Re:	Amendment of Part 2 of the Commission's Rules to Allocate Spectrum Below 3 GHz for Mobile and Fixed Services to Support the Introduction of New Advanced Wireless Services, including Third Generation Wireless Systems, First Report and Order, ET Docket No. 00-258

It is high time to remove the cloud of uncertainty from the 2500-2690 MHz (2.5 GHz) band, and we wholeheartedly support the decision not to relocate current licensees or otherwise alter their licenses. The ITFS/MMDS community deserves no less after nearly a year under review. We cannot, however, support the majority’s decision to add a mobile allocation to this band at this time. Today’s decision does not satisfy the findings required by statute that any flexible allocation serve the public interest and not pose harm to existing uses. It is a rush to judgment not supported by evidence in the record. We thus concur in part and dissent in part.

Section 303(y) of the Communications Act requires the Commission, as part of its allocation process, to make several affirmative findings before permitting flexible use in any band. The Commission must find inter alia that: such an allocation would be in the public interest; such use would not result in harmful interference among users; and such use would not deter investment in services or systems.1 The record here does not support such findings, but the majority nonetheless adopts a flexible allocation based on the view that markets will always determine the most highly valued use of spectrum. Section 303(y) demands a more rigorous analysis prior to adopting a flexible allocation.

Had Congress desired an across-the-board policy in favor of flexible allocations and purely market-driven service decisions, it would have adopted one. Instead, Congress delegated to the Commission the responsibility to examine the public interest, interference concerns, and the impact on investment to determine whether flexibility would be appropriate in particular instances. After reviewing the comments filed in this proceeding and the Commission staff’s own Final Report, we conclude that the record as it presently exists does not support a flexible allocation in the 2.5 GHz band.

The Commission set aside spectrum for ITFS almost forty years ago to give educators a powerful tool to help their students. The paramount public interest in the ITFS spectrum should be to support users’ educational programming mission. Although the Notice of Proposed Rulemaking specifically asked whether the addition of a mobile allocation would further the ITFS mission, the record offers no support for such a finding.

The record does, however, make clear that the education community makes excellent use of the band. The 1,275 current ITFS licensees serve millions of students on thousands of channels at more than 70,000 locations. The licensees form a broad spectrum of educators and educational entities, including state governments, state universities, public colleges, secondary schools, elementary schools, parochial and private schools, public television stations, and hospitals. These educators use the ITFS spectrum for a variety of innovative and successful applications, including telecourses at all educational levels, traditional educational programming, professional and worker training, and back office administrative communications for schools.

We take this opportunity to recognize the important contributions that ITFS makes in our educational system and to note that the costs of undermining the services delivered by its licensees would be high. Success stories regarding the delivery of point-to-multi-point educational video and audio programming, interactive telecourses, and other ITFS-related applications are legion. In order to illustrate the public interest value of this service we believe that it is important to highlight examples of the efforts of a few licensees in three broad areas where ITFS improves our country’s educational performance.

• Rural access. The South Carolina Educational Television Commission includes 64 stations. It serves nearly 800 public schools and more than 400,000 students. Given that a majority of South Carolina’s students live in rural areas, ITFS allows the state to tailor its educational technology plan so rural students have access to 1,500 hours of new educational programming each year, as well as live, interactive remote instruction. These powerful services might otherwise be beyond the reach of rural schools.

• Inner city access. The Catholic Television Network uses its ITFS licenses to serve more than 600,000 students and 400,000 households. Recipients of these services include schools, colleges, parishes, community centers, hospitals, nursing homes, and residences across the country. From the Los Angeles Archdiocese to the New York Archdiocese, these ITFS licensees are providing critical educational services to a large number of low-income communities where services delivered via CTN’s ITFS facilities bring educational resources that are otherwise unavailable.

• Worker training. Stanford University operates five ITFS channels. Using these channels, the university offers 250 graduate-level courses each year to thousands of workers at hundreds of companies in Northern California. In an era when "knowledge-based workers" are the most valuable resource to our national economy, the ITFS is giving Stanford and educational institutions around the country the ability to improve worker skills and improve productivity through remote education.

In the last several years we have made significant changes in the service rules governing 2.5 GHz band, including allowing digital operations and two-way services. In each instance, we were careful to ensure that the changes advanced the ITFS mission.² As noted above, we requested comment on whether adding a mobile allocation for this band would advance the educational mission and, if so, how such operations could be used in the educational context.³ In response, no educational users expressed support for adding a mobile allocation.⁴ Absent evidence that mobility will assist educational users, we risk the unintentional consequence of undermining the mission of the ITFS.

The majority asserts that the public interest is satisfied by providing licensees with choice. They cite the Commission’s 1999 Spectrum Management Policy Statement, which finds that "Flexible allocations may result in more efficient spectrum markets."⁵ While flexible allocations are appropriate in many instances, the Policy Statement clearly did not state that flexible allocations are warranted in all circumstances. We believe that the public interest in this band is served by ensuring that our policies further the ITFS educational mission. The record simply does not support the majority’s finding.

The majority also points to the value of fixed wireless broadband services in rural areas as a reason for protecting incumbents in the 2.5 GHz band. We strongly agree. Congress demonstrated an unmistakable interest in the availability of advanced services, such as wireless broadband services, in rural areas in Section 706 of the Telecommunications Act of 1996. The MMDS licensees have demonstrated that their technologies hold great promise to deliver broadband services to rural areas where wireline broadband might be unavailable. The availability of broadband services in these communities would contribute to achieving the Communications Act’s goal of equal access to communications services in all areas of the country.

We therefore think that it is important to understand how the addition of a mobile allocation would effect the roll-out of wireless broadband services in rural areas. If we are relying on the value of MMDS licensees providing rural broadband as a reason for not relocating current licensees, we must be sure that by adding a mobile allocation we are not undermining rural broadband. The decision here could have a damaging effect on broadband deployment.

The Commission has previously concluded that section 303(y) reflects "Congressional concern that proposals for flexible use of spectrum have the potential, if not thoroughly considered, to create interference between services and discourage investment and technical innovation."⁶ To address these concerns, the Commission has determined that section 303(y) requires "a positive determination that such issues have been considered, and that these potential problems will not be realized, before it approves such flexible use of spectrum allocations -- i.e., allocation or service rules . . . ."⁷ Although the majority finds that under current technology, fixed and mobile (other than portable) sharing of the 2500-2690 MHz band does not appear feasible, the majority nonetheless concludes that a flexible allocation satisfies the requirements of section 303(y). We disagree.

During the past year, the Commission’s staff has conducted an exhaustive examination of the 2.5 GHz band. The staff’s Final Report reviewed the technical characteristics of the band, the incumbent licensing scheme, the current and evolving uses of the spectrum, and the potential for using the band for advanced wireless mobile systems.⁸ The Final Report identified the significant hurdles raised by introducing mobile services into this band. In particular, the report concluded:

• Current licensing scheme. Incumbent ITFS and MDS use of the 2500-2690 MHz band varies from one geographic area to another. This lack of uniformity presents serious challenges to developing band sharing or segmentation options that could be used across the country without severely disrupting ITFS and MDS use.⁹

• Sharing. If currently contemplated 3G systems were to share the same spectrum or channels in any given geographic area, large co-channel separation distances would be needed between 3G systems and incumbent ITFS and MDS systems to avoid harmful interference. For example, a 3G base station (either high-powered or low-powered) would have to be beyond the radio horizon or 100 miles to avoid causing interference to a co-channel ITFS/MDS receiver. Very low-powered 3G mobile stations would have to maintain distances between 62 and 100 miles to avoid causing harmful interference to co-channel ITFS/MDS receivers.¹⁰

• Segmentation. Segmenting the 2500-2690 MHz band to enable third generation mobile wireless systems access to a portion of this spectrum would raise significant technical and economic difficulties for incumbents, especially if all ITFS/MDS operations were to be relocated within the band. Any segmentation plan would sharply reduce the spectrum available for two-way ITFS/MDS systems, which would result in reduced data speeds or smaller coverage areas.¹¹

The comments in this proceeding, moreover, reveal significant opposition to a flexible allocation. Many ITFS and MDS parties conclude that the addition of a mobile allocation simply makes no sense.¹² Even mobile wireless providers committed to finding 3G spectrum conclude that the 2.5 GHz band is not a viable solution to their needs.¹³

The majority’s explanation of its basis for concluding that a mobile allocation would not result in harmful interference among users does not satisfy us. They assert that parties can introduce mobile services into this band without causing harmful interference to ITFS/MMDS operations because incumbent licensees will determine the specific services to be offered. Harmful interference, of course, is of critical concern to neighboring licensees, and the fact that an incumbent rather than a new entrant would choose to introduce mobile services does little to assuage an adjacent licensee’s concerns.

The decision also observes that any mobile use that does not comport with existing technical rules or interference agreements cannot occur in this band until after the Commission conducts a service rules proceeding. Any new rules, they assert, would ensure that incumbent ITFS/MMDS and mobile operations could co-exist in this band and protect incumbent uses. While the majority has decided to defer consideration of interference issues to a service rules proceeding, section 303(y) requires the Commission to address these concerns "before it approves such flexible use of spectrum allocations"¹⁴

Finally, several incumbent licensees assert that a mobile designation will negatively impact investment in fixed broadband technologies and systems in the 2.5 GHz band. Without a solid basis to conclude that both fixed and mobile services can thrive in this band, we are wary of the unintended consequences that could result. We sincerely hope this is not the case. Given the interference hurdles identified above, we believe it is premature to conclude that a mobile allocation will spur investment in new technologies for this band.

We note that the majority expresses no desire to initiate a mobile service rules proceeding at this time. We believe a more prudent course would have been to not grant a mobile allocation at this time and indicate that, as technological and marketplace developments occur, it may be appropriate to review the 2.5 GHz allocation at a later date.

In conclusion, we strongly support the decision not to relocate current licensees or otherwise alter their licenses. ITFS provides critical services across the country, and MMDS has the potential to contribute significantly to the roll-out of broadband in rural areas. However, adding a mobile allocation for the 2500 MHz band is premature, unwise, and contrary to the statute.