> SEPARATE STATEMENT OF
>
> COMMISSIONER DEBORAH TAYLOR TATE
>
> APPROVING IN PART AND DISSENTING IN PART
>
> Re: *Unlicensed Operation in the TV Broadcast Bands, ET Docket No.
> 04-186, Second Report and Order and Memorandum Opinion and Order.*
>
> In the midst of the present economic downturn gripping our nation and
> the world, there is one bright spot on the horizon -- American
> technology and the American entrepreneurial spirit, especially in the
> communications and technology sector, which hold the promise of future
> innovation, investment, jobs and economic growth. One of the more
> promising areas of innovation cannot even be seen -- the "white
> spaces" that represent the unused portions of spectrum in the bands
> presently allocated to TV broadcast operations. Today's item advances
> us on a path to facilitate use of the white spaces for new wireless
> services, including broadband services, for all Americans.
>
> These are first steps only, ones that hopefully will move us towards
> modernization and more effective use of the unused portions of this
> spectrum. Indeed, these are revolutionary times in an evolutionary
> industry, with the promise of even yet unseen innovative devices on
> the horizon. Many visions exist for how unlicensed use of the white
> spaces will evolve, but evolve they certainly will. Hopefully, this
> item will help facilitate the deployment of unlicensed devices and
> services that enable consumers to enjoy more television programming
> and video than ever before, and that will allow families to transfer
> and network information, photos, and much more across multiple
> devices, technologies and platforms in their homes. Similarly,
> communities of users may find they are able to communicate seamlessly
> through mesh networks rather than traditional phone lines. Finally, as
> someone who has championed rural America, I hope that this item will
> facilitate services, including broadband, to rural areas and thus help
> reduce the digital divide that is far too prevalent in rural
> communities across our nation.
>
> In considering this order, I have listened to and weighed seriously
> the concerns of an amazingly broad array of interests. In the end, I
> have tried to reach a reasonable position that takes into account all
> interests, including, most especially, the interests of the American
> consumer. The order is not perfect -- it precludes licensed services
> and lacks needed language regarding a specific and expedited complaint
> process for broadcasters, cable providers, wireless microphones and
> individual users in the case of interference. Nonetheless, the order
> ultimately may help promote the innovation and investment in advanced
> services that consumers have come to expect from the communications
> and technology sector. Accordingly, I would like to address several
> important public policy goals, as well as some of my concerns
> regarding how this item falls short of our mandate to advance the
> interests of the American public.
>
> [Measures to Address Interference]{.underline}
>
> In crafting public policy, one must weigh the benefits and costs of
> various options. In this case, the potential costs of enabling
> unlicensed use of the white spaces are substantial. Specifically, this
> order enables a vision for entirely new services and devices but ones
> that also hold a real risk of causing interference with existing
> services, including broadcasting, cable television, and wireless
> microphones, among others.
>
> Addressing interference in the use of the spectrum has always been one
> of the primary roles of the Federal Communications Commission since
> its creation by Congress in 1934. Our predecessor agency, the Federal
> Radio Commission, also assumed this important responsibility starting
> as early as 1927. Clearly, addressing interference is one of the
> crucial tasks this agency takes most seriously and performs most
> effectively.
>
> Within the Commission, the Office of Engineering and Technology (OET)
> is the team responsible for conducting the research, analysis, and
> evaluation of devices that use the airwaves in this country. This
> group of talented staff has spent the past four years carefully
> considering whether and to what extent unlicensed devices may utilize
> the white spaces in the broadcast spectrum without causing undue harm
> to incumbent users. I have placed much faith in the Chief of OET,
> Julie Knapp, and his entire staff of engineers. Their recommendations,
> while always useful in any rulemaking, played an especially persuasive
> role in my final decision to support this item.
>
> I have been assured by Chief Knapp and our top engineers that the
> risks of interference have been appropriately considered. Ultimately,
> as the Commission's most recent report states, the extensive testing
> by OET has provided "proof of concept" for some types of unlicensed
> devices to use the white spaces. Further, as this order makes very
> clear, [all devices]{.underline} that in the future will be used in
> the U.S. market must first be tested and approved by the Commission,
> in effect demonstrating not only that there is "proof of concept" but
> also "proof in practice." While some commenters have criticized our
> testing process, both our 2007 and 2008 reports on the test results
> were peer reviewed by other expert staff within the Commission. In
> addition, these tests were open to the public, and at various points
> during this long process the work of our OET engineers was observed by
> members of the press, Congressional staff, broadcasters and other
> industry representatives, as well as other interested parties. I am
> proud of this transparent and open process and encourage OET to
> continue this commitment going forward.
>
> Based on the results of these tests, this order establishes a number
> of significant technical rules related to unlicensed use of the white
> spaces in the broadcast bands. Power limits are more restricted -- to
> 40 milliwatts, or a fraction of what wireless microphones are
> authorized to employ in these frequencies -- when operated in a
> channel immediately adjacent to a broadcast service, while a higher
> power limit applies in non-adjacent channels.
>
> In addition, and of critical importance to incumbent providers, the
> item will create a database of existing operations in specific
> channels and entire geographic areas that will remain
> [unavailable]{.underline} to all unlicensed operations. Incumbent
> providers may register their locations and unlicensed devices will be
> required to first verify that channels are available [prior
> to]{.underline} accessing them. This requirement to use this database
> will ensure that broadcast operations, broadcast auxiliary services
> (BAS), cable head-ins, public safety operations, and venues such as
> sports stadiums and theatres may register their locations and receive
> complete protection.
>
> The Commission, through our Enforcement Bureau and in consultation
> with the Office of Engineering and Technology, will investigate
> complaints of interference and take appropriate action, as we do with
> all cases of interference. I regret that my colleagues were unwilling
> to set forth in this item a more specific and swift process to deal
> with complaints of interference. I remain concerned that the item is
> too vague and does not provide necessary protections after the
> interference has occurred.
>
> I also would like to acknowledge the legitimate concerns of the many
> industries that already provide valuable services using the core TV
> bands. Regarding the concerns of my friends in the broadcasting
> industry, I want to recognize the important service they provide,
> especially all they currently are doing to make the DTV transition as
> smooth as possible. Over 90 percent of Americans are now aware of the
> DTV transition, thanks in large part to the more than \$1 billion
> invested by the broadcasters and the cable industry in PSAs and other
> public education efforts. The DTV transition is an extraordinary
> opportunity for consumers to receive revolutionary TV picture quality
> and additional programming, as well as new wireless services that will
> be available in the 700 MHz band when those channels are vacated. In
> addition, broadcasters play a key role in providing emergency alerts
> to the public. It is, therefore, imperative that TV broadcasting
> continue to be protected from interference. The power limits and other
> technical rules, proposed by OET and adopted herein, are designed to
> do just that.
>
> Regarding similar concerns by cable operators, I also recognize the
> potential for interference, both to cable head ends as well as to
> cable connections inside the home. The item takes steps to protect
> cable head ends by restricting use of white spaces devices in the
> geographic areas in which head ends are located. With regard to cable
> systems in the home, OET has attempted to establish power limits that
> will lower the risk of interference between devices in the home,
> though this risk is not, in my mind, fully mitigated. However, the
> Commission does not generally focus on interference that users cause
> to themselves. Just as we have all learned to move devices away from
> each other in the office and we no longer place our cell phones next
> to the computer, so might consumers need to reduce interference inside
> their home by moving devices, at least until the next generation of
> cable equipment becomes more widely disseminated. I encourage device
> manufacturers and indeed the Commission to provide information to
> consumers regarding these devices as they come online, as well as
> establishing 800 numbers, arming call centers with tech-specific
> solutions, email alerts, software "fixes" that lower power and other
> forms of outreach to consumers.
>
> Regarding the concerns of facilities and events managers -- including
> Broadway, sports stadiums, churches, my friends at the Grand Ole Opry,
> and many others -- the geographic database provides a critical line of
> defense. In addition, the item will make spectrum available in two
> channels above Channel 20 in those markets that are particularly
> congested due to public safety operations in Channels 14 -- 20. Taken
> together, these measures should protect the vast majority of wireless
> microphones.

[Remaining Concerns]{.underline}

> While the use of white spaces by unlicensed devices holds great
> promise and I am excited about their potential, I also have several
> significant concerns that I believe we should have addressed and
> encourage a future Commission to re-address.
>
> With regard to the possibility of interference, I regret that the
> Order does not include language that would specifically state the
> legal responsibilities of those who provide these new unlicensed
> devices. In particular, I would like providers of these devices to
> have clear notice of what they must and must not do under the
> Commission's rules. Perhaps more important still, I wanted to ensure
> that our rules specify that, in the event of significant interference
> caused by an unlicensed device, the party responsible for this device
> will also be responsible for rectifying the problem and [assume the
> cost]{.underline}. Some companies have assured us that this will be
> the case; that their business reputation requires it and it is indeed
> "good business" for them to correct the situation. However, the
> potential impact of millions of devices in the marketplace calls for a
> prudent process for recall, provisions for mitigating interference
> caused by faulty equipment, and a clear exposition of fines and
> penalties for violations. I felt it was imperative to deal with this
> on the front end, but today's item is not sufficiently clear on these
> matters. I hope the next Commission will address this
> [before]{.underline}, rather than after, any harm occurs.
>
> In addition, I am disappointed that this item does not take more
> specific steps to address higher-power fixed operations in rural
> areas, which could have been used to provide much needed backhaul, a
> key component of broadband service in rural communities. While I
> understand that the Commission will issue a Notice of Inquiry on this
> issue, this is too little and too late. Rural consumers need help now,
> and the record on the various options -- including licensed approaches
> -- is sufficiently developed for the Commission to take action today.
>
> More fundamentally, and most troubling about today's order, the
> Commission's decision makes it difficult if not impossible to allow
> anything other than unlicensed use in the white spaces of the roughly
> 300 megahertz that comprise the TV broadcast spectrum. Other valuable
> uses, such as licensed operations, are precluded. I am not convinced
> that [all]{.underline} of the white spaces in Channels 2 -- 51 needed
> to be made available for unlicensed use. Indeed, many of the companies
> that have discussed with me their exciting new business models have
> focused only on the use of Channels 21 -- 51.
>
> As with any policy decision, we must be cognizant of the opportunity
> cost -- that is, we must look with a clear head at that which we are
> giving up. This is extremely valuable spectrum -- beachfront property
> spectrum -- with estimates of the value of white spaces under a
> licensed approach ranging from \$8 billion to over \$24 billion. Even
> if the low estimates in this range are the most accurate, we must
> consider this lost value to the U.S. Treasury and, ultimately, to
> taxpayers. Even more important than the lost auction revenues, the
> consumer benefits of spectrum use in a licensed regime are many times
> greater than what service providers pay to the U.S. Treasury. Of
> course, the benefits to consumers of services in unlicensed bands also
> may be significant. But if all white spaces spectrum in this band is
> set aside for unlicensed use -- rather than appropriately balancing
> licensed and unlicensed approaches -- we are likely to ignore the huge
> value of alternative uses. In short, we need to consider the
> tradeoffs, and the American consumer -- in urban as well as rural
> areas -- will suffer if we do not.
>
> Based on my conversations with OET, independent engineers and various
> members of the White Spaces Coalition, it would appear that allowing
> unlicensed use of the white spaces only in Channels 31-51 would be
> sufficient to provide four channels -- that is, 24 megahertz -- in
> even the most congested markets and many, many more channels in
> suburban and rural markets. As an example, 24 megahertz is greater
> than the amount of spectrum made available in the largest block in the
> 700 MHz auction held this spring. In that auction, the C block sold
> for \$3.7 billion, despite significant use restrictions that arguably
> lowered the final bid. While four channels of white spaces creating 24
> megahertz would not represent contiguous spectrum, this nonetheless
> would be sufficient for broadband services in these highly congested
> markets. Other urban markets would have somewhat more spectrum
> available, while rural markets might have as much as 100 megahertz
> more spectrum available.
>
> Accordingly, I am not convinced that making Channels 21 -- 51
> available only for unlicensed use is necessary to create the types of
> exciting new services that have been predicted. I am even less
> convinced -- and the record does not support -- that we must make the
> entire core TV band, Channels 2 -- 51, available for such use. This is
> more spectrum than was requested by most of the parties who argued
> that they could provide new and innovative services using Channels 21
> -- 51. Therefore, while I supported moving forward to allow a portion
> of the white spaces be made available for unlicensed use, I
> respectfully dissent from including all channels in the band plan in
> this order.
>
> I thank Chief Julie Knapp, the fine staff at OET, and all those who
> have worked so hard on this item, including the many hours spent
> testing and analyzing devices. However, this was only a step on this
> incredible technology journey. Testing on individual devices will now
> commence and must be subject to the same stringent, thorough, and
> transparent procedures and reporting we have seen thus far in this
> process, consistent with the Commission's procedures for all device
> certifications. In addition, it is of critical importance that the
> Commission establishes and ensures a process that will immediately
> respond to and mitigate any interference experienced by incumbent
> users and individual consumers alike.