On February 22, 2012, the President signed into law the “Middle Class Tax Relief and Job Creation Act of 2012.” The law includes several spectrum related provisions that may be of interest to electric utilities seeking access to the 700 MHz public safety spectrum, including the allocation of the 700 MHz “D-Block” to public safety and for the construction and operation of a nationwide public safety broadband network on that spectrum.
The law allocates the 700 MHz D Block (758-763 MHz and 788-793 MHz), which was originally intended for private auction to create a private-public safety partnership, to the First Responder Network Authority (FirstNet) with funding for the construction of a single wireless nationwide public safety broadband network. Non-public safety entities will be allowed to lease the spectrum on a secondary basis.
The spectrum provisions included in this law are complex, ambiguous, and subject to further interpretation and implementation by a number of federal agencies and administrative bodies over the next several years. It remains unclear at this point whether and to what extent electric utilities and similar entities will be able to use the nationwide public safety spectrum. However, there may be opportunities to weigh in on issues relating to how the 700 MHz public safety broadband network can be implemented to allow utilities and similar entities to have shared access to the spectrum. The law appears to permit utilities to participate in the construction and operation of the nationwide public safety spectrum, including possibly entering into spectrum leasing agreements with FirstNet or a state that has elected to opt-out of the nationwide network and leasing access of their infrastructure in support of the network. While there are statutory timelines for implementing various provisions relating to the public safety spectrum, specific details still need to be worked out so it is difficult to project when and how the spectrum will be made available.
In addition to the 700 MHz public safety spectrum, the law provides the FCC with authority to conduct “incentive auctions” to encourage TV broadcasters to relinquish voluntarily some or all of their licensed spectrum for auction to commercial wireless service providers. The law also directs the FCC to initiate a rulemaking proceeding to allow unlicensed devices to operate in the 5350-5470 MHz band, which could make additional spectrum available to utilities. The FCC will be required to protect licensed users in this band and NTIA must conduct a study evaluating the use of known and proposed spectrum sharing technologies and risks to Federal users if unlicensed devices were allowed to operate in this band and in the 5850-5925 MHz band. The FCC and the Government Accountability Office (GAO) must also issue a report to Congress evaluating current uses of spectrum in the 11 GHz, 18 GHz, and 23 GHz point-to-point microwave bands to ensure that such spectrum is being used efficiently, possibly as a precursor to auctioning these bands for commercial services on a geographic basis. The law will preempt state and local authority over collocation of radio equipment on an existing tower, and has a number of provisions intended to facilitate use of federal property, including easements and rights of way, for installation of wireless equipment.
Public Safety Broadband Network
The following are some of the key issues for electric utilities and other non-public safety entities regarding use of the nationwide public safety broadband network:
Bandwidth Available. The law allocates the 700 MHz D-block to public safety as 10 MHz of additional spectrum.
Governance. The law vests most responsibility for the nationwide network in FirstNet, a 15-person board to be established by NTIA and with most of the members to be appointed by the Secretary of Commerce. FirstNet will be granted an initial 10-year license for the 700 MHz D Block and existing 700 MHz public safety broadband spectrum. As explained below, the law also includes provisions for each state governor to opt-out of the national plan and take responsibility for building the radio access portion of the network in his or her state.
Network Construction. The law will not restrict construction of the network to partnerships or consortia that include one or more commercial carriers as had been proposed in an earlier draft. The law encourages proposals for rural coverage that include partnerships with commercial carriers to speed deployment to rural areas, but they are not required. FirstNet is encouraged to use existing commercial “or other infrastructure” to build the network.
Access to Network Capacity. FirstNet, in consultation with state and local jurisdictions, is responsible for selecting entities to use the network and assigning priorities to them. It is not clear how the consultation or selection process will work in practice. All users, including public safety entities, will be required to pay a “Network User Fee” to FirstNet to access the network. A “secondary user” may enter a “covered leasing agreement” with FirstNet, and pay a Lease Fee, to permit access to the network on a “secondary basis” for non-public safety services. FirstNet may also charge a lease fee for use of any infrastructure, such as antennas or towers, constructed or owned by First Net. The terms “secondary user” and “secondary basis” are not defined in the law.
Opt-Out by a State. Within 90 days after FirstNet completes the RFP process, a state governor may elect to opt out of the nationwide network proposed by FirstNet and choose instead to issue RFPs to construct its own radio access network in the state. If the FCC approves the state plan, the state will lease the 700 MHz spectrum from FirstNet and will pay user fees to FirstNet for any core elements of the nationwide network that the state uses. The state can enter its own covered leasing agreements with secondary users for non-public safety use of the network capacity, with the revenues from such leases used only for constructing and maintaining the radio access network in the state.
Prioritization. FirstNet appears to have the final decision-making authority to select entities to use the nationwide network and to assign priority levels to them. However, it appears that a state that elects to build its own radio access network may have authority to set priority levels for users within the state.
The opinions expressed are those of the authors on the date noted above and do not necessarily reflect the views of Fish & Richardson P.C., any other of its lawyers, its clients, or any of its or their respective affiliates. This post is for general information purposes only and is not intended to be and should not be taken as legal advice. No attorney-client relationship is formed.