1 Taking Ownership of the Regulatory Process (or How to Make the Gumbo) Stephen E. Coran Rini Coran, PC (202) FISPA Year End Meeting New Orleans, Louisiana October 7, 2010

2 Recipe for Success  Leadership  “Life does not consist in thinking, it consists in acting.” – Woodrow Wilson  “Our task now is not to fix the blame for the past, but to fix the course for the future.” – John F. Kennedy  Initiative  “I never sit on the fence. I am either on one side or another.” – Harry S Truman  “Don’t expect to build up the weak by pulling down the strong.” – Calvin Coolidge  Participation  “Politics should be the part-time profession of every citizen.” – Dwight D. Eisenhower  Reasonableness  “The hole and the patch should be commensurate.” – Thomas Jefferson

3 Ingredients  The Legislative Process  Where the gumbo is made  The Regulatory Process  Where the gumbo is packaged  TV White Spaces  Spicy enough?  Spectrum for Backhaul  The next batch

4 The Legislative Process  Know your Sausage-makers  Federal – Senate and House representatives  State – Elected representatives  Local – Zoning officials  Help make the Sausage  Understand the threat and the opportunity  Develop a plan  Communicate what you do and how it benefits constituents  Find allies to help develop, implement and communicate the plan  Determine best tactics  Know when to compromise, and when not to

5 The Legislative Process  Sell the Sausage (or sell a better grade)  Newspaper articles, letters to the editor  Press releases  Grass roots support  Support from allies

6 The Regulatory Process  Take the sausage, make the gumbo  Notice of Proposed Rulemaking leads to new rules  Begins with petition for rulemaking or on FCC’s initiative  Comments and Reply Comments  Oral and written ex parte presentations  Notice of Inquiry does not lead directly to new rules, but data collection efforts can be important

7 Cas(ing) Study  FCC established ability to regulate broadband Internet services based on Title I “ancillary authority” of Communications Act  Early this year, FCC began proceeding to codify six “network neutrality” principles  Non-discrimination  Transparency  Ensure consumers’ ability to receive all lawful content and run all lawful applications, subject to reasonable network management practices  National Broadband Plan recommendation to extend universal service support to broadband  Net neutrality part of President Obama’s policy plan

8 Cas(ing) Study  In Comcast case, FCC sought to prevent Comcast from secretly degrading its customers’ lawful Internet traffic  On April 6, 2010, the D.C. Circuit ruled that FCC had not adequately demonstrated that it had “ancillary authority” under Title I to regulate Internet network management  FCC can only assert authority if Congress grants it

9 Cas(ing) Study  On June 17, 2010, the FCC adopted a Notice of Inquiry on “The Third Way” to reclassify FCC’s broadband authority to enable regulation  FCC seeks comment on the following approaches:  The “first way” – should wired service offerings continue to be classified as Title I “information services”?  The “second way” – should Internet connectivity be classified as a “telecommunications service” under Title II?  “The Third Way:” Should the FCC reaffirm that Internet information services should remain generally unregulated?  Should the FCC classify only Internet connectivity service offered as part of a wired broadband Internet service as a telecommunications service?  Should the FCC forbear from applying all of the provisions of Title II other than the small number needed to implement fundamental universal service, competition and small business opportunity, and consumer protection policies that have broad support?

10 Cas(ing) Study  Comment/Reply Comment cycle ended August 17  Chairman Genachowski has encouraged industry to get together on rules (e.g., Google-Verizon pact)  On September 1, FCC released a Public Notice seeking comment on two “under-developed” issues:  Managed services  Mobile wireless platforms  Comments due October 12 and Reply Comments due November 4  By pushing decision past election date, was Chairman Genachowski signaling that he wants Congress to intervene?

11 Cas(ing) Study  Meanwhile, House Democrats circulated draft legislation to give FCC authority to regulate the first four net neutrality principles  Legislation failed when Republicans did not support the bill  “But will the Commission, having spent the entire summer avoiding action on net neutrality, now go ahead and do what its been saying it will do? Or will it punt on the entire issue?” – Rob Pegoraro, The Washington Post, October 3

12 TV White Spaces  Rules adopted November 4, 2008 to govern fixed and personal/portable use of vacant TV spectrum on an unlicensed basis  WISPA actively sought higher-power, “licensed-lite” process with registration and geolocation  FCC also indicated it would initiate inquiry for higher-power services

13 TV White Spaces  Fixed Devices  Permitted on TV channels 2-51, except Channels 3, 4 and 37  Must incorporate geolocation capability that accesses privately maintained database of protected services (e.g., incumbent broadcast stations)  Power maximum of 4 Watts EIRP  Must use outdoor antennas with spectrum sensing capability to identify wireless microphone signals not in database  Operation not permitted where digital TV stations operate on co-channel or adjacent-channel basis

14 TV White Spaces  Geolocation Database and Sensing  All devices that do not operate in client mode must access database of registered stations before operating  Database to be managed by qualified database administrator(s) selected by FCC, although FCC will retain interference resolution functions  Database registrants will include: full-power TV, Class A TV, low- power TV, TV translator/booster, PLMRS/CMRS operating on Channels 14-20, broadcast auxiliary and Offshore Radiotelephone Service stations  Database will be accurate to within 50 meters  Devices also must be equipped with technology capable of sensing intermittent wireless microphones at a -114 dBm minimum detection threshold

15 TV White Spaces  17 parties, including WISPA, filed Petitions for Reconsideration  WISPA, Motorola and Silicon Valley companies asked for spectrum sensing requirements to be eliminated entirely  Cost to employ sensing would spell disaster for WISP deployment in white spaces  Unnecessary to protect incumbent TV and other services  Less restrictive means to protect authorized wireless microphones

16 TV White Spaces  WISPA Petition for Reconsideration  Asked for decrease in minimum receive antenna height and increase in maximum base station height, while maintaining existing protection to TV stations and headends  Will decrease cost of rooftop installations  Will decrease number of needed base stations and sites  Asked for increase in power to 20 watts transmitter power  Will increase coverage area to facilitate more cost-effective deployment for point-to-point and point-to-multipoint  Asked for “licensed-lite” database search requirements for fixed deployments

17 TV White Spaces  After heavy last-minute advocacy, on September 23, FCC adopted Order that:  eliminated simultaneous sensing requirement  eliminated 10-meter AGL CPE restriction  reserved two channels near Channel 37 for unlicensed wireless microphones, with additional spectrum available under specific circumstances upon application to the FCC  further restricted maximum base station height to better protect broadcast stations  Retained 30-meter maximum for base stations above ground level (AGL)  Added restriction that tower site must not exceed 76 meters above average terrain (HAAT)

18 TV White Spaces  FCC did not increase power, but indicated it may consider this issue in a future proceeding  FCC did not adopt FiberTower, et al., proposal to license up to 36 megahertz for backhaul  FCC staff required to provide report by end of year  FCC deferred decision on database administrators, though decision expected fairly soon  Questions:  What will equipment cost and when will it be available?  Will devices be standards-based?  Will devices be dynamic enough to find other frequencies if channels are foreclosed by future licensing or “re-packing” of spectrum to accommodate mobile wireless?

19 Spectrum for Backhaul  On August 5, 2010, the FCC released a Notice of Proposed Rulemaking and Notice of Inquiry proposing to make 750 megahertz available for backhaul and other technical changes  Comments due October 25 and Reply Comments due November 22

20 Spectrum for Backhaul  Notice of Proposed Rulemaking Proposals:  Allow Fixed Service operations to share spectrum with BAS and CARS  MHz = 250 megahertz  MHz = 500 megahertz  Variety of channel bandwidths to promote flexibility  Minimum payload requirements, with adaptive modulation to address anomalous signal fading  Use of spectrum for auxiliary stations

21 Spectrum for Backhaul  Notice of Inquiry:  Should FCC reduce relax efficiency standards for “rural” areas?  Should FCC change its antenna standards?  Smaller size?  Effect on interference?

22 Final Thoughts  “Washington is a city of southern efficiency and northern charm.” – John F. Kennedy  “Associate yourself with men of good quality if you esteem your own reputation; for ‘tis better to be alone than in bad company.” – George Washington  “Get action, do things; be sane, don’t fritter away your time; create, act, take place wherever you are and be somebody; get action.” – Theodore Roosevelt

23 “Be sincere; be brief; be seated.” – Franklin D. Roosevelt Questions? Stephen E. Coran Rini Coran, PC (202)