Public vs. Private Mobile Services: An Analysis of a Tortured History

The most important and widely used mobile service of our time, mobile broadband service, is now classified as a private mobile service. The service is clearly broadly offered to the public. How did it come to be classified as a private mobile service? This paper undertakes a historical analysis of the relevant statutes and regulations from the 1940s through 2018. We start with the problem facing the FCC in the 1940s, when it attempted to create a framework for allocating spectrum to a long list of competing wireless services. We analyze how the statutory mandate to consider the public interest led the FCC to segregate non-governmental mobile services into public safety radio services, industrial radio services, domestic public radio services, and land transportation radio services. We examine why the FCC made a distinction between public mobile service and private mobile service, based on whether the service was common carriage, characterized by an offering to the public for a fee. We then examine the effect upon regulation of mobile services of the introduction in the 1950s and 1960s of pre-cellular mobile telephone services and paging services. We turn next to the effect upon regulation of mobile services of the introduction in the 1970s and 1980s of cellular voice service. Cellular voice service dramatically changed the landscape of mobile service. We analyze why and how the shift in use of mobile service triggered corresponding changes in regulatory policy. In particular, we examine the competition for spectrum between public cellular service and private dispatch service, and how the FCC considered the public or private nature of the service in spectrum allocation decisions. We also examine why the FCC for the first time placed limitations on interconnection of private mobile services with the telephone network. We then turn to Congressional action. We examine Congress’s attempt in 1982 to give statutory guidance on spectrum allocation. We analyze why and how Congress defined for the first time private land mobile service. In particular, we analyze the role of interconnection in that definition. We examine the FCC’s ensuing Orders that had the effect of expanding private mobile services to include services offered to the public, and how that blurred the lines between private and public mobile services. We then analyze Congress’s response in 1993, when it introduced new definitions of private and commercial mobile services, in an attempt to more clearly distinguish between private and public versions of similar mobile services. In particular, we examine how interconnection with the public switched network became a significant factor in the classification of private and commercial mobile services. The paper concludes with a review of the recent arguments of whether mobile broadband Internet access service is a commercial mobile service or a private mobile service. We hope that a better understanding of the history of private and public mobile services may lend insight into how mobile broadband service came to be classified as a private mobile service, as well as to whether such a classification is reasonable given that history.