TV White Space/TVBD R&O
Publication in Federal Register
(Expected) This Week

Remember the classic cartoon of the little boy sitting on the toilet with the caption that says "The job isn't finished until you complete the paperwork"? Well the same is true at FCC. The saga of Docket 04-186:

Event	Date
R&O Approval	11/4/08
Release of text	11/14/08
Release of Errata	1/4/09
FR Publication	2/18/09 ??

As a public service, I am giving a link to my interpretation of the Errata showing how it changed the original rules. Note there is no guarantee that the FR version of the new rules are the same as what I estimate they should be and the FR version is binding.

The publication will start a clock for the effective date of the new rules and will also open the door for appeals. It is expected that the broadcasters, perhaps together with their fellow travelers/odd companions at Shure, will not ask the FCC for reconsideration but will go directly to an obscure federal court thought to be supportive of vested interests. Others are expected to ask FCC directly for reconsideration of the details of the decision.

So don't expect TVBDs at your local Radio Shack in the next month or two.

UPDATE - Published 2/17/09
74 FR 7314,7332
(Citation is a link)

2nd UPDATE
Silicon Valley Mercury News reports that NAB & MSTV filed appeal on 2/27 in U.S. Court of Appeals for the D.C. Circuit.

MSTV May Now Be in ex parte Compliance
for a
Record Breaking 156 Days!

Since it is the holiday season, we thought we would emphasize the positive. The last clear violation of the Commission's ex parte rules by MSTV was their 7/28/08 filing in Docket 98-120. (In that filing they "fuzzified" the date of the meeting by stating it was "Thursday". Since 7/28 was a Tuesday than the latest possible date of the meeting was 7/24 and thus they did not file "no later than the next business day" as required by 47 C.F. R. 1.1206(b)(1)) However, since FCC's General Counsel has an unwritten interpretation of the Commission Rules that it will not accept complaints about ex parte violations from anyone who is not a party to that proceeding, we have not notified them of this issue.

In the 156 days since then, MSTV has filed 43 ex parte filings, none of which directly appear to violate the rules - a new record for them! (They have filed nothing since Halloween - they must have had a great party that day!)

Now there are 2 gray cases so we are reluctant to be too definitive here:

On 10/28/08 MSTV filed a one pager on Docket 04-186 with the following substance:

"Based on press accounts we express concerns over two issues. We emphasized our interference concerns with placing 40 milliwatt unlicensed devices on the first adjacent channel. We also noted that there is no justification for proposing a process to approve devices that rely exclusively on sensing to avoid interference. No documents were exchanged or submitted."

One might question whether this meets the 1.1206(b)(2) requirement that

"Memoranda must contain a summary of the substance of the ex parte presentation and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required."

However, possible violations of this type are so common at FCC these days that there is nothing unusual here. The classic MSTV violations of recent years were much skimpier than this filing and were filed late - an issue not subjective in nature. Only a naive Carterite would think this filing did not meet the rule.

But then there is the case of the MSTV 10/9/08 filing in Dockets 04-186 and 02-380. This document oddly forgets to mention what date the meeting took place.* (However, the 5 paragraphs of content clearly is detailed enough.) We could, in theory, tell OGC about this since we are a party to one of these proceedings. However, we have been told by OGC in a 7/28/08 letter that "Accordingly, please be advised that future allegations may, if the facts warrant, be handled in a more summary manner". So clearly OGC, which has not taken any enforcement action in the ex parte area for at least a decade, doesn't want to hear from us on ex parte violations. (This matter is subject to Petition for Review pending before the Commission.)

So let's also assume in the holiday spirit that the 10/9/08 filing concerns a meeting that happened on the 8th or 9th and the omission of the date was an innocent oversight by hard pressed lobbyists and their prominent law firm fighting to defend TV station owners against the evils of Silicon Valley, thus giving MSTV a perfect record for the past 156 days.

Now MSTV members, used to the most aggressive macho representation before the FCC of any major party appearing there, may wonder why their trade association has become as wimpy as NAB - whose ex parte compliance record has been perfect for years. But we will leave that to the MSTV membership to work out with the MSTV staff.

SpectrumTalk just wants to thank MSTV on behalf of the public for its improved behavior and attention to ex parte rules and hopes it continues into the New Year.

Monday's Reforming the FCC conference in Washington will have a lot of discussion about the dismal state of ex parte compliance at FCC - at least in MSTV's case we have positive news and I will be sure to include it in my remarks.

* Seems oddly reminiscent of their 7/28/08 filing discussed above that "fuzzified" the date of the meeting.

Wireless
Microphone Update:

The Twisted Logic of NAB and MSTV - Now Locked
in Conflict with APCO and CTIA

Faithful readers will recall that we have talked a lot here about the saga of wireless microphone use in UHF-TV channels. While we have discussed that most wireless microphone use is illegal, we have also stated that "wireless mics are a legitimate use of spectrum (that) deserves more from FCC than benign neglect that allows most users only criminal spectrum squatting. (3/10/2008)

While CTIA and the cellular establishment were ignoring the wireless mic issue and seeing the TV whitespace docket (04-186) as a way to covet more spectrum and while the public safety establishment was asleep on this issue, concentrating on the D block, SpectrumTalk reported a year ago that FCC had still taken no action to evict legal, let alone illegal, wireless microphones from the 700 MHz band (TV channels 52-69) -- even as they were giving part of the band to public safety users for critical needs and auctioning off the rest for billions. (11/26/07)

Well, finally FCC woke up after the PISC petition/complaint. In August FCC released an NPRM/Order in Dockets 08-166 & 08-167 addressing the petition and announced (at long last) "that the Commission’s Enforcement Bureau has initiated an investigation relating to the marketing practices of various manufacturers of wireless microphones." (However, there is no visible sign of that investigation or its results.)

The order part of the NPRM/Order was amusing. It stated,

"In light of our tentative conclusion above not to permit the operation of low power auxiliary stations on 700 MHz Band frequencies (698-806 MHz) following the end of the DTV transition, we also find that continuing to accept new license applications for low power auxiliary station licenses that involve the operation of such stations on this spectrum after February 17, 2009 would impair the objectives that we are proposing in this proceeding." (para. 23)

The problem here is that the vast majority of all users here are not licensed since their use is illegal. Therefore, stopping new licenses will have no impact. Indeed, it is unlikely that any new licenses are issued normally. There are only 156 current legal licenses in the whole country for wireless microphones and other low power auxiliary equipment in the 700 MHz band. (It is likely that many broadcaster wireless microphone operators who are eligible for licenses have never applied for them, why should they if no one else does?)

How did we get into this mess? The comments of Nady Systems, Inc. are both candid and informative (a refreshing change from their self serving competitor, Shure., Inc.):

"The FCC's Policy Toward Unlicensed Wireless Microphone Use Was
Tacit Allowance and Benign Neglect

Throughout the 1980s and early 1990s. John Nady several times raised with FCC officials the question of whether FCC regulations needed changing so that the growing class of wireless microphone users who were ineligible to be licensed under the existing rules could become officially authorized. The officials told him that there is no need to change the licensing regulations - a cumbersome process - because since the FCC has not received complaints of wireless microphone interference with TV reception unlicensed use is not a problem. For over thirty years. the FCC has known about unlicensed wireless microphone use in the TV spectrum for purposes not authorized by regulation and has tacitly allowed that use to continue. For example, in opening up the 171-216 MHz TV spectrum to wireless microphones, the Commission noted '..the need for wireless microphones used in special events coverage and in dramatic presentationshaving a large number of performers:') The Commission stated: 'We are confident that groups other than broadcast licensees can use these frequencies responsibly. obtaining the benefits of such use while being aware of the interference possibilities associated with it.' In 1992. the Commission observed, 'commentators argue that experience with wireless microphones in the TV spectrum has shown that devices of this type end up being used by all sorts of people in places where they are not authorized by the rules')

The FCC's policy of benign neglect toward unlicensed wireless microphone use in the TV spectrum has allowed the wireless microphone industry to develop technologically, fill a market need, enabled prices to come down as a result of volume production and opened up the benefits of wireless microphones to professionals not limited to the TV radio-motion picture industry."

There is an important moral here: when the Commission focuses its efforts almost entirely on petitions from major parties and ignores actual technical and market developments, its rules drift farther and farther away from reality. "Rule maintenance" is needed to prevent this, but that is not a sexy topic at FCC and gets little management attention. Focusing policy resources on "buying IBM" is less risky for managers at FCC. But technology and the communications market move at "Internet speed" while government regulations move at "government speed".


Which brings us to the 10/3/08 joint comments of MSTV and NAB. Having aligned themselves with Shure in Docket 04-186, MSTV/NAB continue to follow Shure's policy of protecting its lawless user base even though NAB usually advocates strict compliance with Title III licensing. The really twisted logic is at the very beginning of the comments, not hidden in the middle or an obscure footnote):

"MSTV and NAB propose that wireless microphone operation on a specific frequency and geographic area end upon the earlier of (1) sixty days prior to the date on which the 700 MHz wireless entrant intends to begin service, per a notice sent to the affected wireless microphone licensees, or (2) February 2012.
...
Under the plan proposed by MSTV and NAB, any commercial wireless or public safety licensee will be able to ensure that its frequency is cleared of wireless microphone use prior to beginning service — even if that date of first service is February 17, 2009." (emphasis added)

Questions for MSTV/NAB: As has been said repeatedly in both 04-186 and 08-166/7, without any contradiction at all in the public record, the vast majority of wireless microphone users are unlicensed and not eligible for licenses. Indeed, they are in criminal violation of 47 U.S.C. 301. No one knows who they are or where they are. (In the past NAB has opposed expanding Part 74 eligibility so NAB is not exactly an innocent party here.) So how does the public safety licensee or auction winner find these people to give them 60 day notice to vacate?

But MSTV/NAB are not just worried about the illegal users. They add,

"Adoption of such a short timeframe for licensed wireless microphones to transition to other bands inevitably will result in service disruptions. Re-tuning equipment to cease operation in the 700 MHz band will cost on average $50,000 to $75,000 per station. Stations’ budgets, which already have been completed for the year, do not account for this expense; station resources have been allocated to complete the digital television transition. Even if stations could afford to purchase new equipment to operate in different bands in such a short timeframe, manufacturers may not be able to meet the unexpected demand. Of course, a significant increase in demand is also likely to add to the cost of obtaining new or re-tuned equipment."

Dane Ericksen, a former FCC enforcement official and prominent broadcast consultant, blasts away all the MSTV/NAB arguments (as well as the wireless mic interests') in his reply comments. ( Guess no more consulting work for him from MSTV or NAB. They are both reputed to demand "loyalty" from their consultants.)

Did not MSTV/NAB members, of all people, know that the DTV transition was coming? Had they read about the 700 MHz auction? Even their favorite magazine, Broadcasting & Cable, wrote about the 700 MHz auction!

Are MSTV/NAB members paupers? Maybe NTIA should issue special coupons for low income broadcasters to subsidize their wireless mic replacements?

Please explain under your plan how "any commercial wireless or public safety licensee will be able to ensure that its frequency is cleared of wireless microphone use prior to beginning service — even if that date of first service is February 17, 2009."

We promise to post without editing, any reply from broadcasters and wireless mic interests (and others) as long as the wording is appropriate for current FCC broadcasting content limits. (Fleeting expletives OK.)

This 700 MHz issue has now become an "irresistible force/immovable object" topic as CTIA and APCO ("APCO urges the Commission to take aggressive steps to eliminate those nonconforming uses as quickly as possible") have staked out opposing positions. MSTV and NAB usually get their way at FCC in practice, but this time they may have "bitten off more than they can chew".

Marcus Spectrum Solutions Files Petition Asking FCC to Pay More Attention to ex parte Violations

“I believe that transparency is best achieved through the creation and publication of clear rules. However, for the regulatory regime to be successful, these rules must also be strictly enforced. Based on personal experience, I know that the U.S. regulatory model has only been successful when the FCC has enforced its rules vigorously. Failure to enforce rules sends the inappropriate signal that companies may engage in anticompetitive behavior or other unlawful conduct with impunity.” -- Remarks of Commissioner Kathleen Q. Abernathy, Market Reform: A Tool for Achieving Universal Access Panel, ITU Global Symposium for Regulators. Geneva, Switzerland, December 8, 2003

A petition recently filed by your blogger's consulting operation asks the full FCC to review a decision by its Office of General Counsel (OGC) rejecting several ex parte complaints that dealt with late filed documents that also appeared to lack the detail about an oral meeting required by the FCC's ex parte rules:

"Memoranda must contain a summary of the substance of the
ex parte presentation and not merely a listing of the subjects
discussed. More than a one or two sentence  description
of the views and arguments presented is generally required."
-- 47 CFR 1.1206(b)(2) 

Careful readers will recall that this issue started with a posting here almost 2 years ago in October 2006. The posting was the text of a letter to OGC pointing out that while NAB has a meticulous record of detailed timely filings of oral contact with FCC on ongoing rulemakings, MSTV appeared to be a serial violator of the 47 CFR 1.1206(b)(2) requirements with respect to both timeliness and detail. OGC finally got around to answering this letter more than 5 months later without addressing the specifics of the 16 MSTV filings listed that appeared to violate the rules. A later OGC letter explained the absence of any statement on these specific allegations stating,

“We understood your October 13, 2006 letter to express general concern about the enforcement of ex parte rules, with the particular meetings cited merely being examples.”

OGC has now rejected several subsequent ex parte complaints dealing with different later MSTV filings on grounds such as,

• an undocumented requirement that only parties with standing in a proceeding can file complaints,
• that there is an unspecified “statute of limitations” on the timeliness of complaints,
• that the standard of compliance is the practice of other parties in the same proceeding,
• that the presence of multiple complaints is important, and
• that the complainant must prove substantial harm.

Perhaps these would be good policies, perhaps not. In any case they are policies that are embodied neither in the Commission’s regulations nor in its past decisions (let alone court decisions) nor even in advisory information on its website.

It is amusing to note that on the very day OGC both rejected the MSS complaint and discouraged MSS from filing future ones, MSTV made a late filing in CS Docket No. 98-120 in which they took the unusual step of "fuzzifying" the date of the actual meeting by referring to it as "Thursday" and not giving the actual date.

As far as I can tell, the last time FCC has even chastised anyone on late filed somments was in 2002. There is no evidence I can find that FCC has ever taken action under §1.1216 to punish in any way any party for repeated violations of ex parte rules. While the vast majority of ex parte filings at FCC are compliant, repeated violations by one party that escape even a warning letter may, in the words of Comm. Abernathy, send "the inappropriate signal that companies may engage in anticompetitive behavior or other unlawful conduct with impunity."

Readers are encouraged to form their own opinions of the issue here and contact FCC with their own thoughts. At present no docket number has been established for this issue and it is not anticipated that public comment will be requested. This also means that there is no online access via ECFS for information on this proceeding. However, I will post links to any documents I receive. Alternatively, readers may just respond to this posting on the link below.

Procedurally, the MSS petition is now a "restricted proceeding" and the rules of 47 CFR 1.1208 apply. In the off chance that FCC might enforce this section more than it enforces §1206, those communicating to FCC on this issue are advised to serve MSTV per §1208.
===============
ECFS-like Log of Documents on Petition

MSS Petition of 8/25/08
MSTV Opposition to Petition for Review 9/9/08
(Does not include several attachments that are past MSTV filings that are said to comply with rules)
MSS Reply to Opposition 9/16/08

UK's Ofcom Proposes Unlicensed TV White Space Devices


Yesterday, the FCC's UK progressive counterpart, released a long awaited report entitled "Digital Dividend Review:A statement on our approach to awarding the digital dividend". "Digital dividend" is Eurospeak for what happens to TV spectrum after the end of the DTV transition, analogous to the FCC's 700 MHz auctions.

Ofcom stated (in peculiar UK spelling) the following points that I strongly agree with:

This decision matters for several reasons:

• spectrum is an essential input in the modern world. Its use underpins 3% of the UK’s gross domestic product (GDP) and generates wide reaching benefits for citizens and consumers. But spectrum is a scarce resource, so how it is managed is a critical issue;
• the spectrum presently used by analogue terrestrial television is exceptional because it can readily be used to provide high bandwidth services over long distances and into buildings; and
• the opportunity to put this spectrum to new use does not arise often. Analogue television has been its main use for many decades, under a framework that dates back to 1961.

... Under the Communications Act 2003, our duties are to further the interests of citizens and consumers and to secure the optimal use of spectrum. Our objective for the DDR is to award the digital dividend in a way that maximises the total value to society from its future use. This includes value both to citizens and to consumers.

• 
  

These would be admirable goals in any country. Then comes the real shocker, the UK counterpart of the FCC's Docket 04-186 proposals for white space/"interleaved spectrum" in UK-speak:

1.34 We propose to allow licence exempt use of interleaved spectrum for cognitive devices. Some licence exempt uses are able to coexist successfully with higher power licensed uses. Cognitive radio is a new technology that can detect spectrum that is otherwise unused and transmit without causing harmful interference. It has the potential to support a wide range of uses, including high speed always on broadband. It is particularly suited to operating in interleaved spectrum, where significant capacity is often unused at any one location at least some of the time.

1.35 We see significant scope for cognitive equipment using interleaved spectrum to emerge and to benefit from international economies of scale. But use of equipment in the UK will need to protect licensed users of this spectrum, including DTT and PMSE, against harmful interference. We will not allow cognitive equipment to use interleaved spectrum until we are satisfied on this point.

1.36 We think that allowing licence exempt cognitive use of interleaved spectrum is likely to be justified. Allowing access in this way will overcome the coordination problem they would otherwise face while imposing limited costs on other potential uses. We also think it is likely to encourage more innovation and competition in the provision of services, promoting the interests of citizens and consumers.

... 6.26 In contrast, cognitive devices could make flexible use of interleaved spectrum without causing harmful interference to licensed users. This would allow many of the applications set out above to be delivered at a low opportunity cost, resulting in substantial benefits. Other applications and innovations might also be spurred by the availability of a large pool of interleaved spectrum for licence exempt use.

6.27 Cognitive use of interleaved spectrum would depend on the development of effective spectrum sensing technology that would avoid transmitting in channels used by licensed services. Devices are being developed by a number of manufacturers, including Microsoft, Motorola and Philips. These companies have each submitted devices to the FCC for testing in the US. These devices are primarily designed to detect DTT and wireless microphone signals and, as such, would be suited for use in interleaved spectrum in the UK.

6.28 We therefore propose to allow cognitive technologies to use interleaved spectrum on a licence exempt basis subject to establishing that the probability of harmful interference to licensed users will be low. It is likely that the total value generated would be greater than the opportunity cost of allowing licence exempt cognitive access. The total value would be composed of the private value of foreseen
applications, which we estimate to be approximately £150-250m (NPV over 20 years), as well as benefits that would come from innovation and new services. There may also be broader social benefits. Because cognitive devices do not need to be exclusively assigned rights to spectrum and should automatically avoid interfering with licensed services, the opportunity cost should be low.

6.29 We would need to specify a number of parameters to which equipment would need to adhere. Early measurements made by the FCC suggest that such spectrum sensing is possible but careful certification might be needed.* It may take some years to undertake the work necessary to gain appropriate international harmonisation. (Emphasis added)

* Looks like Ofcom reads the FCC documents differently than MSTV and NAB! - MJM

In UK-speak, wireless microphones are called "programme making and special events"/PMSE and handled on a strictly licensed basis, apparently without the wholesale violations as in the US, by a private coordinator, JFMG, Ltd., who charges fees to all PMSE users based on the amount of usage. Unlike the FCC, Ofcom is making explicit plans for PMSE after the digital transition and they will have to pay for spectrum use, as is the general trend for spectrum access in both US and UK. Oddly, in the US both the legal and (majority) illegal wireless microphones users assume they have a constitutional right to free spectrum use with existing equipment in perpetuity, unlike most spectrum users.

On the PMSE issue, Ofcom states

1.41 We have decided to reserve most of the available interleaved spectrum to meet the needs of PMSE users. PMSE is an existing use of interleaved spectrum. It comprises a large and diverse community of businesses, community organisations and individuals. We think that PMSE users would find it difficult to coordinate a bid for access to spectrum, and we think there is a high risk of market failure as result. However, with a careful transition, they can move to accessing spectrum via market mechanisms in the future.

1.42 We will award a single package of interleaved spectrum to a licensee that will act as a band manager. To help PMSE users with the transition to market mechanisms, we will use criteria designed to ensure that the band manager’s interests are aligned with those of PMSE users. The band manager will pay a charge for the spectrum based on Administered Incentive Pricing (AIP) and will be able to earn revenue by charging its customers for access. But regulation will ensure that it has to meet reasonable demand from PMSE users on fair, reasonable and non-discriminatory terms. So long as these obligations are met, the band manager will be able to allow others to make use of its spectrum.

1.43 We have decided that channel 69 should continue to be available for PMSE use throughout the UK on a licensed basis. We will also promote greater licence exempt use of channel 70 for PMSE, in the interests of community users.

So one TV channel (#69 in the UK channel plan whihc is not the same as the US plan) will be available for wireless microphones through the coordinator independent of any auction. Some of the remaining white space will available to wireless microphones through the coordination.

In another UK development that will be bound to displease the US broadcast establishment, Ofcom has published proposals to squeeze multiple HDTV transmissions into a single DTV transmitter. Remember when we thought TV broadcasters should get one new 6 MHz channel for their old NTSC channel because 6 MHz was needed for HDTV? Ofcom stated,

1.14 We have identified two technical advances that together could result in a very significant increase in the DTT (=digital terrestrial television in Eurospeak) platform’s capacity. These relate to improvements in the standards used (a) for coding (compressing) information, to squeeze as much as possible into a given amount of spectrum, and (b) in its physical transmission.

1.15 The two changes are:

• An improved video and audio coding compression standard called MPEG-4 . This is expected (over time) to operate at up to double the efficiency of the coding standard that is used at the moment on DTT, MPEG-2. This means that a DTT multiplex* could carry up to twice as many services using MPEG-4 as can currently be achieved using MPEG-2, whilst maintaining similar picture quality.
• A new transmission standard, known as DVB-T2. This is expected to deliver an increase of at least 30% in the capacity of a DTT multiplex over the current standard, whilst maintaining the same coverage. This standard is a development of the existing DVB-T standard used in the UK since 1998. DVB-T2 is still undergoing development by DVB in Geneva, but is expected to be finalised in spring 2008.

1.16 It is important to note that MPEG-4 and DVB-T2 differ in one important respect. MPEG-4 can be introduced within a multiplex (so it can offer a mix of services coded in MPEG-2 and MPEG-4). But the introduction of DVB-T2 requires a whole multiplex to be converted from DVB-T. This is, of course, a larger step-change.

1.17 The introduction of these two technologies could, if combined, increase the capacity of a multiplex by up to 160%. This is a very large increase. It is the equivalent of raising the number of Standard Definition (SD) services that can be carried on a DTT multiplex from around eight currently to around 13-15 at DSO, and over 20 in the longer term. HD is generally regarded as unfeasible on DTT in the UK without use of MPEG-4: but with the use of these two technologies combined, a single DTT multiplex could in time offer at least four HD services.

* DTT = digital terrestrial transmission. In UK and many European countries, broadcasters do not own and operate their own transmitter, rather DTV signals are transmitted on multiplexed transmitters owned by a middle man with several signals on each transmitter and channel. Under present UK policy no HDTV is transmitted over the air because it was thought that multiplexing HDTV signals was impossible. Now Ofcom thinks it is possible. - MJM

Now UK channels are different than US channels so all the details don't apply here. But the nagging question is whether the US erred in giving established broadcasters 6 MHz for HDTV and whether we could get our own "digital dividend" by making TV broadcasters double up on multiplex transmitters. I suppose the suggestion will not get me an invitation to the next NAB convention.