The Federal Communications Commission (FCC) issued an Order on July 21, 2011 in response to a Petition for Declaratory ruling filed earlier this year by the City of Charlotte, North Carolina, on permissible uses of the 700 MHz public safety broadband spectrum. Although the Petition was formally dismissed on procedural grounds, the FCC provided an interpretation of Section 337 of the Communications Act that could significantly affect the agency’s determination of which governmental or non-governmental entities will be deemed eligible to use the 700 MHz public safety band. This fundamental question remains under consideration as part of the FCC’s Fourth Further Notice of Proposed Rulemaking (Fourth FNPRM) on the use of the 700 MHz band.
The FCC has taken the position advocated by a number of utilities that the term “public safety service” in Section 337 refers to the communication service being provided, not to a potential user’s identity as a “public safety” or “non-public safety” entity. The FCC also expressed an expansive view on the types of governmental uses that would satisfy Section 337’s “sole or principal purpose” test that could arguably be extended to include utility services.
The FCC explicitly limited its holdings in this Order to governmental use of the 700 MHz band and stated that eligibility questions for non-governmental users remain under consideration. In addition, while the FCC noted general support for allowing utilities and similar entities to access the 700 MHz public safety broadband network, the FCC also noted differences and disagreement regarding the level of access that should be allowed. Finally, the FCC noted that nothing in the July 21st Order addresses the issue of whether or how Section 337 could be interpreted to allow utility access to the 700 MHz band in the first place.
Charlotte requested a ruling from the FCC “clarifying” that state and local governments are presumptively eligible to use the 700 MHz band and that Section 337 of the Act does not limit the scope of activities they may undertake using this spectrum. In other words, according to the argument advanced by Charlotte, if the “sole or principal purpose” of an entity is the protection of the safety of life, health, or property, then the entity (such as a local government) is eligible to use the 700 MHz spectrum for any non-commercial purpose.
The FCC explicitly rejected this argument and held instead that “the best interpretation of the statute provides that the term ‘public safety services’ is directed towards the communications service being provided by the entity in question, rather than the underlying service provided by the entity, in determining the use of the spectrum.” (emphasis added). As the FCC further explained, “[T]he entity making the communications need not be a police, fire, or emergency medical entity, but the communication undertaken must solely or principally be used to protect the safety of life, health, or property.” According to the FCC, “[E]ven though Charlotte and other government entities have access to the spectrum as an eligible licensee or lessee, the uses by its personnel must also be restricted to those uses that conform to the ‘sole or principal purpose’ prong of Section 337(f)(1)(A).”
The FCC then stated that it has the discretion to “determine … what types of activities the communications service must support in order to satisfy the requirement that the sole or principal purpose of the service is the protection of life, health, or property” and that “many types of routine uses would qualify.” The FCC described the following examples provided by Charlotte and various commenters as examples of the type of communications services that would meet the “sole or principal purpose” test:
To support airport operations, where “ensuring the routine safety of airline passengers, crew, and airport personnel and property in a complex air transportation environment requires vigilance and close coordination and communication;”
By transportation departments in the design and maintenance of roadways, the installation and maintenance of traffic signals and signs, etc., which affects the safety of motorists and passengers; and
By city planning departments to ensure compliance with building and zoning codes intended to protect the safety of life and property.
However, in a footnote, the FCC explicitly declined to make any determination as to whether the use of the 700 MHz spectrum by a government-run utility would meet the “sole or principal purpose” test, stating that this particular question is under consideration in its pending Fourth FNPRM on the use of the 700 MHz band.
The FCC also expressly stated that today’s Order applies only to the use of the 700 MHz public safety band by governmental entities and does not address the use of this band by non-governmental entities such as investor-owned utilities. Nevertheless, the FCC did confirm in this Order that both the identity of the user and the specific use of the spectrum would be factors in determining whether use of the 700 MHz public safety band will be permitted.