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This is an unofficial announcement of Commission action. Release of the full text of a Commission order constitutes official action. See MCI v. FCC. 515 F 2d 385 (D.C. Circ 1974).

January 6, 2000

Approving in Part, Dissenting in Part

Re: Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commission's Rules, WT Docket No. 99-168

Washington, DC -- As an initial matter, I wish to applaud the Wireless Bureau and the Office of Engineering and Technology for their tireless work in producing this item. Recent legislation greatly expedited our consideration of these issues. The Bureau and OET have made every effort to give full and fair consideration to the positions of all of the parties in order to reach the best policy results. By and large, I believe they have succeeded in crafting flexible and technology-neutral rules that will facilitate the prompt availability of significant spectrum for the highest valued uses.

The Order's approach to the primary spectrum blocks warrants particular praise. As the communications marketplace becomes increasingly competitive and dynamic, the Commission will be challenged to craft rules that allow for maximum flexibility in utilizing spectrum. This proceeding presented such a challenge. The sizing of spectrum blocks, the geographic licensing units, the aggregation and disaggregation rules, and the auction approach all have implications for the types of service providers that will succeed in the auction. Our task to balance the competing interests for the size and width of spectrum blocks has not been easy, but I believe we have done our best to preserve as many service and technology options as practicable in designing our rules for the primary spectrum blocks.

I must, however, part company with my colleagues on the item's approach to our statutory obligation to craft rules which protect public safety licensees from harmful interference. Rather than creation of so-called "guard bands," I would have been inclined to resolve our mandate by establishing strict interference limits with significant penalties for noncompliance. This approach is consistent with our statutory charge to "establish interference limits at the boundaries of the spectrum block and service areas."(1) I believe such a system would have appropriately left it to the marketplace to determine the appropriate uses of the spectrum and left to us the obligation to enforce rules that protect public safety licensees from interference. This approach would also have taken the Commission out of the difficult role of assessing the appropriate size and use of the guard bands. Nonetheless, there may well be some utility to the guard band concept as a basis for establishing boundaries and thresholds for interference. The creation of such bands alone may not have warranted a dissent.

However, even assuming "guard bands" are a necessary and appropriate convention, I am not convinced that a full 6 MHz is necessary to protect public safety. Indeed, it appears that 4 MHz or less would have provided a sufficient guard band to protect public safety licensees. Some parties have suggested that 6 MHz is necessary based on some other factors - such as the need for additional private spectrum or the need to create a viable market for "guard band spectrum." It may indeed be true that private users need additional spectrum or that 6 MHz is necessary to create a thriving market in guard band spectrum - but I find neither of these priorities in the statute. Nor do I believe these goals necessarily further the statute's purpose. Thus, to the extent I acquiesce the creation of guard bands at all, I would do so based only on an interference rationale and allocate only 4 MHz for such bands.

Today's item stops there. It only establishes the size of the guard bands. However, I feel compelled to express some concerns about some proposals that have gained currency in recent months about potential restrictions on the use of the guard bands. These items will be resolved in our Second Report and Order, but I wish to take this opportunity to state clearly my view of these pending issues.

I believe these guard bands should be open to all bidders willing to accept our interference limits on these bands. Although I believe the band manager concept is an innovative and potentially useful spectrum management tool, I cannot support proposals that would limit eligibility to a particular type of licensee. It seems to me the Commission should not be dictating business models to our licensees. In essence this limitation would say, if you want this spectrum, here is what your company needs to look like. I see no basis for such a proposed limitation. In addition, there may be many licensees who can use the guard bands for higher valued purposes than the band manager concept will allow. If a licensee can protect public safety, win the auction, and offer wireless Internet access to underserved areas, who are we to stop that higher-valued use based on some interest in testing a spectrum management tool?

In addition, the statute specifically requires that this spectrum be put to "commercial use." Whether band managers even qualify as a "commercial use" has been the subject of substantial debate. These doubts are only magnified by proposals to limit eligibility to "band managers" and preclude traditional "commercial" licensees who are prepared to comply with our interference limits.

I am also unconvinced by those who argue that we must limit guard band auction eligibility in order to "test" the band manager concept. In my view, the concept can be tested when band managers compete against other licensees in an open auction. You cannot truly test the concept by fixing the result, so that only band managers can win. Moreover, we should not in good conscience adopt any proposals that eliminate an opportunity for legitimate commercial entities to compete for spectrum simply because they fail to meet newly-minted criteria for a new non-statutory licensee, the band manager.

There are other questions that remain about these band manager proposals. First, it is not clear how a band manager is different from any other licensee that can lease its spectrum to other users. Second, how would a band manager fit into our traditional common carrier jurisprudence? What impact does that classification have on universal service? Although these regulatory issues may well be resolved, the band manager proposals create lingering doubts in my mind about the desirability of restricting eligibility to this class of new licensees.

My concerns about the various guard band proposals being considered in the Second Report and Order should not overshadow the overall strength of this item as an effort to permit market forces to determine the most-highly valued use of this spectrum. American business and consumers stand to gain significant benefits from this flexible, technology-neutral approach.

- FCC -

1    47 U.S.C. 337 (d)(1).