Via Electronic Filing Association of Public-Safety Communications Officials (APCO) CTIA The Wireless Association (CTIA) National Emergency Number Association (NENA) National Public Safety Telecommunications Council (NPSTC) Marlene H. Dortch Secretary Federal Communications Commission 445 12th Street, S.W., Room TW-A325 Washington, D.C. 20554 April 7, 2009 Re: Ex Parte Communication, Revision to Rules Authorizing the Operation of Low Power Auxiliary Stations in the 698-806 MHz Band, et al., WT Docket Nos. 08-166 & 08-167 Dear Ms. Dortch: The undersigned associations, on behalf of public safety and commercial wireless 700 MHz band licensees, hereby reiterate their call for the Commission to act without delay to: (1) clear wireless microphones and other low power auxiliary station ( LPAS ) devices from the 700 MHz band; and (2) prohibit the manufacture and sale of 700 MHz wireless microphones and other LPAS devices for domestic use. Absent prompt Commission action, interference and communications disruption in the 700 MHz band are inevitable to first responders, to broadband customers, and to users of wireless microphones. Consistent with the FCC s tentative conclusions in the 700 MHz Wireless Microphone Notice, 1 the outcome of this proceeding is equally clear wireless microphone and other LPAS devices must cease operations in the 700 MHz band, and further manufacture and sale of such devices for domestic use must be prohibited. Continued delay of a resolution in this matter, moreover, impedes the achievement of Congress objective to clear the 700 MHz band and make the spectrum available for new public safety and commercial systems. We are unaware of any public policy justification for further delay. Immediate Action is Needed to Effectuate the DTV Transition. An important objective of the DTV transition is the recovery of spectrum for new public safety and commercial wireless communications. Indeed, the FCC has concluded that [i]t is incumbent on the Commission to take all the steps necessary to make this spectrum 1 See Revisions to Rules Authorizing the Operation of Low Power Auxiliary Stations in the 698-806 MHz Band, et al., WT Docket Nos. 08-166 & 08-167, Notice of Proposed Rulemaking and Order, 23 FCC Rcd 13106, 13114 17 (rel. Aug 21, 2008) ( 700 MHz Wireless Microphone Notice ). 1
effectively available to both public safety as well as commercial licensees at the end of the DTV transition. 2 The continued presence of wireless microphones and similar devices in the 700 MHz band undermines this objective. As the FCC is aware, some public safety narrowband radio systems already operate in 700 MHz, and many others are expected to begin operation following the June 12, 2009 DTV transition. The record in this proceeding unequivocally demonstrates that operation of wireless microphones and other LPAS devices in the 700 MHz band will disrupt the communications of public safety and commercial systems. 3 As a result, continued delay in clearing the band in effect risks a further extension of the DTV transition date by denying new public safety and commercial licensees clear access to the spectrum. Interference, moreover, will affect not only new entrants in the band but LPAS devices as well, resulting in disruption to wireless microphone usage. A Plan to Clear the 700 MHz Band. The signatories to this letter, representing public safety and commercial wireless interests in the 700 MHz band, urge the Commission to act promptly to set a path that will clear the band in a timely way. In particular, the Commission should: require all wireless microphones and other LPAS devices to cease operations in the 700 MHz band no later than February 18, 2010; establish a 60-day notification process for any public safety or commercial operations occurring prior to February 18, 2010, and require that all 700 MHz wireless microphone and other LPAS device operations in that particular market cease within the 60-day period; and issue a Consumer Advisory to alert wireless microphone users of the need to vacate the 700 MHz band and to notify equipment manufacturers, distributors, and others about the prohibition on further manufacturing, sales, and marketing of such devices for use in the United States. It is important that the Commission establish a clear deadline by which all wireless microphones and other LPAS devices must cease operations in the 700 MHz band. The Commission proposed that such operations end coincident with the clearance of TV stations from the band. 4 That process already has been completed for a significant 2 Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, et al., WT Docket No. 06-150, et al., Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 8064, 8066 2 (2007) (emphasis added); see also 700 MHz Wireless Microphone Notice 23 FCC Rcd at 13107 1. 3 See, e.g., Comments of V-COMM at 1, 5-10 (filed Oct. 1, 2008) (providing technical analysis and examples of actual interference); Comments of the Society of Broadcast Engineers, Inc. at 2-3 (filed Sept. 26, 2008) (describing LPAS devices as unpredictable, mobile and itinerant, and very difficult to coordinate with); Comments of the Association of Public-Safety Communications Officers at 2 (filed Oct. 3, 2008) (describing a very real danger of interference from the low auxiliary devices to public safety land mobile radio systems ). 4 700 MHz Wireless Microphone Notice at 2. 2
number of markets, and is required to be completed for all markets by June 12, 2009. In comments filed six months ago, public safety and commercial signatories to this letter strongly supported the Commission s proposal, noting that continued use of the band by wireless microphones after the transition to digital television would impede the use of the spectrum by new public safety and commercial licensees. 5 More recently, we indicated our willingness to support a reasonable transition period to clear the band of wireless microphones, so long as operations of such devices during the transition period do not impact the deployment and operation of public safety and commercial systems in individual markets. The ongoing delay in resolving this proceeding is making the case for a transition period less tenable, and we believe there remains strong support for clearing the 700 MHz band of all wireless microphones and LPAS devices by June 12, 2009. Importantly, the Coalition of Wireless Microphone Users, which represents a diverse group of wireless microphone users, has acknowledged that they understand that operations within the 700 MHz band must cease and that they will do so at whatever time the Commission decides, even if it requires clearing the band on June 12. 6 The undersigned associations would prefer that all wireless microphones and other LPAS devices cease operations in the 700 MHz band coincident with the conclusion of the DTV transition, as the Commission originally intended. However, we are willing to support a limited period of LPAS operations in the band, subject to two conditions. First, the Commission must act now to set a date certain by which time all devices will cease operations in the band, and that date should not extend beyond February 18, 2010. Second, the Commission must ensure that any public safety or commercial systems deployed prior to the established deadline can operate free of any interference from wireless microphones or other LPAS devices. A February 18, 2010 deadline provides sufficient time for users to transition out of the band. It would provide an additional twelve months beyond the date originally proposed by the Commission in the 700 MHz Wireless Microphone Notice, and a transition period of eighteen months from the release of that notice, in which the Commission made clear its intent to clear the spectrum of LPAS devices. The objective of repurposing the recovered analog spectrum, moreover, was well understood long before the release of the notice. If the Commission establishes such a transition period, it also must reaffirm its long-standing policy that any operation of LPAS devices in the 700 MHz band is permitted only subject to the requirement that they not cause harmful interference to public safety and commercial licensees. Lawful LPAS operations are authorized on a 5 See Comments of the Association of Public-Safety Communications Officers (filed Oct. 3, 2008); Comments of the National Public Safety Telecommunications Council (filed Oct. 3, 2008); Reply Comments of CTIA The Wireless Association (filed Oct. 20, 2008). 6 Letter from Coalition of Wireless Microphone Users, to Marlene H. Dortch, FCC, WT Docket Nos. 08-166 & 08-167 (filed Mar. 17, 2009). 3
secondary basis, and as such, must not cause harmful interference to other licensed services in the band. 7 The establishment of a transition period for LPAS devices to vacate the band does not alter the fact that any LPAS operations prior to February 18, 2010 must be permitted only on a non-interference basis. Where continued operation of LPAS devices disrupts new public safety and commercial systems, the Commission is obligated to take necessary steps to clear such devices from the band prior to the transition date. The undersigned associations recognize the importance of a reasonable and efficient transition process, and we therefore support the establishment of a 60-day notification process. Under such a process, public safety and commercial licensees intending to operate in the 700 MHz band in a particular market prior to February 18, 2010 would provide advance notice to the wireless microphone user community 60 days prior to beginning operations. 700 MHz wireless microphone operations in that market would be required to cease within that 60-day period. These actions will facilitate clearing the 700 MHz band for public safety and commercial uses, consistent with objectives established by Congress and the Commission. An FCC Consumer Advisory describing these actions will ensure that the user community has timely and appropriate guidance on how these actions will affect them in the future. Specific Steps To Prevent Additional LPAS Devices in the 700 MHz Band. Representatives of public safety and commercial wireless entrants in the 700 MHz band also have put forward a framework for immediate action to reduce the risk of additional wireless microphones and LPAS devices entering the 700 MHz band. 8 Consistent with the tentative conclusions in the 700 MHz Wireless Microphone Notice, the FCC should: prohibit the manufacture, import or shipment of LPAS devices that operate in the 700 MHz band and are intended for domestic use, by rules effective 30 days after Federal Register publication of the instant order; prohibit the domestic display, marketing or sales of existing non-conforming LPAS devices, by rules effective 30 days after Federal Register publication of the instant order; and require all non-conforming LPAS devices manufactured solely for foreign/export sales to include labeling on the device itself and in all marketing material specifying that the device is not authorized for sale or operation in the United States. 7 47 C.F.R. 803(b). 8 Letter from Association of Public-Safety Communications Officials (APCO), CTIA The Wireless Association, the National Emergency Number Association (NENA), the National Public Safety Telecommunications Council (NPSTC), and the Rural Cellular Association (RCA), to Chairman Kevin J. Martin, et al., FCC, WT Docket Nos. 08-166 & 08-167 (filed Nov. 25, 2008). 4
These actions are consistent with other actions taken by the FCC designed to protect consumers who are affected by the DTV transition. 9 Moreover, the Communications Act and Commission precedent underscores that these actions are appropriate given the interference these devices will cause. 10 For example, in 2002 the FCC determined that certain models of radar detectors would cause interference with very small aperture satellite terminals (VSATs) used for ATMs and credit card validation. 11 The FCC ordered that these previously authorized radar detector devices could no longer be manufactured, imported or marketed unless they met Part 15 rules and were so certified. 12 Indeed, while the FCC recognized that financial hardship would result (the action prevented approximately 200,000-300,000 non-compliant devices from entering the market), it found the action necessary to prevent harmful interference. 13 Similarly, the Commission has in the past banned further manufacture, sales and marketing of certain previously authorized CB receivers, again citing severe interference caused by continued device operations. 14 The FCC also has required a retailer of unauthorized devices sold only for export or for Federal use to include a description of the sales restrictions in all advertising for the devices. 15 Specifically, the FCC has required that [a]ny print or Internet advertisement must include a statement that such devices may be sold only to foreign parties or those domestic parties operating under direction of an agency of the U.S. Federal 9 The Commission has, for example, banned manufacture and shipment of non-compliant devices (certain analog-only tuners), 47 C.F.R. 15.117(i); required manufacturers to include notices with devices, 47 C.F.R. 15.124; required retailers to provide on-shelf labeling of marketed non-compliant devices, 47 C.F.R. 15.117(k); issued public notices and consumer alerts regarding various aspects of the transition and the requirements imposed, e.g., Advisory on the Transition from Analog to Digital Television Broadcasts, available at http://www.dtv.gov/dtvpsa.pdf; 9 and aggressively pursued enforcement actions to help ensure compliance, e.g., FCC Adopts DTV Enforcement Orders Totaling Over $6 Million, Press Release, April 10, 2008, available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/doc- 281444A1.pdf; DTV Enforcement, http://www.fcc.gov/eb/dtv/ (last visited Mar. 26, 2009). 10 47 U.S.C. 302 (authorizing the FCC to adopt regulations governing interference potential of devices capable of emitting radio frequency energy, and expressly providing for FCC regulation regarding the manufacture, import, sale, offer for sale, shipment, and use of radio frequency devices within the United States). See also 47 U.S.C. 154(i) (authorizing the FCC to perform any and all acts not inconsistent with this Act, as may be necessary in the execution of [the FCC s] functions ). 11 Review of Part 15 and Other Parts of the Commission s Rules, ET Docket No. 01-278, First Report and Order, 17 FCC Rcd 14063 (2002) ( Radar Order ), motion for stay and petition for partial recon. denied, Order, 17 FCC Rcd 17003 (2002) ( Radar Order on Recon. ). 12 Radar Order, 17 FCC Rcd at 14068-69. The ban on manufacturing and importing became effective 30 days after rule publication; the sales and marketing ban took effect 90 days after rule publication. Id. (setting the manufacturing and importing ban at 30 days, and the marketing ban at 60 days); Radar Order on Recon., 17 FCC Rcd at 17003 (extending the marketing ban effective date by 30 days). 13 Radar Order on Recon., 17 FCC Rcd at 17008. 14 Revision of Part 15 to Extend the Receiver Certification Program, to Revise the Technical Specifications for Receivers, and to Make Other Changes, First Report and Order, 60 F.C.C.2d 687 (rel. Aug. 4, 1976). 15 See Navtech Seminars and GPS Supply, Letter, 20 FCC Rcd 18196 (2005). 5
Government, with a requirement that domestic customers provide proof of U.S. Government authorization. 16 Notably, the current instance is even more compelling given that public safety operations and broadband wireless deployments are at risk of interference as a result of 700 MHz LPAS operations. 17 The Commission must act promptly to avoid such interference. Furthermore, the undersigned have indicated that the Commission can take the above actions while permitting manufacture for non-domestic use, subject to the appropriate labeling requirements. 18 * * * 16 Id. at 18198. 17 In the past, the FCC has exercised its Section 302 authority to regulate the sales and use of wireless microphones. See, e.g., Greg s Pro Audio, Whittier, CA, Citation, File No. EB-08-LA-0085, 2008 FCC LEXIS 4153 (E.B. 2008) (issuing a citation to a retailer for marketing an unauthorized wireless microphone); Fleco Corporation, Citation, File No. EB-04-PO-003, 2004 FCC LEXIS 3544 (E.B. 2004) (citing manufacturer for sale of two wireless microphones that violated FCC rules); Hoisden Electronics Co. Ltd., Memorandum Opinion and Order, 70 F.C.C.2d 1881 (1979) (prohibiting the sale, lease, offer for sale, importation, shipment, or distribution of a particular wireless microphone). 18 See supra pp. 3-5; see also Letter from Association of Public-Safety Communications Officials (APCO), CTIA The Wireless Association, the National Emergency Number Association (NENA), and the National Public Safety Telecommunications Council (NPSTC), to Marlene H. Dortch, FCC, WT Docket Nos. 08-166 & 08-167 (filed Mar. 9, 2009). 6
The undersigned urge the Commission to act immediately in furtherance of the DTV transition and to prevent additional sources of interference to 700 MHz public safety and commercial operations by taking the steps outlined herein. Pursuant to Section 1.1206 of the Commission s rules, this letter is being filed electronically with your office. Respectfully Submitted, /s/ Chris Fischer President Association of Public-Safety Communications Officials (APCO) /s/ Christopher Guttman-McCabe Vice President, Regulatory Affairs CTIA The Wireless Association /s/ Dr. Brian Fontes Executive Director National Emergency Number Association /s/ Ralph A. Haller Chair National Public Safety Telecommunications Council cc: Rick Chessen Paul Murray Renee Crittendon Angela Giancarlo Jim Schlichting Chris Moore Nese Guendelsberger 7