BEFORE THE FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Amendment of the Commission's ) Rules with Regard to Commercial ) GN Docket No. 12-354 Operations in the 3550 3650 MHz ) Band ) COMMENTS OF THE EDISON ELECTRIC INSTITUTE The Edison Electric Institute ("EEI"), 1 on behalf of its member electric utilities, hereby submits the following reply comments in the above-referenced proceeding in response to the Federal Communications Commission s ("FCC" or "Commission") Notice of Proposed Rulemaking and Order in the above-referenced proceeding. 2 It the NPRM the FCC proposed the creation of a new Citizens Broadband Service ("CBS") in the 3550-3650 MHz band, which is used by high-powered military tactical radars and non-federal fixed satellite service ("FSS") earth stations, to promote small cell use and spectrum sharing. Specifically, the FCC proposed to make the 3550-3650 MHz band available via a three-tiered regime: The first CBS tier, Incumbent Access, would be reserved for authorized federal and grandfathered licensed FSS users. The second CBS tier, Priority Access, would be for small cell use for certain critical, quality-of-service dependent users at specific, targeted locations, including hospitals, utilities, 1 EEI is an association of United States investor-owned electric utilities and industry associates worldwide. Its U.S. members serve almost 95 percent of all customers served by the shareholder-owned segment of the U.S. industry, about 70 percent of all electricity customers, and generate about 70 percent of the electricity delivered in the U.S. 2 Amendment of the Commission's Rules with Regard to Commercial Operations in the 3550-3640 MHz Band, Notice of Proposed Rulemaking and Order, GN Docket No. 12-354 (Dec. 12, 2012) ("NPRM"). 1
and state and local governments. 3 Under the proposal, Priority Access users, such as electric utilities, with critical quality-of-service needs, would operate with a measure of interference protection in portions of the 3.5 GHz Band at specific locations. They would be required to provider interference protection to and accept interference from Incumbent Access tier users. 4 The third CBS tier, General Authorized Access (""GAA""), would be assigned for use by the general public on an opportunistic, non-interfering basis within designated geographic areas. In its initial comments, EEI joined the Utilities Telecom Council and the National Rural Electric Cooperative Association (collectively the "Associations") in filing in support of the Commission's proposal. 5 As drafted, the NPRM correctly recognized that utilities should be included as users in the Priority Access tier because they rely on mission critical communications to support the safe, reliable, and efficient delivery of electric service. The Associations also agreed with the Commission that the availability of the Priority Access tier would bring benefits of mass market commercial scale to specialized uses and provide a new alternative to dedicated spectrum, which is in short supply. 6 We pointed out that access to the second tier as proposed by the Commission would help to provide access to broadband spectrum that is needed for smart grid and other applications, including emergency communications. The record developed in the FCC's recent Hurricane Sandy Field Hearings 7 and the Commission's even more recent discussion in the 9-1-1 Reliability NPRM 8 make clear that further steps need to be taken to facilitate more reliable communications by Critical Infrastructure Industry ("CII") entities such 3 Id. at 9. 4 Id. at 55. 5 Associations Comments at ii. 6 NPRM at 9. 7 See In the Matter of Improving 9-1-1 Reliability, Notice of Proposed Rulemaking, 4, PS Docket No. 13-75, PS Docket No. 11-60 (rel. march 20, 2013) ("9-1-1 Reliability NPRM"). 8 Id. 2
as electric utilities. The Priority Access tier limited to users such as utilities, and not open to more general commercial users, does just that. Unfortunately, some commenting parties, arguing that the spectrum was better used by commercial services, have sought modifications of the FCC's proposal so that commercial carriers, and not governments, hospitals and utilities, would either have access to or a preference in the spectrum. For example, it has been urged that the FCC to scrap the three tiered approach and instead adopt a two tiered approach under which commercial carriers would have assigned spectrum. 9 Others have argued that to the extent that the FCC did adopt a three tiered approach, commercial carriers should also have priority access to the second tier. 10 The effect of this proposal would probably be to effectively exclude governments, hospitals and utilities from the band. Still others have argued that 50 MHz of the spectrum should be set aside for licensed use by commercial carriers. 11 Last, but not least, it has been argued for an open-eligibility approach under which the spectrum would be made available on a first-come, first-served basis. 12 All of these proposals should be rejected in light of the more pressing communications needs of CII entities such as utilities. EEI's members make extensive use of communications as providers of critical utility services, both as owners and operators of private communications systems, and as end-users of commercial communications networks. They are among this nation's largest users of communications networks and services and, as recognized in the National Broadband Plan, have a growing need for spectrum in order to carry out their core mission of safely and reliably 9 CTIA Comments at 2. 10 PCIA Comments at 5. 11 T-Mobile USA Comments at 3. 12 Google Comments at 4. 3
delivering electric service to most, if not all, of the nation s residential and business consumers. In fact, in the National Broadband Plan the FCC made a number of recommendations regarding the smart grid, including that the FCC should start a proceeding to explore the reliability and resiliency of commercial broadband communications networks, and that the FCC and NTIA should work to identify spectrum for utilities. 13 For utilities the importance of communications, particularly wireless spectrum, has increased as they have begun to deploy smart grid technology in the grid, e.g. supervisory control and data acquisition systems and on customer premises, e.g. smart meters. As the need for spectrum has grown, however, its availability has decreased on account of cellular, GPS, etc. Over the last several years, the electric utility industry has urged the FCC to allocate more spectrum to utilities, take steps to improve the reliability and resiliency of commercial networks, and prevent harmful interference to smart meters and power line communications. For its part EEI, electric utilities and other industry associations have raise these issues in over a score of proceedings. 14 Unfortunately, to date the Commission has not acted. The Commission's 13 See National Broadband Plan, Recommendations 12.1 and 12.5. 14 During the past two years, EEI has filed or testified in a number of FCC Proceedings including: (1) Initial and Reply Comments, FCC Public Safety Broadband Network/700 MHz Spectrum Proceeding, WT Docket No. 06-150; PS Docket No. 06-229; WT Docket No. 07-100) [EEI argued that utilities should have access to the 700 MHz spectrum on a primary or secondary basis. This proceeding was superseded by the passage of the Spectrum Act.] (2) Initial and Reply Comments, FCC Network Reliability NOI, PS Docket No. 11-60; PS Docket No. 10-92; EB Docket No. 06-119 [EEI the reliability of commercial networks in emergencies based on overall reliability, inadequate backup power, priority of service, and lack of coverage.] (3) Ex Parte Letter, FCC VoIP Outage Reporting Rules, PS Docket No. 11-82 [EEI urged the FCC to extend its outage reporting requirements to cover failures in CII communications.] (4) Comments, 700 MHz Interoperability NPRM WT Docket No. 12-69 [EEI argued that the FCC should mandate device interoperability in the 700 MHz band to promote efficiency]. (5) Reply Comments, Universal Service Fund NPRM, WC Docket No. 06-122; WC Docket No. 09-51 [EEI argued that FCC should not impose $1/month USF fee on smart meters.] (6) Initial and Reply Comments, 4.9 GHz NPRM, WC Docket No. 07-100; WC Docket No. 06-229; WC Docket No. 06-150)[EEI argued that the 4.9 GHz band should be made available to utilities on a primary basis.] (7) Reply Comments, Progeny, WT Docket No. 11-49 [EEI opposed Progeny spectrum petition because of potential for harmful interference to smart meters.] (8) Comments, 3.5 MHz Band NPRM, GN Docket No. 12-354) [EEI joined UTC in arguing for utility access to this band in a new Premier Access tier.] (9) Reply Comments, WC- 07 NPRM, ET Docket No. 12-338 [EEI joined with UTC in opposing allowing amateur radio in this band because of the potential for harmful interference to PLC communications.] (10) Hurricane Sandy/9-1-1 Proceeding, PS Docket No. 13-75 and PS Docket No. 11-60) [Edward Comer, EEI's General 4
Priority Access tier proposal with access to it limited to CII users such as utilities is at least a start. As the Associations noted in our comments, such an allocation would meet important critical communications needs and be viable because the class of critical facilities would be large enough to create economies of scale sufficient to make the Priority Access tier viable. 15 There is no need and it might likely prove to be counterproductive to open the tier to commercial use. Under the Commission's proposal, Commercial users will still have access to the GAA tier and already have more spectrum available to them than do utilities. Conclusion For the reasons indicated above the Edison Electric Institute urges the Commission to adopt the Priority Access tier proposal as put forward in the NPRM without modification. Respectfully submitted, EDISON ELECTRIC INSTITUTE /s/ David K. Owens David K. Owens Executive Vice President H. Russell Frisby, Jr. Jonathan P. Trotta Counsel STINSON MORRISON HECKER LLP 1775 Pennsylvania Ave, NW, Suite 800 Washington D.C. 20006 (202) 785-9100 (202) 785-9163 (Fax) rfrisby@stinson.com jtrotta@stinson.com Aryeh B. Fishman Director, Regulatory Legal Affairs Office of the General Counsel Edison Electric Institute 701 Pennsylvania Avenue, NW Washington, DC 20004-2696 (202) 508-5000 afishman@eei.org Counsel testified before the FCC on utilities' need for reliable and resilient communications and what steps could be taken.] 15 Associations Comments at 12-14. 5
Dated: April 5, 2013 6