Utilities, critical infrastructure entities and other groups that rely on private wireless communication should be aware that, with the recent approval by the U.S. House of Representatives of the Radio Spectrum Inventory Act, legislation potentially reallocating channels or making them available for shared use has taken a step closer to becoming law.

On April 14, 2010, the U.S. House of Representatives approved the Radio Spectrum Inventory Act that would require the Federal Communications Commission (FCC) and the National Telecommunications and Information Administration (NTIA) to create a detailed inventory of spectrum between 225 MHz and at least 3.7 GHz and recommend to Congress whether channels should be reallocated or made available for shared use.

A companion bill (S. 649) is currently pending in the Senate and press reports indicate that amendments are being considered to make it similar to the House bill. The House and Senate would need to work out any differences in their legislation before sending it to the president to be signed into law.

Impact

Congress is now closer than ever to implementing a new national spectrum policy based on identifying underutilized spectrum and reallocating such spectrum for wireless broadband services. Such action could come at the expense of utilities and other critical infrastructure entities that rely on private wireless communications to support their essential operations.

The Radio Spectrum Inventory Act does include an expanded exemption from disclosure and more robust provisions designed to ensure that a spectrum inventory does not compromise national security, homeland security or public safety. These strengthened provisions will help utilities protect sensitive information regarding their wireless communications systems from disclosure, but the burden will be on utilities to demonstrate that public disclosure would be detrimental to public safety or is otherwise prohibited by law.

Discussion

As passed by the House, the Radio Spectrum Inventory Act requires the FCC and NTIA to create an inventory of spectrum that includes detailed information on the following:

  • How each band is allocated
  • The identities of all authorized users in each band
  • The number of transmitters, receivers or other devices authorized to operate in each band
  • An approximation of the extent to which each user is using the frequencies, by geography, such as the amount and percentage of time of use, number of end users or other measures
  • To the greatest extent possible, contour maps or other information that illustrate the coverage area, receiver performance and other parameters relevant to an assessment of the availability of the spectrum in each band

Although the inventory would focus on spectrum between 225 MHz and 3.7 GHz, the House bill also requires the FCC and NTIA to expand the scope of the spectrum included in the inventory up to 10 GHz unless they determine that the "burden of expanding the inventory outweighs the benefit." The original version of the bill required the FCC and NTIA to automatically inventory spectrum up to 10 GHz.

The House bill also includes national security provisions that would allow a federal agency, in consultation with NTIA, to keep information held by that agency or by a licensee of non-federal spectrum confidential if the agency determines that public disclosure would reveal classified national security information or other information for which there is a legal basis for nondisclosure and such disclosure would be detrimental to national security, homeland security or public safety.

Private licensees may also separately petition the FCC for a partial or total exemption from inclusion on the spectrum inventory if the licensee believes that public disclosure would be detrimental to public safety or that the licensee is otherwise prohibited by law from disclosing the information. The burden would be on the private licensee to justify the exemption and to provide clear and convincing evidence to support such an exemption. Prior to releasing the spectrum inventory, making any updates to the spectrum inventory or submitting any reports to Congress, NTIA and the FCC would be required to consult with the National Security Council for up to 30 days to determine what additional information, if any, should be kept confidential.

The FCC and NTIA would be required to complete the spectrum inventory and create a centralized, publicly accessible website within one year of the date of enactment of the Radio Spectrum Inventory Act. The FCC and NTIA would be required to update the spectrum inventory on a quarterly basis, including when there is a transfer or auction of a license or a change in a permanent assignment of license. The report containing the FCC's and NTIA's recommendation on which spectrum, if any, should be reallocated or made available for shared use would be due within four years of enactment and every four years thereafter. The FCC and NTIA would also be required to submit a separate report to Congress within two years after the date of enactment and biennially thereafter describing the results of the spectrum inventory and recommending any information that should be added to the inventory.