In adopting its Second Memorandum Opinion and Order during yesterday's open meeting, the FCC is pressing forward with its plan to allow unlicensed fixed and mobile wireless devices to operate in unused parts of TV spectrum (the TV “white spaces”). According to FCC Chairman Genachowski, this is the first significant block of spectrum made available for unlicensed use in more than 20 years.

Yesterday’s unanimous decision modified certain provisions of the FCC’s November 2008 White Spaces Order (a copy of which is available here; and discussed in detail in an earlier DWT Advisory) in response to seventeen petitions for reconsideration. While the Second Memorandum Opinion & Order upholds the majority of the FCC’s findings in the 2008 White Spaces Order, the Commission did make some widely anticipated changes to the original rules.

Eliminated the Device Sensing Requirement - First, the Commission revised a portion of a two-part requirement that the new white space devices use sensing technology that can detect when spectrum is actually being used, and consult with an incumbent spectrum user database when a device seeks to locate available white space for transmitting its signal. The Commission eliminated this “belt and suspenders” approach and determined that the device sensing requirement will no longer be mandatory – just encouraged. The FCC also indicated that it has not yet selected the private companies that will administer the geolocation database of incumbent spectrum users. Further, the FCC’s Office of Engineering & Technology still has to finalize technical standards relating to the database.

Additional Interference Protection - The Commission also revised its original rules to provide additional interference protection to existing white spaces spectrum users, which are predominantly TV broadcasters and wireless microphone users. Specifically, the revised rules now will reserve two vacant UHF channels on a nationwide basis for wireless microphone use. In addition, the revised rules will allow large users of wireless microphones (users of more than 12 microphones), such as Broadway shows and sports stadiums, to register for protection in the incumbent spectrum user database, but the registration must have been done in advance of the event and the public will be given the opportunity to review and comment on the request. Further, the revised rules will maintain a separation distance between TV white space devices and wireless microphones permitted to be registered in the database.

Cable Headend/TV Translator Protection Issue - The original rules provided that cable headend and TV translator receive sites located beyond 80 km from the edge of a television station's protected contour cannot register for protection in the incumbent spectrum user database. In yesterday’s Order, the Commission recognized that cable headend, TV translator and other MVPD receive sites beyond that 80 km distance may also need protection. Under the revised rules, operators of such sites can petition for inclusion within 90 days of the effective date of yesterday’s order. It is possible that if such requests are not opposed that they would summarily be granted. If an operator misses that window, it would be much more difficult to obtain protection for preexisting sites, so operators should consider now whether they have such sites and if they wish to request protection.

Chairman Genachowski seemed to indicate that the FCC would press forward with its implementation of the White Spaces plan regardless of the pending legal challenges filed against the 2008 White Spaces Order by the broadcast industry.