several factors. These are uncertainty regarding the technical capabilities of new spectrum sharing devices, political opposition to changing spectrum usage rights, and regulatory impediments. As a result, the focus of this paper will be on overcoming these barriers. Specifically, we will address the question What strategy should the FCC pursue to achieve spectrum policy that effectively incorporates emerging technologies to facilitate efficient spectrum use?

Regulatory Reform The Federal Communications Commission (FCC) is the federal agency responsible for setting spectrum policy and determining who is able to use specific parts of the spectrum for various purposes. Therefore, we will focus on current FCC policies and pending changes to these policies. The FCC has the authority to allocate licenses to parts of the spectrum, known as frequencies, for various uses. Such designation of frequencies aims to minimize radio interference between signals, which degrade signal quality to wireless devices. The Communications Act of 1934 directed the FCC to develop models of “property rights” for license holders. Historically, the allocation of licenses, which granted holders the ability to access and utilize spectrum for specific services and uses, was crucial to ensuring customer protection from harmful interference. The earliest rights models were based on the engineering capabilities of the 1920’s and 1930’s. Licenses were based on the specific frequencies, geographic location, power levels, and rules regarding the particular types of services a licensee could offer. This allowed consumers of radio and later television broadcasting to listen and view the services provided by broadcasters without interference.

These strict rules protected

broadcasters against interference, and also provided exclusive use to a band of frequencies. Because access to a band was restricted, spectrum became increasingly valuable and scarce. In 2002, the New America Foundation estimated the value of spectrum to be $782 billion.1 By comparison McDonalds and Bill Gates combined have an estimated worth of less than $85 billion.2

1 2

J.H. Snider, “The Citizen’s Guide to the Airwaves”, New America Foundation p. 11 Ibid

Spectrum acts as a prime source to deliver information, either through broadcasting, cellular service, wireless Internet access, and communication between emergency service providers. Currently, there is no substitute for the use of spectrum to deliver these types of wireless services, which makes access and use of spectrum incredibly valuable. Prior to the adoption of the Communications Act of 1934 spectrum operated under a commons environment.

This created a free -for â&#x20AC;&#x201C;all that caused

rampant device interference and eventually, spectrum suffered from the â&#x20AC;&#x153;tragedy of commons.â&#x20AC;? In order to control against interference, the 1934 Act authorized the FCC to grant spectrum licenses which conferred specific usage rights. As a scarce resource incumbent license holders have operated with a limited number of competitors. While incumbent license holders do have interference concerns, they are also aware that an increase in access to spectrum may cause unwanted competition. The advent of new technology that avoids radio signal interference may eventually render current FCC regulations obsolete. Such technology includes both software that dynamically allows devises to share frequencies and devices that utilize low powered signals. The most valuable and useful part of the radio spectrum has already been allocated and licensed. This inhibits the innovation of future wireless uses and devices. In addition, new technologies, which take advantage of more efficient spectrum management, will likely boost economic growth. The full benefits of these technologies however, cannot be realized because current regulations do not foster sharing of frequencies.

FCC Looks Forward To take full advantage of new technology, the FCC has been rethinking the way it manages spectrum. In November 2002 the Spectrum Policy Task Force (SPTF), an advisory body under the direction of Chairman Michael Powell, examined the state of spectrum management. The SPTF report urged the Commission to define spectrum use in four dimensions- frequency, space (location), power, and time,- a dimension previously not considered. The report also noted that technological advances may allow for greater access to spectrum without creating harmful interference. The task force considered several policy mechanisms, which could be used to change spectrum management. These are increasing unlicensed spectrum, secondary markets, underlay sharing, opportunistic sharing, and the creation of an interference metric.

In response to the report the FCC introduced three formal notices which

proposed regulatory changes to encourage development and use of these mechanisms. While increasing the amount of dedicated unlicensed spectrum and the use of secondary markets are generally supported by both license holders and spectrum sharing advocates, the use of underlays, opportunistic sharing, and the creation of an interference metric are highly contentious.

There is little agreement on the technical feasibility of these

approaches and uncertainty as to how use of these mechanisms will affect spectrum rights. Unless this uncertainty is addressed, the regulatory changes that can capitalize on these spectrum sharing mechanisms will not be realized.

Our Contribution to the Reform Effort To understand how impediments to spectrum policy reform can be overcome, we will undertake an analysis of three notices and their comments. Through careful analysis of these notices, their comments, and interviews with policy-makers and technical experts, we attempt to carefully identify the nature of these impediments and recommend a mitigation strategy. These notices were chosen because they exemplify the debate over how policy should be changed. The three notices are: â&#x20AC;˘

Notice of Inquiry (NOI) for Additional Spectrum for Unlicensed Devices; ET Docket No. 02-380; December 2002

â&#x20AC;˘

Notice of Inquiry (NOI) Regarding "Interference Temperature" Approach for Interference Management; ET Docket No. 03-237; November 2003

â&#x20AC;˘

Notice of Proposed Rule Making and Order (NPRM) regarding Cognitive Radio Technologies; ET Docket No. 03-108; December 2003 We will examine the policy changes proposed in each notice and their effects.

Each notice has received public comments from various stakeholders and incumbent license holders and illustrates key issues that must be dealt with prior to implementation. The FCC must make several decisions related to each notice. Changes to spectrum policy will likely take many years, and therefore we propose that changes be phased in over time. A phased plan will strategically target political opposition and technological uncertainty. Our recommendations will advise the FCC on how to proceed.

Organization of the Report Section II will provide background information on spectrum usage as well as the governmentâ&#x20AC;&#x2122;s role.

Section III provides a description of the mechanisms for spectrum

sharing. In Section IV outlines current rights models and how utilization of spectrum alters licensee rights. In Section V illustrates the political response to FCC notices that proposed changes to spectrum policy that will allow greater sharing. Section VI will provide a summary of analysis pertaining to the spectrum sharing mechanisms. Finally, Section VII provides recommendations on how the FCC should proceed.

II. Issue Background What is Radio Spectrum? Wireless communication is found in everyday devices such as cordless phones, broadcast television, cellular phones, AM/FM radio, and even garage door openers. Wireless devices communicate with each other by Figure 1: Cell towers transmit signals to cell phones over spectrum

transmitting and receiving signals over the airwaves, otherwise known as the electromagnetic spectrum.

Transmitters, such as cellular phone towers, radiate signals to receivers, in this case cellular phones. The electromagnetic spectrum is composed of invisible electromagnetic radiation, which is measured by frequency. Radio spectrum is the part of the electromagnetic radiation lying between the frequency limits of 9 kilohertz (thousand hertz) and 300 gigahertz (billion hertz). The radio spectrum is divided into sections of frequencies called â&#x20AC;&#x153;bandsâ&#x20AC;?. The wider the band, the more information capacity that band can carry. This concept is known as bandwidth. Different devices operate on specific frequency bands, as shown in Figure 2, which represents the broadcast bands.

For example, FM

radio transmits in a band of frequencies between 88 megahertz (million hertz) and 108 megahertz. Stations broadcast on specific frequencies, and FM radios tune to those frequencies. This band of spectrum is solely for the use of FM radio broadcasts, and nothing else. Frequency bands that are licensed are similarly restricted to only licensee devices.

Figure 2: Sample of Frequency Assignments Used by Everyday Devices

Source: J.H. Snyder; “The Citizen’s Guide to the Airwaves”; New America Foundation 2003

What are the Characteristics of Spectrum? Lower frequency bands are more valuable Like real estate, certain bands of spectrum are more valuable than others. Lower frequency spectrum bands have longer wavelengths, which allow for penetration through barriers such as walls, trees, and bad weather better than higher frequency spectrum. Higher frequency signals have a lower ability to permeate through a barrier. Therefore barrier penetration dictates that lower frequency bands are far more valuable than higher frequency bands. Interference ?

When two or more signals share the same frequency

Figure 3: Interference occurs in receivers when two or more signals occupy the same space

space,

receivers

may

have

difficulty distinguishing between them. This phenomenon is called interference. In physical terms, interference is analogous to trying to hold a conversation with another person at a loud party. A fuzzy TV picture is a common example of interference. Interference is the primary reason why the US government regulates spectrum.

What is Government’s Role? In 1934 Congress passed the first Communications Act, which established the FCC and set the basis for spectrum regulation. The FCC was placed in charge of protecting radio broadcasters and other spectrum license holders from interference that would infringe on their services. To ensure interference protection, the FCC strictly regulates license holders’ usage of their assigned spectrum allocations, such as what services they could provide, the location and signal power of their transmitters, and specifications on their receiver devices. Prior to 1994, the FCC licensed spectrum at no charge. Currently, it employs an auction mechanism for new licenses.

For a full

explanation of the FCC’s rule changing process, see Appendix A. The FCC does not regulate the spectrum frequencies that are designated for federal use. The National Telecommunications and Information Administration (NTIA) regulates the large portions of the radio spectrum reserved for federal and military use. The uses of these undisclosed frequencies are kept secret due to national security reasons. This report does not address the spectrum bands regulated by the NTIA. Though the FCC, under the Communications Act has the authority to create spectrum allocation policy, Congress retains the authority to negate FCC decisions as well as to create new legislation. Over the past twenty years, the rise of wireless devices

and innovations has compelled legislative changes to the 1934 Communications Act. This has enabled the FCC to implement more flexible spectrum policies. In the 1983, Congress amended the Communications Act to encourage technological advances and gave the FCC authority to change regulations whenever technological advances present themselves.

The amendment states, “It shall be the policy of the United States to

encourage the provision of new technologies and services to the public. Any person or party (other than the Commission) who opposes a new technology or service proposed to be permitted under this Act shall have the burden to demonstrate that such proposal is inconsistent with the public interest.”3 The rights of licensees was also expanded by the Communications Act of 1996, which gave license holders greater discretion over how they could use their spectrum allocation. To help accommodate the rapid proliferation of wireless markets, Congress transferred more than 200 MHz of federal spectrum to nonfederal use in 1990s4. Despite some headway by the FCC in adopting more flexible policies, modern spectrum management continues to rely on outmoded procedures and policies that fail to incorporate technologies that would mitigate the need for strict regulation.

Licensed versus Unlicensed Greater than 98% of the spectrum that the FCC manages is licensed to users that hold exclusive rights to operate on those bands. 5 The remaining spectrum under FCC jurisdiction is unlicensed, which means that anyone can use those frequencies, but

Communications Act 1934, 47 U.S.C. § 157 US GAO 03-277, “Telecommunications, Comprehensive Review of Spectrum Management with Broad Stakeholder Involvement is Needed”, January 2003. 5 Snider, J.H., “The Citizen’s Guide to the Airwaves”, New America Foundation, 2003 4

without guarantee against interference.6 In addition to no protection against interference, FCC rules dictate that unlicensed devices must not cause harmful interference to licensed services. 7 Radios, TVs, and cellular phones operate on licensed frequency bands where service providers are granted exclusive use for their devices. Unlicensed spectrum, on the other hand is shared, open to all, and self managed. Like public parks, highways, and waterways, unlicensed spectrum is a “commons” environment. Even though unlicensed spectrum accounts for such a small portion of the entire radio spectrum, the majority of household wireless devices operate on it. Devices that operate on unlicensed spectrum include cordless telephones, remote controls, microwave ovens, walkie-talkies, baby monitors, and Wi-Fi local area networks that provide high-speed wireless Internet access. So why does not the unlicensed parts of spectrum suffer from the “tragedy of the commons?” The answer primarily lies in the fact that all unlicensed devices are mandated by the FCC to operate at a very low power, often limiting transmission range. Therefore spectrum use for unlicensed devices is often highly localized, where most unlicensed devices’ range are measured in mere yards rather than miles. Short signal ranges lessen the instances of interference from devices using similar frequencies. For example, a person’s cordless telephone most likely will not interfere with her neighbor’s cordless telephone because of the limited range of the device signals. Based on this concept, a revolutionary engineering technique known as “spread spectrum” has emerged in the unlicensed spectrum world.

The idea behind spread

spectrum is that low-powered transmission spread throughout many frequencies, not only

Unlicensed spectrum bands include the following: 902-928 MHz, 1.91-1.93 GHz, 2.39-2.4835 GHz, 5.155.35 GHz, 5.725-5.825 GHz, 57-64 GHz. 7 Title 47 of the Code of Federal Regulations, part 15

mitigates interference, but also increase transmission range for wide broadcast services (Werbach).8 Figure 4: Examples of Devices using Licensed and Unlicensed Spectrum

Using Licensed Spectrum

Using Unlicensed Spectrum

Broadcast TV, Cell phones, AM/FM radio

Remote Controls, Cordless phones, Wi-Fi networks, walkie-talkies, E-Z pass tolls, security systems, microwaves

Spread Spectrum technologies such as Wi-Fi, Bluetooth, and other computer networking applications have thrived in recent years within unlicensed spectrum. Figure 5 illustrates the recent tremendous growth of spread spectrum technologies operating in unlicensed spectrum.9

Since unlicensed spectrum is fostering such tremendous

advancement in new wireless devices, the FCC is considering more flexible spectrum management policies that would accommodate reform. In 2002, FCC Chairman Michael Powell established the Spectrum Policy Task Force to investigate new technologies and mechanisms that would allow for changes to spectrum policy.

Wireless Fidelity (Wi-Fi), which is the most prominent spread spectrum technology operating in unlicensed spectrum space, offers wireless broadband Internet networking at data transmission speeds of 11 to 54 Mbps. Conventional Wi-Fi only extends to a few hundred feet in range from its transmission point. However, using multiple transmission points and dynamically linking them together allows for wider service Wi-Fi coverage. This technique is known as mesh networking. In addition to low-power transmission across multiple frequency channels, high-powered transmission over a very narrow beam can also mitigate harmful interference. This particular spread spectrum technique employs the use of directional antennas. While it is possible to implement wide area wireless services through spread spectrum techniques across unlicensed bands, the complexity and equipment cost needed to do so would put such a plan at a distinct disadvantage to licensed, high-power broadcast service. 9 FCC Spectrum Policy Task Force, Report of the Unlicensed Devices & Experimental Licenses Working Group, November 15, 2002

Figure 5: Spread Spectrum Equipment Authorizations in Part 15 Spread Spectrum Equipment Unlicensed Spectrum Authorizations

600 500 400 300 200 100 0 1988

1990

1992

1994

1996

Calendar Year

1998

2000

2002 (T hr ough 8/ 02)

The Spectrum Policy Task Force Report

The Spectrum Policy Task Force was comprised of senior staff from a cross section of the various FCC bureaus and offices. Members included policy makers, attorneys, engineers, and economists from within the FCC to ensure a diverse approach to the issue of spectrum management. The mission of the task force was to evaluate spectrum management and recommend changes to spectrum policy. Furthermore, the task force considered policy mechanisms that could allow for more efficient use of spectrum. These mechanisms are increasing unlicensed spectrum, underlay sharing, opportunistic sharing, secondary markets, and the interference metric. In November 2002, the task force issued its full report and concluded that addressing the problem of access to the spectrum goes beyond traditional thinking. Such conventional wisdom

about spectrum has centered on the idea that spectrum is a finite public resource and that management policies should focus on scarcity of spectrum. However, the notion of scarcity was challenged by the identification of spectrum sharing mechanisms.

III. Spectrum Sharing Mechanisms There are five spectrum sharing mechanisms that allow for the incorporation of emerging technologies into spectrum policy. They are: 1. 2. 3. 4. 5.

Increasing unlicensed spectrum Underlay Sharing Opportunistic Sharing Secondary Markets Interference Metric

1. Increasing Unlicensed Spectrum In the 1980s, two particular changes to FCC rules for unlicensed devices fostered the development of new and innovative technologies. In 1985, a change to the FCC rules allowed certain unlicensed transmitters to operate in bands allocated for industrial, scientific, and medical (ISM) equipment. In 1989, another change to the FCC rules allowed for even more flexibility in the type of unlicensed transmitter permitted to operate in the ISM bands. Under these revised rules for unlicensed devices, a multitude of devices have been developed for consumer and business use within the ISM bands. For example, wireless Internet devices, certain cordless phones, home security systems, anti-theft systems, and wireless computer keyboards are among the products that have been developed and point to the success of this policy mechanism. Increasing unlicensed spectrum will further expand public use and acceptance of devices, which share the same spectrum.

2. Underlay Sharing Part 15 of the FCC Rules10 allows unlicensed Device Power

High-powered Licensed Devices Interference Threshold Low-power Underlay Devices

Figure 6: Underlay sharing: Unlicensed low-powered devices avoid interference and share spectrum bands with licensed devices by operating below the interference

spread

spectrum

devices,

subject to strict power limits, to operate in certain Licensed

licensed

frequency

transmitters

routinely

bands. emit

signals at high power levels, to maximize coverage. Licensed device receivers are

geared toward these high-powered signals, and thus ignore lower-powered signals below a certain interference threshold. Therefore in an underlay sharing scheme, unlicensed transmitters with power restrictions can operate in the same frequency bands as highpowered licensed devices without causing harmful interference. The caveat to low-power device restrictions is that the range of transmission is often highly localized to short distances. However, multiple underlay transmission points can be dynamically meshed together to expand the area of service transmission. The major drawback to this practice is the added cost of equipment needed to provide a suitable wide service area environment to rival that of licensed broadcasters.

3. Opportunistic Sharing Opportunistic sharing incorporates the use of software-defined â&#x20AC;&#x153;smartâ&#x20AC;? or cognitive devices.

These cognitive radio devices automatically detect and occupy

unused portions of spectrum within bands at any given time, frequency, power, location or any other dimension for which spectrum fluctuates. It is this exploitation of spectrum 10

Title 47 of the Code of Federal Regulations, part 15

dimensions that makes the use of cognitive, spectrum sensing devices so promising for future spectrum management. Cognitive radio technologies (CRTs), which operate on defined guidelines enabled by its software, can opportunistically sense and seek out unused spectrum within a licensed environment. The unused or idle portions of licensed spectrum are called “white-space”. CRTs can also exploit “guard bands”, which are unused spectrum surrounding licensed bands that were assigned to protect licensed signals from neighboring interference. Exploitation of white-space and guard bands through opportunistic sharing can effectively increase the capacity of radio spectrum.

4. Secondary Markets The use of secondary markets provides an alternative to overcome regulatory impediments that hinder spectrum reform. The creation of a secondary market where a licensee would lease its part of the spectrum to another party that uses CRTs represents a shared spectrum access opportunity. Though certain secondary markets have already been established in spectrum such as with many wireless radio services, the incorporation of emerging cognitive technologies can make the whole process easier and even more flexible11.

This is

because the access mechanism, which identifies available leasing opportunities, and the reversion mechanism, which reclaims spectrum from the lessee, would be automated functions of the cognitive radio device throughout the secondary market process.

December 2003 FCC Notice of Proposed Rulemaking and Order, ET Docket No. 03-108

5. Interference Metric The FCC lacks a metric by which it measures levels of interference. Historically, the Commission has arbitrated interference complaints by license holders on a case-bycase basis. The task force has noted that qualitative measurement of interference is not an effective long-term approach to interference management or protection. Instead, they recommend that the FCC develop quantitative metrics for interference levels. The task force report introduced the concept of an “interference temperature” as a quantitative solution for underlay sharing specifically. Interference temperature refers to the total cumulative effect of all undesired radio frequency “noise” that a receiver picks up at any given time. With a metric to measure ambient interference, interference caps could be established. The caps would define the maximum permissible interference for licensed spectrum bands, and therefore would promote new opportunities for underlay sharing.

IV. Towards a New Definition of Spectrum Rights Spectrum Rights Models The rights models describe the extent to which spectrum users are subject to license requirements and the levels of interference protection, if any, they are entitled to from the FCC. The FCC primarily has used three rights models. These rights models are used simultaneously and apply to different services and frequency bands.

Command and Control Model This is the traditional model of rights. The majority of spectrum that is licensed operates under this model. Broadcasting bands, both television and radio, exist under strict and very specific rules. License holders have exclusive rights to a particular frequency and rights to protection against harmful interference. This rights model also has many specific regulations attached to the access to a frequency. Under Command and Control, the FCC regulates many aspects of the use including: the specific type of service provided, specific location, height, and power levels of transmitter towers. Any license holder who wishes to change the terms of their license must gain approval of the FCC first.

Exclusive Use Model Under this model, licensees have some of the same rights as they do under the Command and Control Model.

However, the Exclusive Use Model is much more

flexible and allows licensee to transfer their rights.

License holders have formal

protection from interference. Aside from being subject to some limited technical rules,

license holders under this model have flexibility to determine services, and the manner in which a service is provided. Cellular PCS rules are an example of the exclusive use model. The license holder does not have to gain FCC approval for any changes to the service they provide or the manner in which they provide it. For example, cellular service providers are limited to place their towers in a general geographic area but they do not have the same tower regulations that a television broadcaster must have. Cellular service providers are free to determine the best way to serve their customers, be it with one large tower, or several towers.

Commons Model The Commons Model allows for the sharing of frequencies.

An unlimited

number of users may access these frequencies. Use is only governed by certain technical standards placed on devices that access the frequencies.

Those using the common

frequencies do not have the right to protection from interference. Wi-Fi devices utilize unlicensed frequencies. Users of the commons model do not have any protection against interference nor can they cause interference to license holders. The Spectrum Policy Task Force highlighted the need for the FCC to move towards a more flexible rights model. Historically the FCC has primarily used the Command & Control model. This model is very cumbersome and inflexible. Over the past few decades the FCC has increased its use of the Exclusive Use model. However, the FCC now realizes the benefits of the Commons Model, which has proven to be a viable alternative by which to increase access to spectrum. It has also induced advances in consumer goods and services, and has spurred competition. In facilitating the use of

the policy mechanisms identified earlier, the FCC can move towards greater use of the commons model.

Towards Greater Use of the Commons Model

Command & Control

Exclusive Rights

Secondary Markets

Underlay Sharing

Opportunistic Commons Sharing

Increase Unlicensed Spectrum Throughout

The diagram above shows the relationship between the policy mechanisms and the rights models. Opportunistic sharing is most akin to the Commons Model than any of the other spectrum sharing policy mechanisms. By incorporating each of the spectrum sharing mechanisms, the Commission is encouraging more efficient use of spectrum and greater competition. This competition in turn will spur advances in technology and greater benefits to the public. Incorporating these mechanisms will also redefine rights to spectrum use and may lead to the diminishing need for exclusive use licenses. As the FCC moves to the right of the continuum, it is unlikely that license holders will go quietly. In fact, license holders such as broadcasting corporations (both radio and television), cellular service providers, satellite television providers, government agencies at all levels, and many others all have a huge stake in ensuring their dedicated spectrum remains within their control. Collectively, these incumbents control virtually all of the

value of the spectrum. Any additional players on the spectrum field will only make their piece of the pie smaller. A string of FCC Notices followed the SPTF Report that attempted to utilize these policy mechanisms to move towards more commons. These notices highlight the key impediments to implementing these mechanisms.

V. FCC Notices Arising From 2002 SPTF Report

In reaction to the findings of the report the FCC has released the following three notices that attempt to utilize the aforementioned policy mechanisms by which spectrum management may be changed. These notices are interrelated and complement each other. •

Notice of Inquiry (NOI) for Additional Spectrum for Unlicensed Devices; ET Docket No. 02-380; December 2002

•

Notice of Inquiry (NOI) Regarding "Interference Temperature" Approach for Interference Management; ET Docket No. 03-237; November 2003

•

Notice of Proposed Rule Making and Order (NPRM) regarding Cognitive Radio Technologies; ET Docket No. 03-108; December 2003

NOI for Additional Spectrum for Unlicensed Devices Under the FCC’s revised rules for unlicensed devices, a multitude of devices have been developed for consumer and business use within the ISM bands. Recognizing the tremendous economic and public benefits that could be reaped as a result of allowing the use of unlicensed devices in additional bands, the FCC identified the TV broadcast frequencies as potential bands for the use of such unlicensed devices. However, as evidenced by the comments to this NOI, political opposition to allowing unlicensed users in the broadcast band is strong. Moreover, there is substantial uncertainty regarding the technical feasibility of using various opportunistic and underlay mechanisms to share licensed spectrum.

On December 20, 2002, the FCC released an NOI in the matter of â&#x20AC;&#x153;Additional Spectrum for Unlicensed Devices Below 900 MHz and in the 3 GHz Bandâ&#x20AC;?. The inquiry sought public comments regarding the possibility of permitting the use of unlicensed devices in the TV broadcast spectrum, which lies below 900 MHz. Furthermore, the inquiry sought comments on the requirements for interference mitigation to make sure that such unlicensed operations do not harm licensed and incumbent services.

Potential Access for Unlicensed Spectrum in Broadcast Bands The allocation of dedicated unlicensed spectrum has previously only occurred in higher, less valuable, frequency bands. The proposed rules would provide access for unlicensed users in the more valuable lower frequency bands that had previously been considered scarce. Access to these bands could further spawn innovative technologies. This NOI focuses on the unused TV channel bands that at any given time or location are free as a result of interference prevention rules. FCC rules require certain separation between channels to inhibit interference.

The bands of empty space that separate

broadcast frequencies from one another are referred to as guard bands. These rules give rise to empty bands within the TV broadcast spectrum. These guard bands could provide access for unlicensed spectrum activities. This NOI also considers the effects of the FCC mandated transition for TV stations from analog to digital transmissions. The efficiencies gained from the transition include the fact that digital TV stations will use only channels 2-51, thereby freeing channels 52-69 which have been reassigned for other purposes. During the transition phase, each station is allowed to broadcast on one digital channel and one analog channel.

Upon completion of the transition, each station will broadcast only on one digital channel. Again, interference prevention rules will mean that certain TV channels in a given area will not be fully utilized due to separation requirements. Vacant bands exist during the digital TV transition and will exist afterwards.

Comments to this NOI Many of those who filed comments to this NOI underscore the importance of innovative technologies and the corresponding benefits to society.

To unleash the

potential of unlicensed wireless technologies, these commenters believe that the FCC should continue to explore the viability of unlicensed operations in the TV broadcast bands. Supporters of the expansion of unlicensed operations include companies in the technology sector, including Microsoft and Intel. In their respective comments, AT&T and Microsoft express optimism that allocating additional spectrum for unlicensed devices would ultimately lead to more broadband alternatives for consumers. Intel also mentions that it has conducted experiments to demonstrate that space exists for sharing spectrum within the TV broadcast bands and that unlicensed devices can operate near TV receivers without causing interference. Following this line of thought, the New America Foundation comments that a large portion of the TV broadcast spectrum remains unused and that the guard bands should be immediately dedicated to unlicensed use. Moreover, it believes that unlicensed devices should be permitted throughout the entire TV broadcast spectrum. The use of a low power underlay would allow unlicensed operations on a shared basis with licensed users. Also, because vacant bands exist at any given time, the New America Foundation

believes that the FCC should allocate the entire TV broadcast spectrum to unlicensed devices on an opportunistic basis. Finally, they emphasize that consumers should decide acceptable levels of interference rather than incumbent licensees. Despite the recognized value of spurring greater technological innovation, a number of commenters voiced opposition to the allocation of additional spectrum for unlicensed devices due to interference concerns.

Indicating that there is no assurance

that the licensed users would be protected from interference, these commenters opposed opening lower frequency bands for unlicensed use.

Those in opposition include

commercial two-way dispatch service, electrical, gas and utility members, public safety agencies, cellular service providers, and broadcasters. Public safety agencies fear that potential interference from unlicensed operations would hamper their abilities to perform first-responder, emergency services.

For

example, the County of Los Angeles is moving to digital systems, which are susceptible to losing transmissions completely in the presence of interference. Therefore, the risk of sharing spectrum with unlicensed operations is too great.

With regard to mobile

emergency communications, predicting the time and location of transmissions is an obstacle to protecting against interference. As Motorola and AT&T Wireless point out, interference problems may be better managed when licensed operations are fixed. The United Telecom Council notes the need to protect the communication activities of utility workers who operate in dangerous situations around power lines, gas pipelines, nuclear power plants, and other stations.

Additionally, several commenters assert their

opposition to allowing unlicensed operations in bands where wireless medical telemetry service (WMTS) and radio astronomy operations exist.

The American Hospital

Association comments that WMTS devices are highly sensitive and would be vulnerable to interference from unlicensed devices.

Thus, critical patient monitoring activities

would be at risk. Finally, broadcasters were strongly opposed to unlicensed sharing of their band. With the transition from analog to digital TV systems, TV channels 52-69 will be available for other uses12. Indeed, most of this band has already been reallocated. The Association for Maximum Service Television (MSTV), the National Association of Broadcasters (NAB), and the Association of Public Television Stations (APTS) issued joint comments stating that allowing unlicensed devices in the TV broadcast band would pose significant risks to the digital TV transition. MSTV, NAB, and APTS believe that unlicensed devices are not likely to have sufficient interference mitigation mechanisms. They also note that interference may cause a complete loss of service due to the nature of digital systems. Furthermore, the digital TV transition is already experiencing complex issues in need of resolution, and potential interference issues from unlicensed operations would only worsen the situation. Qualcomm and Cox Broadcasting are among the commenters who also agree that unlicensed operations in the TV broadcast band should not be considered until the end of the digital TV transition.

Because digital signals require less spectrum than analog signals, moving towards uniform digital broadcasting will free up additional capacity. The Telecommunications Act of 1996 basically required Broadcasters to transition to a digital signal. However, the transition is not considered complete until Broadcasters reach a penetration rate of 85% (i.e. 85% of households must be able to receive a digital signal).

Analysis of Comments to NOI for Additional Spectrum for Unlicensed Devices The general consensus is that there is great uncertainty as to whether underlay and opportunistic sharing of the licensed broadcast spectrum would cause harmful interference to licensed users. Broadcasters, public safety agencies, hospitals, and wireless component manufacturers all expressed skepticism about whether new technology can effectively prevent interference to vital public services. Given the fact that there is little agreement regarding the technical feasibility of smart devices to mitigate interference, incumbent interests, in particular broadcasters and public safety agencies, are likely to exert tremendous political pressure on both the FCC and Congress. These incumbents represent a very powerful political constituency. Should the FCC allow unlicensed devices in these politically contentious bands, it is likely that Congress would overturn any decision that threatens these interests. Increasing unlicensed use in lower frequency bands will require a shift in political power. Currently, the biggest supporters of increasing unlicensed use in this band are technology firms such as Intel and Microsoft, and organizations such as the New America Foundation. In order for supporters to gain political power, the market for unlicensed wireless devices must increase substantially. To achieve this, the FCC should continue to allocate unlicensed spectrum in higher frequency bands.

Bands not inhabited by

broadcasters and public safety agencies would be easier targets for increasing unlicensed spectrum. Those interests opposed to unlicensed spectrum use in lower frequency bands generally support unlicensed use in higher, less congested, frequency bands. Additional unlicensed spectrum will create additional space in which new firms may enter the

market for unlicensed devises. It will also allow technologies to further mature and reduce uncertainty surrounding sharing of frequencies. Measures that could speed up the transition to digital broadcasting could create more opportunities for increasing unlicensed use of lower band spectrum. The most prevalent objection from broadcasters to the introduction of unlicensed spectrum in broadcast bands centers on this transition. The National Association of Broadcasters strongly opposes any FCC actions in their bands until the transition is complete. There are methods that could speed up the transition process. Measures such as lobbying Congress to lower the penetration requirement or requiring cable providers to carry digital broadcasts will speed up the transition. However, these proposals will likely generate intense political opposition from both broadcasters and cable providers. Therefore, this approach may not be feasible in the near future.

NOI Regarding "Interference Temperature" for Interference Management The idea of an interference temperature metric emerged from the Spectrum Policy Task Force (SPTF) workshops that identified the need to clarify the meaning of harmful interference. According to the SPTF Report, “although the Commission’s rules and processes for managing interference have historically been effective in many bands, current interference management approaches and tools need to be reexamined.”13 Moreover, many participants in the workshops noted that the idea of “harmful interference” is “subjective and does not reflect modern technology and communications markets.”14 In order to provide greater certainty in determining acceptable interference,

13 14

Spectrum Policy Task Force Report at 26 Ibid.

the SPTF recommended that the Commission adopt “a more quantitative approach to interference management or quantitatively augment its existing rules.”15 This approach, in its view, would augment and clarify the existing definitions of interference and provide licensees greater protection against harmful interference. In addition to greater regulatory certainty, an interference temperature metric would identify underutilized bands of spectrum, via underlay sharing. The metric would establish an acceptable limit of interference in each particular band depending on geography and service type. In doing so, the Commission would be able to highlight those bands where unlicensed devices can share spectrum if the interference limit is not exceeded. The FCC hopes this will allow greater flexibility in service through the use of technology, which could access underutilized spectrum. Once the interference limit is identified, a network of devices could be set up to monitor the interference temperature for a given frequency and geography.

Users would be allowed to operate on

underutilized portions of the spectrum when the interference limit is low and would be prohibited when the limit is exceeded. The FCC, in November of 2003 issued a Notice of Inquiry to explore the issue of establishing an “Interference Temperature Metric.” The purpose of this metric would be to “quantify and manage interference and to expand available unlicensed operation in certain fixed, mobile, and satellite frequency bands.”16 By issuing the NOI, the FCC sought public comment on the technical feasibility of establishing an interference temperature metric as well as whether the Commission could use the metric to allow underlay sharing of underutilized spectrum by unlicensed devices.

15 16

November 2003 FCC Notice of Inquiry and Notice of Proposed Rulemaking, ET Docket No. 03-237 November 2003 FCC Notice of Inquiry and Notice of Proposed Rulemaking, ET Docket No. 03-237

Comments on this NOI Although there have been few comments to the Notice of Inquiry, the idea received a volume of comments in response to the SPTF Report. It can be assumed that comments to the NOI will closely resemble comments to the SPTF Report. While many agreed that the idea of monitoring the real-time interference environment is necessary, several commenting parties disagreed on the technical feasibility of establishing a metric. Additionally, incumbent licensees generally disagreed with the intended use of the metric as a mechanism to identify bands where unlicensed devices could share spectrum through underlays or by using cognitive devices. Because of the uncertainty surrounding the development of the interference metric, incumbents generally supported further study of the interference environment but opposed the use of a new metric to allow unlicensed users into their bands. Broadcasters expressed doubts about the technical feasibility of establishing an interference temperature metric. The National Association of Broadcasters and Maximum Service Television, Inc. in addition to Cingular, Verizon Wireless, Wireless Communications Association, Motorola, AT&T Wireless, CTIA, and the Wi-Fi Alliance, all claimed that the interference environment is extremely difficult to monitor. Several recommended that the metric should be developed and tested in non-broadcast bands, “particularly where the licensee controls both the transmitters and the receivers and can, therefore, efficiently monitor and control interference problems.”17 They also question the ability of cognitive devices to utilize the interference metric, particularly because they “do not exist in today’s marketplace”18

17 18

Verizon Wireless Comments at 10, WT Docket No. 02-135. Verizon Wireless Comments at 15, WT Docket No. 02-135

Public safety agencies also expressed concerns about the use of the interference temperature metric. In response to the SPTF report, the New York State Office of Technology criticized the use of the interference metric to allow unlicensed use in the public safety band.

They asserted that, “the State feels that this concept, while

interesting, does not translate well into public safety operations because it assumes an interference limited environment, which already has been shown to result in harmful loss of Public Safety communications.” They also agreed with other commenters that stated that the interference environment is too difficult to measure. Those who support the idea of the interference temperature metric expressed caution in utilizing the idea to manage spectrum and agreed that the plan should be a long-term goal. The Wi-Fi Alliance, which is composed of wireless Ethernet component manufacturers including 3Com, AMD, Cisco, Dell, Gateway, Sun, Intel, Motorola, and Sony, commented that the idea of the interference metric is needed to better understand the radio frequency environment. However, they stated that: If flexible and efficient use of the spectrum is to be fully realized, it will become increasingly difficult to pre-determine interference ranges, as the predictive modeling used to demonstrate the spectrum sharing compatibility of two or more waveforms will become increasingly complicated, time-consuming and costly.19 The Alliance’s basic claim echoes incumbent licensees’ claims that it is very difficult to accurately measure the interference environment. However, the Alliance does recognize that this approach is a long-term goal and something that should be pursued despite the inherent difficulty. Consequently, they recommend that the Commission “approach the development of quantitative standards cautiously.”20

19 20

Comments of the Wi-Fi Alliance at 5-6, ET Docket No. 02-135 Ibid. at 7

The general consensus on establishing an interference temperature metric is that further study of the “RF noise floor” or interference environment is useful and needed but should not yet determine policy. Even strong opponents to the use of the metric to free up spectrum for unlicensed sharing, such as Verizon, agree that “despite the flaws inherent in the proposed temperature model…there is a need for a more quantitative approach to addressing interference.”21

The NAB also stated that the idea “holds

significant potential as a monitoring mechanism for quantifying and understanding the interference environment.”22 Moreover, many comments stated that prior to establishing an interference temperature metric the Commission should “undertake a systematic study of the noise floor.”23

Clearly there is a need for further study of the inference

environment, despite disagreement over its application.

Analysis of Comments to NOI on “Interference Temperature” The majority of the comments to this NOI expressed skepticism regarding the use of an interference temperature to manage spectrum, although almost all acknowledged the need for an interference metric. Almost all of the incumbents support the idea of the interference temperature metric but not its application to spectrum use. The metric may ultimately provide quantitative proof that spectrum sharing in certain cases does not cause harmful interference. Should this, or another metric be tied to spectrum use licensees will be forced to share spectrum with other users. An increase of spectrum users will increase competition for licensees.

Verizon Wireless Comments at 15, WT Docket No. 02-135 Joint Comments of MSTV and NAB at 10 23 Verizon Wireless Comments at 15, WT Docket No. 02-135 22

The move towards establishing an interference temperature metric also signals a dramatic change in the way the FCC regulates spectrum use. The development of a metric could potentially weaken the ability of incumbent license holders to challenge FCC policy changes on interference grounds. If a temperature metric is established there will be substantial controversy in setting interference limits. Any increase in sharing spectrum will diminish an incumbentâ&#x20AC;&#x2122;s monopoly on specific frequency use. Consequently, policies designed to use the interference temperature metric to free up additional unlicensed spectrum will meet strong opposition from incumbent licensees who will most likely lobby Congress to overturn these rules.

Retrospective Analysis Much of the negative reaction to the idea of interference temperature could have been avoided had the notice sought comment only on the development of an interference temperature to protect licensees from harmful interference or to further study the noise floor in different bands. As a practical approach, the FCC should not have linked spectrum management to the development of the interference temperature metric. Because there is so much controversy over how interference can be measured, the FCC should not have added contention by linking the metric to increasing unlicensed spectrum in licensed bands. Only when the metric gathers support and adequate research of the noise floor in different bands is undertaken, can the metric realistically be proposed as a tool for spectrum management.

NPRM on Cognitive Radio Technologies (CRTs) The ability of cognitive radios to operate while avoiding interference has made the use of cognitive radio technologies (CRTs) an important issue. However, they raise increasingly complex questions about how to improve access and usage. Though a limited version of cognitive radio devices are in use today in applications such as wireless LANs and mobile wireless service networks, their ability to effectively manage interference has yet to be proven.

Currently these limited devices operate within

designated frequency bands, but there is uncertainty as to whether cognitive devices would work across frequency bands. In its 2002 Report, the SPTF recommended that the FCC should strive to remove regulatory barriers to the use of cognitive radio technologies. According to the task force, CRTs can enable more efficient use of the radio spectrum because it operates in the white or unused spaces of spectrum.24 In addition, cognitive radio technologies can facilitate secondary markets.

However, the

nature of cognitive radios and their ability to manage spectrum, at the device level, without formal FCC rules will create fierce political opposition. Opportunistic sharing may be possible through the use of cognitive radio technologies, which open spectrum for use in space, time, power, and frequency. They have the ability to sense their radiofrequency (RF) environment, and adapt their use of spectrum in response to information external to the radio.25 By using the information gathered about its RF environment, a cognitive radio would be able to determine the optimal frequencies and transmission powers to use while avoiding interference. In

November 2002 FCC Spectrum Policy Task Force Report (“Task Force Report”) ET Docket No. 02-135. December 2003 FCC News announcement: “FCC Opens Proceeding on Smart Radios,” ref: ET Docket No. 03-108.

theory, frequency licenses which were designed to prevent interference will be unnecessary. In December of 2003 the FCC began its latest spectrum related proceeding, a Notice of Proposed Rule Making and Order (NPRM) in the matter of facilitating opportunities for flexible, efficient, and reliable spectrum use employing cognitive radio technologies. The purpose of this current Notice is to set proposals and seek comment on the use and applications for cognitive radio systems, and ways to provide more flexibility for service providers, especially in rural and underserved areas. The Commission also seeks to explore ways to encourage development and deployment of these technologies, while protecting incumbents from interference. Possibilities include allowing licensed spectrum users to deploy CRTs for their own use, as well as to introduce secondary markets, in which licensees could enter into voluntary leasing agreements with third parties that use cognitive devices.

Comments to this NPRM Currently, the 75-day time limit allowed for the submission of comments has not been reached. There have been few comments posted at this time. We anticipate that many comments will be centered on the question: can cognitive radio technologies opportunistically function in licensed frequency bands while avoiding harmful interference to license holders? Incumbents, particularly Broadcasters, Cellular Companies, and Public Safety Agencies, will undoubtedly argue that cognitive radio devices are not yet a mature technology. There is a significant lack of adequate testing and proof that they can avoid

causing harmful interference if employed as part of a shared spectrum program. Proponents of the use of cognitive technologies, which most likely would include wireless component manufacturers and shared spectrum advocates, will have a hard time justifying rules that depend on the use of technologies that do not exist. However, they will argue that continued development of cognitive devices is crucial for increasing access for unlicensed devices in licensed bands. Proponents and opponents may also disagree on the value of using secondary markets to improve access for unlicensed devices. Secondary markets would increase the value of licensed spectrum for license holders. Licensees would gain the ability to enter into profitable agreements with those seeking access to spectrum, particularly in the lower frequency bands.

However, the benefits of secondary markets to incumbent

licensees will depend on the lease terms. Incumbents will predictably want to set the terms of leases in order to ensure they are protected from interference. Moreover, they will want to set the price of these leases to ensure profitability. Conversely, those seeking unlicensed spectrum through secondary markets will likely oppose rules that give incumbents too much power over the terms of the leases.

Analysis of Expected Comments to Notice Regarding the Use of Cognitive Radios This Notice is by far the most radical step towards allowing for flexible use of spectrum. Cognitive radios at present are in the developmental stage. While less robust, â&#x20AC;&#x153;smartâ&#x20AC;? technologies do exist in cellular phones, the technical capabilities are restricted to frequency hopping within the licensed band. Moreover, these technologies cannot adjust power levels or predict the presence of other devices outside their service

providerâ&#x20AC;&#x2122;s control. The ability to predict the RF environment still depends on the development of an interference temperature metric whose feasibility, as previously discussed, is hotly debated. The introduction of rule changes to facilitate use of cognitive technologies is also radical because it portends a significant shift in spectrum rights. Because cognitive radios could theoretically manage interference without formal FCC protection, the potential exists for a restructuring of spectrum rights. Currently, incumbent licensees have exclusive access to bands of spectrum because of rules designed to prevent interference. This protection creates a form of scarcity, which ultimately makes access to a band extremely valuable, because it limits competition.

Current licensed service

providers charge consumers for access to their spectrum, which is guaranteed against harmful outside interference.

If interference rules are made irrelevant by cognitive

devices, consumers will ultimately decide which services they want to use at a particular time. Therefore, users would not have the exclusive right to operate in a specific band. Demand would dictate spectrum use rather than FCC rules.

Protection against

interference will be achieved through technical protocols built into cognitive devices. This new model of spectrum rights would fundamentally change the current business models of license holders. Opportunistic sharing of previously exclusive use spectrum will increase access to spectrum thereby increasing competition.

License

holders who currently provide services to consumers will not want any additional competition, because it will lower the value of the spectrum they currently control. Of course, all of this depends on the details of interference rights as well as the development

of robust cognitive devices. Consequently, a shift in policy towards the use of cognitive radios to manage interference will be fiercely opposed by incumbent licensees.

VI. Summary of Analysis By analyzing three recent formal notices introduced by the FCC regarding the spectrum sharing mechanisms, this report lays out the debate over spectrum policy reform.

It also highlights the technological uncertainty, political opposition, and

regulatory constraints which inhibit the use of these mechanisms. Each mechanism faces distinct obstacles and requires specific strategies to overcome them. The following is a summary of the analysis of the obstacles to implementing these mechanisms.

1. Increasing Unlicensed Spectrum Following the commercial success of Wi-Fi and other unlicensed networking technologies, the wireless industry will continue to clamor for new markets using unlicensed spectrum. As services and devices operating in unlicensed spectrum continue to proliferate, so will the demands of the wireless industry for more unlicensed bands. Unused and underutilized spectrum within the licensed broadcast bands will be specifically targeted for unlicensed expansion.

Incumbent license holders will feel

growing pressure from not only industry, but also the growing wireless community. Incumbent licensees will then need to be more accommodating to this evolution of public behavior. Wide public acceptance of increasing unlicensed spectrum is likely to reduce political impediments to spectrum reform, and thereby increase the likelihood that regulatory change will occur. Spectrum reform advocates recognize the tremendous economic and public benefits that could be reaped as a result of allowing the use of unlicensed devices in additional bands, and thus the notion of more dedicated spectrum for unlicensed operations is a distinct consideration.

2. Underlay Sharing In 2002, the FCC authorized the use of ultra-wideband (UWB) technology, a form of spread spectrum technology limited to a range of 10 meters, to underlay some licensed bands. The FCCâ&#x20AC;&#x2122;s decision to allow the use of UWB in licensed bands indicates that emerging underlay-sharing technologies will be a prominent mechanism for future spectrum policy reform. The possibility of unfettered underlay sharing in licensed bands is plausible, given the FCCâ&#x20AC;&#x2122;s stance on UWB.

In addition, the spread spectrum technology used for

underlay schemes is relatively advanced and successful, especially within unlicensed bands.

This should help satisfy technical uncertainty impediments with regard to

spectrum reform. The FCC should emphasize the successes and advancements of spread spectrum to quell opposition from license holders.

This would diminish political

obstacles toward spectrum sharing and reform.

3. Opportunistic Sharing License holders continue to question the maturation of CRTs, and feel that opportunistic sharing technology does not properly protect their services from harmful interference. Like underlay, opportunistic sharing allows for the possibility of more effective and efficient spectrum use. Ultimately it could even lead to the elimination of most spectrum regulations. However the development of CRTs for opportunistic sharing is far behind the advancements of underlay sharing. This makes opportunistic sharing a far more politically contentious issue among license holders.

4. Secondary Markets The wider use of secondary markets reduces political barriers to spectrum reform by allowing licensees to be compensated for sharing their spectrum. Thus, incumbent licensees would be more agreeable to spectrum reform that includes secondary markets. Technical requirements, however, may inhibit the outright use of CRTs as part of leasing agreements. This secondary market application would be best suited for the public safety spectrum because much of that part of the spectrum goes unused for most of the time, except during emergencies, when it is used intensively. “Interruptible spectrum leasing” is a type of secondary market agreement that can be considered.26 In this leasing arrangement, the public safety entity can lease its spectrum space to a provider and be able to “interrupt” their service during emergencies. Cognitive radio technologies are crucial in the development of this type of arrangement because the “interruption” would be communicated between the devices rather than the users, due to the inherent access and reversion mechanisms of these smart devices.

5. Interference Metric Additional interference metrics should also be devised for opportunistic sharing. By providing a measure by which to judge spectrum sharing technologies, such a metric would help to overcome the uncertainty impediment as to technologies which promote spectrum efficiency actually work. An interference temperature metric would clarify the existing definitions of interference and provide licensees greater protection against harmful interference.

In addition to greater regulatory certainty, an interference

temperature metric would identify underutilized bands of spectrum. 26

However, both

Ibid.

proponents and opponents of the interference temperature are wary of this particular metric. Opponents do not believe the metric will lead to sufficient protection from harmful interference.

Proponents do not necessarily want to be beholden to the

interference caps, which interference temperature would create.

VII. Recommendations Based on our analysis of the FCC notices and the spectrum sharing policy mechanisms we will recommend a phased implementation plan that will strategically target the impediments to utilizing the spectrum sharing mechanisms. Phased Implementation Plan Spectrum policy reform will likely take many years, and this reportâ&#x20AC;&#x2122;s recommendations offer a road map for the FCCâ&#x20AC;&#x2122;s reform efforts. In order to effectively incorporate emerging technologies in the most feasible manner possible given impediments to change, we recommend a phased implementation plan. This phased approach, consisting of two non-concurrent phases, will allow the FCC to strategically target the impediments to spectrum change. Again these impediments are: technological uncertainty, political opposition, and regulatory constraints. Phase I: Increase Unlicensed Spectrum AND Develop Interference Metric Phase I has two aspects. The first aspect is maintaining the momentum for increased unlicensed spectrum and the second is developing interference metrics.

Increasing Unlicensed Spectrum It is recommended that the FCC allocate more dedicated unlicensed spectrum for use. Increasing unlicensed spectrum serves two objectives. First, it encourages the incorporation of emerging spectrum sharing technologies in the near term. Second, it provides an experimental arena for these emerging interference mitigating technologies, such as cognitive radio devices for opportunistic sharing, and underlay sharing. Increasing unlicensed spectrum continues the trends started by the Spectrum Policy Task

Force.

We recommend that the FCC accelerate the process of reaching the two

objectives by enacting regulatory change that can feasibly overcome regulatory constraints, technological uncertainty, and political opposition. Increasing unlicensed spectrum will allow a wider range for use. This extended range will promote greater technological development and innovation and increase the market for wireless devices. Wireless Internet service providers (WISPs) are an example of the possibilities created by increased unlicensed spectrum. WISPs use innovative wireless technologies in unlicensed bands to bring broadband services. Wi-Fi is the most prominent service among WISPs.27 Thus far, the FCC has been relatively successful in opening up parts of the spectrum for unlicensed use because it has focused on less politically contentious bands. It is recommended that the FCC stay clear of the broadcast bands during Phase I. The second objective served by increasing unlicensed spectrum is that unlicensed spectrum can be used as the experimental arena for spectrum sharing technologies. Increasing unlicensed spectrum is the most feasible initial step in spectrum policy reform because it allows for the use and experimentation of spectrum sharing technologies in order to better prove and establish their capabilities. Greater experimentation will have the effects of reducing technological uncertainty and creating room for growth of the market. By increasing the unlicensed part of the spectrum, the FCC will continue to foster an environment conducive to technological innovation. With fewer constraints,

Wi-Max is another kind of networking technology designed to offer tremendous bandwidth capacity of 70 Mbps over an enormous area as large as 30 miles. However unlike Wi-Fi, which creates a network that connects with individual wireless devices, Wi-Max is only able to connect to fixed, stationary sites such as buildings or homes. WISPs, through Wi-Fi, the aforementioned mesh networking, Wi-Max or other wireless broadband innovations will especially be beneficial to underserved areas of the nation without being impeded by regulations.

private sector innovation in technologies utilizing unlicensed spectrum can more readily demonstrate the capabilities of spectrum sharing technologies. Since there are no interference protection guarantees for technologies operating in unlicensed spectrum, market viability for these private sector innovators is dependent on their ability to utilize spectrum sharing technologies. The growing market of unlicensed spectrum applications should provide a “real life” testing environment for spectrum sharing innovations. The proliferation of consumer wireless devices has the potential to be the primary driver for spectrum management reform. Growing consumer demand for wireless devices and services will help the FCC in its current efforts to open more spectrum. Consumers and the industries that provide the wireless devices will compel incumbent licensees to be more accommodating to spectrum management reform. An increase in dedicated unlicensed spectrum will help mitigate two impediments to reform. As the market for unlicensed devices increases existing and new firms who provide unlicensed devices will become a strong political constituency. As a “real-life” experimental arena, dedicated unlicensed will help to reduce technological uncertainty surrounding the ability of spectrum sharing technologies to manage interference concerns. Therefore, the first aspect of Phase I will help set the stage for unlicensed devices to operate in licensed bands.

Developing an Interference Metric The second aspect of Phase I is continuing the FCC’s development of robust interference metrics. Support and adequate research of the noise floor in different bands must be undertaken in order for the interference temperature metric to be realistically

proposed as a tool for spectrum management. We are not explicitly endorsing the interference temperature metric, but some interference metric must be developed in order to have quantitative standards. These standards will be used to objectively evaluate interference complaints. We are not recommending a specific metric for interference because there will substantial debate on how to develop a specific metric and setting interference standards. First and foremost, the FCC must de-link the development of an interference metric with the use of spectrum sharing technologies in licensed bands. It was a mistake to link spectrum management to the development of the interference temperature metric. The opposition to the Notice has the potential to kill the development of the metric entirely.

By de-linking the two, the development of the metric will be given a greater

chance of being realized. An interference metric must be developed in order to have quantitative standards. These standards will be used to objectively evaluate interference complaints. A robust interference metric can be used to overcome all three impediments to utilizing spectrum sharing technologies.

The primary argument posed by incumbents

against the use of these technologies in licensed frequency bands is that they will cause interference. The development of an interference metric will allow the FCC to more effectively dispel the arguments of incumbents. The use of a quantitative metric will reduce the uncertainty surrounding interference creation.

If spectrum sharing

technologies demonstrate that they do not cause interference, incumbents will not have any regulatory recourse to challenge the introduction of unlicensed devices in their bands.

This will enable the FCC to change the current regulatory prohibitions against the use of these devices. Although spectrum sharing technology can be used and tested in the unlicensed bands, setting a uniform standard of acceptable interference is crucial for the transition to sharing of the licensed bands. The development of an interference temperature metric will be the trigger mechanism that sets the stage for Phase II. To this end, efforts towards the establishment of the interference temperature metric will have to advance substantially in order to shorten the timeline between Phase I and Phase II.

Phase II: Implementing Spectrum Sharing through â&#x20AC;&#x153;Smartâ&#x20AC;? Technologies in Licensed Bands Phase I heavily involved strategic targeting of the major impediments to spectrum policy reform. Once metrics are adopted and technologies evaluated, the FCC can begin implementing spectrum sharing techniques in the licensed bands.

Phase II can only

begin once technological uncertainty and political opposition are overcome.

Political

opposition will be overcome by a political constituency that can effectively challenge the power of current incumbents. Regulatory constraints will be targeted during Phase II. Phase II advocates the gradual introduction of underlay and opportunistic sharing in licensed bands. The use of these interference mitigating mechanisms will depend on the characteristics of the licensed band.

Because underlay technologies are more

developed, the FCC should first allow for the increased use of underlays in more licensed bands.

Both underlay and opportunistic sharing can use the interference temperature metric in its protocols for operating in the licensed bands. Underlay sharing will allow for unlicensed transmitters with low power restrictions to operate in the same frequency bands as high-powered licensed devices without causing harmful interference. A fully realized interference metric will allow for the potential for underlay sharing to become maximized. Interference metrics will justify increases to the power and range of underlay sharing technologies. Opportunistic sharing will allow for cognitive radio technologies to operate using defined guidelines enabled by its software in order to opportunistically sense and seek out unused spectrum within a licensed environment. Exploitation of white-space and guard bands through opportunistic sharing can effectively eliminate the notion of spectrum scarcity. Phase II will directly go against the â&#x20AC;&#x153;Not In My Back Yardâ&#x20AC;? mentality of licensees. Political opposition can be expected to continue, and possibly escalate as Phase II is being implemented. In order to keep the opposition at least amenable to the idea, the FCC must make certain that the interference metric protocols are maintained in order to ensure the integrity of the licenseeâ&#x20AC;&#x2122;s signal.

Public and political support,

experimental justification, and qualifying standards developed in Phase I, should help subdue Phase II opposition. Phase II may not be ready for implementation for at least another ten years. The pace of achieving the goals of Phase I will determine the readiness of the FCC to implement Phase II. The conditional nature of Phase II requires overwhelming support for the objectives laid out in Phase I.

Limitations to our Recommendations Increasing Unlicensed Spectrum Our recommendation to increase unlicensed spectrum does not identify specific frequency bands. Different bands have different technical characteristics, and our limited technical knowledge of these bands does not allow us to recommend specific frequency bands over others.

Due to our limited technical knowledge it is impossible for us to

predict which frequency bands would foster the greatest amount of technological innovation. However, once additional spectrum is allocated those who engineer and manufacture unlicensed devices can develop them based on the propagation characteristics of the band.

Although the opportunities for increasing unlicensed

spectrum in higher bands may be more immediately promising, we chose to highlight much of our discussion on the lower bands which comprise the most valuable part of the spectrum.

Secondary Markets By implementing underlay and opportunistic sharing in Phase II, the FCC should not rule out the use of secondary markets to expand access to licensed bands. Secondary markets are currently allowed through leasing agreements in limited cases. It is difficult for us to predict how secondary markets would aid in the proliferation of spectrum sharing devices. The mere ability of a licensed user to enter into a voluntary leasing agreement does not mean that they will do so. For this reason we cannot make the assumption that FCC changes to secondary market restrictions would foster use of

spectrum sharing technologies. In secondary markets, it is the licensee who profits and controls the access once the FCC has given them authorization so, one could expect them to want to engage in agreements. For example, cellular service providers are allowed to lease their additional spectrum space, however we have yet to see cellular providers do so. We could argue that they do not because of interference concerns however, we cannot know for sure. Generally, it is recommended that the FCC continue authorization of secondary markets on a case-by-case.

The Interference Temperature Metric Finally, our recommendations do not specify a specific method for measuring interference. The interference temperature metric provides promise, but taken alone, it does not sufficiently address interference concerns for the entire spectrum.

Other

methods of measuring interference are likely to complement the interference temperature metric and should be explored. However, reaching agreement on specific interference metrics to be used as standards will undoubtedly involve controversial debate. The creation of an agreed upon interference metric will have its own political and technical uncertainty impediments.

Bibliography Comments of American Hospital Association, ET Docket No. 02-380, May 16, 2003 Comments of the Association for Maximum Service Television, Inc. and the National Association of Broadcasters, ET Docket No. 02-135, July 8, 2002 Comments of the Association for Maximum Service Television, Inc. and the National Association of Broadcasters, ET Docket No. 02-135, January 27, 2003 Comments of the Association for Maximum Service Television, Inc. and the National Association of Broadcasters, ET Docket No. 02-135, February 28, 2003 Comments of AT&T Corporation, ET Docket No. 02-380, April 17, 2003 Comments of AT&T Wireless, ET Docket No. 02-135, July 12, 2002 Comments of AT&T Wireless, ET Docket No. 02-135, January 27, 2003 Comments of AT&T Wireless, ET Docket No. 02-380, May 16, 2003 Comments of Atlantic Telecommunications, ET Docket No. 02-380, April 17, 2003 Comments of Motorola, ET Docket No. 02-380, April 17, 2003 Comments of Cingular Wireless, ET Docket No. 02-135, January 27, 2003 Comments of Cingular Wireless, ET Docket No. 02-380, April 17, 2003 Comments of the City and County of San Francisco, ET Docket No. 02-380, June 16, 2003 Comments of the Consumer Electronics Association, ET Docket No. 02-380, April 17, 2003 Comments of Cox Broadcasting, Inc., ET Docket No. 02-380, April 17, 2003 Comments of Ericsson, ET Docket No. 02-380, April 17, 2003 Comments of the Fixed Wireless Communications Coalition, ET Docket No. 02135

Comments of the Information Technology Industry Council, ET Docket No. 02380, April 17, 2003 Comments of Intel Corporation, ET Docket No. 02-380, August 22, 2003 Comments of Los Angeles County, ET Docket No. 02-380, April 15, 2003 Comments of Microsoft, ET Docket No. 02-380, May 16, 2003 Comments of the National Association of Broadcasters, Association of Public Television Stations, Association for Maximum Service Television, Inc. (joint reply), ET Docket No. 02-380, April 17, 2003 Comments of National Public Radio, Inc., ET Docket No. 02-135, July 8, 2002 Comments of the National Telecommunications and Information Administration, ET Docket No. 02-380, May 7, 2003 Comments of the New America Foundation, et al., ET Docket No. 02-380, April 17, 2003 Comments of PCIA, the Wireless Infrastructure Association, ET Docket No. 02135 Comments of the Public Safety Wireless Network Program, ET Docket No. 02125, February 10, 2003 Comments of Qualcomm, ET Docket No. 02-380, May 16, 2003 Comments of Stateside Wireless Network, ET Docket No. 02-135, February 27, 2003 Comments of the Telecommunications Industry Association, ET Docket No. 02135, November 25, 2002 Comments of United Telecom Council, ET Docket No. 02-380, May 16, 2003 Comments of Verizon Wireless, ET Docket No. 02-135, February 28, 2003 Comments of Weblink Wireless, Inc., ET Docket No. 02-135, January 27, 2003 Comments of the Wi-Fi Alliance, ET Docket No. 02-135 Comments of the Wireless Communication Association International, Inc., ET Docket No. 02-135, January 27, 2003

Comments of the Wireless Ethernet Compatibility Alliance, ET Docket No. 02135 Communications Act 1934, 47 U.S.C. § 157 Federal Communications Commission, Spectrum Policy Task Force Report, ET Docket No. 02-135, November 11, 2002 Federal Communications Commission, Spectrum Policy Task Force, “Report of the Unlicensed Devices and Experimental Licenses Working Group”, November 15, 2002 Federal Communications Commission, Spectrum Policy Task Force, “Report of the Spectrum Rights and Responsibilities Working Group”, November 15, 2002 Federal Communications Commission, Spectrum Policy Task Force, “Report of the Interference Protection Working Group”, November 15, 2002 Federal Communications Commission, Spectrum Policy Task Force, “Report of the Spectrum Efficiency Working Group”, November 15, 2002 Federal Communications Commission, Notice of Inquiry: In the Matter of Additional Spectrum for Unlicensed Devices Below 900 MHz and in the 3 GHz Band, ET Docket No. 02-380, December 20, 2002 Federal Communications Commission, Notice of Inquiry and Notice of Proposed Rulemaking: In the matter of Establishment of an Interference Temperature Metric to Quantify and Manage Interference and to Expand Available Unlicensed Operation in Certain Fixed, Mobile and Satellite Frequency Bands, ET Docket No. 03-237; November 28, 2003 Federal Communications Commission, Notice of Proposed Rule Making and Order: In the Matter of Facilitating Opportunities for Flexible, Efficient, and Reliable Spectrum Use Employing Cognitive Radio Technologies, ET Docket No. 03-108, December 30, 2003 Interview with Daniel Sepulveda, Legislative Assistant to Senator Barbara Boxer, Staff Coordinator, Democratic Technology and Innovation Working Group, February 20, 2004 Interview with James H. Snyder, The New America Foundation, February 19, 2004 Interview with Jim Davis, Director, UCLA Wireless, January 26, 2004

Interview with Professor Jeffrey Cole, Director of the Communications Policy Center at UCLA and professor at the Anderson School of Management, January 26, 2004 and February 19, 2004 Interview with Lauren Van Wazer, Special Counsel to the Office Chief, in the Office of Engineering and Technology, February 20, 2004 Interview with Dr. Rajit Gadh, WINMEC and Professor at UCLA Engineering Department, January 22, 2004 Interview with Robert M. Pepper, Chief Policy Development, Federal Communications Commission, February 19, 2004 Rothkopf, Michael H. & Bazelon, Coleman, “Interlicense Competition: Spectrum Deregulation Without Confiscation or Givaways,” New America Foundation, August 2003 Snider, J.H, “Citizen’s Guide to the Airwaves,” New America Foundation, 2003 Snider, J.H, “An Explanation of the Citizen’s Guide to the Airwaves,” New America Foundation, 2003 Title 47 of the Code of Federal Regulations, part 15 US General Accounting Office 03-277, “Telecommunications, Comprehensive Review of Spectrum Management with Broad Stakeholder Involvement is Needed,” GAO-03-277, January 2003. Werbach, Kevin, “Radio Revolution: The Coming Age of Unlicensed Wireless,” New America Foundation, December 15, 2003

Appendix A FCC Background Regulatory Environment Formal FCC Decision-Making Process The FCC is mandated by Congress to adopt new rules or to amend existing rules in order to implement Communications legislation. The official process by which the FCC adopts rules takes several steps. Each of these steps allows for comments and replies to the comments to be made by consumers, service providers, and manufacturers for 75 days after publication. Each of the comments and reply comments provided to the FCC become formal public records associated with the proceedings. The official decision making process includes: •

Notice of Inquiry (NOI): Used by the Commission generate ideas and information on a particular issue of concern. NOIs are generally initiated after an internal FCC study, or through an outside request.

•

Notice of Proposed Rule Making (NPRM): NPRM lists and describe proposed FCC rules or rule changes. An NPRM can be initiated in one of two ways, 1) as a response to a previous NOI after comments have been reviewed, or 2) as the first step in a rule making procedure.

•

Further Notice of Proposed Rule Making (FNPRM): Once comments have been reviewed from the NPRM the FCC may opt to issue a further notice. These respond specifically to issues raised in previous public comments. FNPRM allow for additional public comment only on the issues addressed in the FNPRM.

•

Report & Order (R&O): An R&O is issued by the Commission after comments have been reviewed in a NPRM, a FNPRM or both. The Commission then can

decide to leave the rules alone or change them and/or develop new detailed rules. A summary of an R&O is then published in the Federal Register, and will list the date upon which rules will become effective. Should an interested party disagree with a R&O they may file a Petition for Reconsideration. A petition can be filed up to 30 days after the date an R&O is published in the Federal Register. After a petition has been filed, the FCC will review it and will then issue a Memorandum Opinion and Order (MO&O). This will detail the FCC’s position on if they will or will not change the new rule in question. Other important actions by the FCC in the decision making process include: •

Public Notice (PN): These provide notice to the public of an action taken by the FCC or of an event. Comments may or may not be requested.

•

En Banc: An En Banc meeting follows a Public Notice. In these meetings the FCC will ask specific witnesses to prepare and present information.

•

Ex Parte: Ex Parte rules ensure that those who participate in FCC proceedings are treated fairly and have equal opportunity to give comment and information to support their respective positions. Figure 5: FCC rulemaking process Start here

NOI

OR Start here

NPRM

FNPR

R&O

Publish in Federal Registry

Petition for Reconsideration

MO&O

Rule Changes Rule changes are often initiated in several ways. In general there are three methods to initiate the rule changing process within the FCC. First, private individuals, academics, consumer goods manufacturer, or service provider may petition the FCC for rule making. Second, FCC employees can initiate the process from within their bureau. Finally, the Commission themselves may initiate the rule changing process. The three methods can be characterized as an outside in approach, within the organization up, or from the Commission down. First Method: From Outside the FCC A company or individual may have an idea for a product or service that is not currently allowed by FCC regulations. The company may then file a petition for rule making. The petition will be put out for public comment and will then become either a NOI or an NPRM. The FCC does have experimental authority and will often grant experimental licenses, rights to use specific frequency designated for experimental purposes only, so that testing can be performed on a device. After a group has tested their product they may then petition the FCC as well. At this point the petition must make its way through the appropriate bureau of the FCC. This process can be long and arduous. Under the past regulatory environment of the FCC many petitions would be stalled in bureaucratic red tape. Nextel is an example of a company that diligently worked through the difficult process. Nextel used a series of experimental licenses, and a series of incremental rule changes to gain approval of their products and services. Nextel was created by former FCC employees who had a detailed understanding of how to work

towards changes in FCC regulations. Even with insider knowledge of the process they took approximately ten years to change regulations. Second Method: From within a Bureau Changes in rule making are also initiated from within the bureaus of the FCC. FCC staff may become aware of a new technology. Staff may then champion ideas for rule changes and work internally to create either an NOI or NPRM. In this case the rule change need not go through the same first step of the external petition. Third Method: From the Commission or the Chairman Changes to FCC policies and rules are also driven by the desires and vision of either the Commission or the Chairman himself. In the case of spectrum management, Chairman Michael Powell prompted a reexamination of spectrum management policy.

recognized that spectrum management policies are based on 75 year-old engineering standards and 75 year-old legal language.