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FCC Seeks Comment on Proposal to Give Utilities Direct Access to 50 MHz Block of Contiguous Spectrum at the “4.9 GHz Band”

August 1, 2012

FCC Seeks Comment on Proposal to Give Utilities Direct Access to 50 MHz Block of Contiguous Spectrum at the “4.9 GHz Band”

August 1, 2012

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The Federal Communications Commission (FCC) is asking for comment on a proposal to give utilities and other critical infrastructure industries (CII) direct access to a 50 MHz block of contiguous spectrum at 4940-4990 MHz (the “4.9 GHz band”) that is currently dedicated for use by public safety agencies. The opening of this band – which is designated for both fixed and mobile use and is capable of supporting broadband communications – would provide utilities with access to additional spectrum to support their internal communications needs. Comments will be due by October 1, 2012, and Reply Comments will be due October 30, 2012.

Only entities that provide public safety services, such as state and local government agencies, are currently eligible to hold licenses in this band. However, this spectrum is significantly underutilized, with licenses for the 4.9 GHz band held by fewer than 3% of the eligible public safety jurisdictions in the country. Among other things, many local governments and public safety agencies have found that they cannot afford to deploy equipment and infrastructure in this band. Although eligible entities are permitted to share use of this spectrum with non-government organizations (NGOs) that support public safety (such as utilities) the FCC’s current rules create disincentives to the formation of public/private partnerships that would enable them to use the 4.9 GHz band for utility communications.

The FCC is inviting comment on whether it should open this band to licensing by critical infrastructure industry (CII) entities, such as utilities, as well as to commercial users.  The FCC has tentatively concluded that allowing other users in the band could stimulate more investment in the band and actually help to promote use by public safety agencies. The FCC requests comment on related issues such as the manner in which CII would be licensed (primary or secondary) and various frequency coordination schemes for this band.

The FCC also suggests that the 4.9 GHz band could be used to support the planned 700 MHz “FirstNet” public safety broadband network by providing backhaul or through the offloading from that network of certain applications such as fixed video, and it requests comment on whether FirstNet is or should be eligible for its own 4.9 GHz license.Opening of 4.9 GHz to CII, many of whom also have interest in supporting the FirstNet system, creates additional opportunities for public/private partnerships on the FirstNet network buildout.

Finally, the FNPRM requests comment on various technical issues, such as frequency coordination, channel plans, channel aggregation, power limits, and polarization restrictions.

Opening of the 4.9 GHz band for direct licensing by utilities would provide a significant opportunity for utilities to obtain access to additional spectrum needed to support the “smart grid” and other critical utility communications. Parties interested in having access to this band should consider filing comments with the FCC on how such access could promote public/private partnerships that would ultimately benefit public safety.

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.