The National Broadband Plan (the "Plan") recognizes that no area of the broadband ecosystem holds more promise for transformational innovation than mobile services. In order to accommodate this significant growth and develop mobile broadband services, the Plan recommends:

  • Increasing spectrum availability and modifying spectrum policy;
  • Reducing obstacles that may slow facility deployment or increase investment costs;
  • Increasing access to mobile broadband for all Americans; and
  • Improving mobile communications for public safety.

There are a number of other critical issues in the Plan for wireless stakeholders, including how wireless broadband service is technically defined and disclosed to consumers and whether universal service reforms will level the playing field for wireless eligible telecommunications carriers (ETCs). (For more on these subjects, see our separate advisories, “Focus on Consumer Disclosure Requirements” and “Focus on Adoption.”)

Background

The progression to 4G mobile technologies will require additional spectrum allocation and the review of outdated spectrum management policies. Given current trends, virtually all of the major players in the wireless industry have stated that there is a need for more spectrum to be allocated for wireless broadband services. Estimates range from 40 to 150 MHz per operator; CTIA has estimated there to be an industrywide need of approximately 800 MHz of additional spectrum.

The need for additional spectrum will also require reconsideration of outdated spectrum management policies to allow for more innovative uses of existing spectrum. However, access to more spectrum is not sufficient. In order to encourage the deployment of broadband infrastructure, consideration must also be given to methods for reducing obstacles that may slow facility deployment and improving utilization of existing utility infrastructure and including access to utility poles and public rights-of-way.

Wireless broadband services offer potential for important public benefits in the areas of public access and safety. The Plan proposes that the Federal Communications Commission (FCC) should consider subsidizing certain aspects of mobile broadband to increase access. The Plan also recommends that the current public safety and 911 programs can be improved upon by ensuring consistent interoperable broadband network access to all first responders and the development of a next generation nationwide emergency notification system.

Analysis

Increasing Spectrum Availability and Modifying Spectrum Policy

The Plan sets a goal of re-purposing 500 MHz of spectrum for broadband use by the year 2010. The Plan also recommends modifications to the nation’s current spectrum management policies to promote more efficient and flexible use of spectrum on a going-forward basis.

The Plan specifically identifies 300 MHz of spectrum (between 225 MHz and 3.7 GHz) for mobile flexible use by 2015:

a) The 2.3GHz Wireless Communications Service (WCS)—20 MHz of spectrum;

b) The Upper 700 MHz D Block—10 MHz of spectrum for auction;

c) The Advanced Wireless Services (AWS) bands—60 MHz from auctions and possibly an additional 20 MHz from federal allocations;

d) The Mobile Satellite Spectrum (MSS)—up to 90 MHz of spectrum; and

e) The broadcast television (TV) band—120 MHz of spectrum for broadband use through reallocation efforts.

Although some of this spectrum will be allocated using traditional auctions, the Plan also proposes to increase spectrum availability by applying a flexible approach to certain frequency bands, where existing technical rules may currently restrict the use for other services. For example, the Plan proposes providing MSS licensees increased flexibility aimed at encouraging terrestrial build-out of mobile broadband in that spectrum. The Plan also proposes that the FCC use “incentive auctions” (pending congressional approval) to allocate some spectrum. In an incentive auction a current licensees would receive a share of the auction proceeds for voluntarily contributing their spectrum to an auction. The prime candidate for such an incentive auction identified in the Plan is the broadcast television spectrum because it “has excellent propagation characteristics that make it well-suited to the provision of mobile broadband services, in both urban and rural areas.” The Plan proposes that the FCC conclude the pending broadcast “white spaces proceeding” and initiate a rulemaking to ensure efficient use of the TV spectrum by considering service areas and distance separations, revising the Table of Allotments, and establishing a licensing framework that permits two or more stations to share a 6 MHz channel. The rulemaking will also consider rules for auctions of broadcast spectrum that may be reclaimed through “repacking” spectrum and voluntary channel sharing.

Other proposed policy modifications include: (1) creating and launching a new “spectrum dashboard” that allows greater public transparency concerning spectrum allocation and utilization; (2) expanding the FCC’s authority to conduct incentive auctions in which incumbent licensees relinquish rights to spectrum assignments in exchange for a portion of the proceeds; (3) increasing Commercial Spectrum Enhancement Act (CSEA) funding to provide federal agencies adequate incentive and assistance to relocate off federal spectrum, including reimbursement for the use of replacement commercial telecommunications service; (4) granting the FCC and NTIA authority to impose spectrum fees on spectrum that is not licensed for exclusive flexible use; (5) directing the FCC to conduct a review of the effectiveness of its secondary markets policies and rules to promote access to unused and underutilized spectrum; (6) promoting within the International Telecommunication Union (ITU) innovative and flexible approaches to global spectrum allocation that take into consideration convergence of various radio communication services and enable global development of broadband services; and (7) directing the FCC to consider the unique spectrum needs of U.S. Tribal communities when implementing the recommendations for spectrum allocation.

The Plan also calls for FCC rule modifications to promote point- to-point wireless backhaul services and the expansion of opportunities for innovative spectrum access models. The Plan cites the unlicensed band as an excellent example of innovative development of spectrum where Bluetooth and Wi-Fi technologies have blossomed in spectrum that was previously underutilized. The Plan also reaffirms the FCC’s faith in the ability of advanced spectrum management technologies such as cognitive radio to increase efficiency of spectrum utilization by enabling radios to share available spectrum dynamically.

Reducing obstacles to use of poles, conduits and rights of way

The Plan recognizes the significant hurdles associated with the deployment of new broadband facilities, estimating that “collectively, the expense of obtaining permits and leasing pole attachments and rights-of-way can amount to 20 percent of the cost of fiber optic deployment.” In order to reduce those hurdles, the Plan proposes that the government take certain actions to improve utilization of existing utility infrastructure and rights-of-way. The Plan also recommends the federal government foster broadband deployment by facilitating the placement of communications infrastructure on federally managed property and enacting “dig once” legislation.

In order to promote utilization of existing infrastructure, the Plan makes several suggestions to improve the current pole attachment process under Section 224 of the Act. Namely, the Plan recommends that the FCC:

  • Establish rental rates for pole attachments that are low and as close to uniform as possible for all types of industry players (e.g., cable providers, CLECs and ILECs);
  • Implement rules that will lower the cost of the pole attachment “make-ready” process;
  • Establish comprehensive timelines for each step of the Section 224 access process and reform the process for resolving disputes regarding infrastructure access; and
  • Improve the collection and availability of data regarding the existing location and availability of poles, ducts, conduits and rights-of-way.

The Plan also recommends Congress amend Section 224 to establish a “harmonized access policy” for all poles, ducts, conduits and rights-of-way applicable to all types of pole owners and carriers as a simple, minimum national standard.

With regard to promoting the use of government rights-of-way, buildings and facilities, the Plan generally recommends that the federal government improve the process for locating broadband facilities on federal buildings and property. In order to facilitate improving access to federal properties, the Plan recommends making Department of Transportation (DOT) projects (e.g., bridges and roads) contingent on states and localities allowing joint deployment of conduit by qualified parties deploying broadband infrastructure at the same time the DOT project is constructed. The Plan also recommends that Congress consider enacting “dig once” legislation applying to construction in the rights-of-way of all future federally funded projects (e.g., sewers, power transmission facilities, rail, pipelines, bridges, tunnels and roads). Finally, the Plan recommends Congress consider expressly authorizing federal agencies to set the fees for access to federal rights-of-way on a management and cost recovery basis, and that the executive branch develop one or more master contracts to expedite the placement of wireless towers on federal government property and buildings.

(For more information regarding proposed recommendations that would impact pole attachments and facility deployment, see our separate advisory, “Focus on Infrastructure Deployment—Poles, Conduits and Rights of Way.”)

Increasing access to mobile broadband

To close the “adoption gap” the Plan proposes the creation of a Mobility Fund as part of broader universal service fund reform. Without increasing the overall size of the universal service fund, the Plan seeks to provide “one-time support for deployment of infrastructure” intended to enable all states to bring a minimum level of mobile broadband to residents.

Another recommendation proposes that the FCC consider requiring free or very low cost wireless broadband in certain spectrum bands as a condition of service providers’ use of the band. This would act as a complement to the Lifeline Program, and may only provide consumers with limited broadband access.

The Plan also proposes initiating a rulemaking to fund wireless connectivity to portable learning devices that can be used off-campus, which currently is not supported with E-rate funds. The Plan cites to a rapid increase in the demand for wireless services in education, and notes that students without off-campus access to online educational tools will be increasingly left behind. It suggests establishing a pilot program to determine the level of demand as well as cost-effectiveness of expanding the program to support such services.

(For more information regarding the impact of universal services proposals in the Plan on wireless broadband, see our separate advisory, “Focus on Adoption.”)

Improving mobile communications for public safety

The Plan proposes working recommendations to improve public safety communications both for first responders and agencies that issue homeland security and other emergency alerts.

In order to improve mobile communications for first responders, the Plan proposes developing the 700 MHz public safety broadband network to achieve “long overdue interoperability” and ensure access to sufficient capacity for first responders. The Plan proposes to develop this public safety broadband network through public-private partnerships between public safety and 700 MHz commercial providers, including—but not limited to—a commercial licensee of the “D block.”

The Plan also recommends the establishment and funding for an Emergency Response Interoperability Center (ERIC) within the FCC to develop common technical standards for interoperability on the public safety broadband network, and to maintain responsibility for updating these standards periodically as broadband technology evolves. The Plan promotes innovation in the development and deployment of Next Generation 911 (NG911) networks and emergency alert systems. The NG911 networks will replace the current E911 system while retaining some of its core functions such as automatic location information and automatic number identification. The Plan identifies the lack of coordinated funding as a significant roadblock for NG911 deployment. It calls for the preparation of a report by the National Highway Traffic Safety Administration to identify the costs of deploying a nationwide NG911 and recommends Congress enact a federal NG911 regulatory framework that includes a transition from legacy 911 to NG911 networks. This new NG911 network would utilize broadband to support 911 access in multiple formats (e.g., texting, photos, video, TTY and e-mail) for all types of originating service providers, application developers and device manufacturers. Broadband would enable PSAPs to push and pull video, images, medical information, environmental sensor transmissions and a host of other data through shared databases and networks.

Finally, the Plan calls for the FCC to immediately launch a comprehensive next-generation alert system inquiry to consider Emergency Alert System (EAS) and Commercial Mobile Alert Service (CMAS) developments, as well as FEMA’s development of the Integrated Public Alert and Warning System (IPAWS). The recommendation calls for the FCC to determine how best to ensure all Americans can receive timely and accurate alerts, warnings and critical information about emergencies, regardless of the communications technology used. Moreover, the Plan calls for the executive branch to clarify agency roles in the implementation and maintenance of next generation alert and warning systems.

The FCC will be releasing a series of notices to launch each of its future proceedings. Davis Wright Tremaine will be participating in those proceedings on behalf of our clients.