TR Daily Entities Predict T-Band Auction Will Fail
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Tuesday, September 1, 2020

Entities Predict T-Band Auction Will Fail

Public safety and industrial/business entities and others say that any attempt by the FCC to auction the T-band will fail because it won’t generate enough revenue to cover the costs of relocating public safety incumbents, and they also are concerned by the lack of available relocation spectrum. They called on Congress to promptly rescind a statutory mandate that the Commission reallocate public safety T-band spectrum and begin an auction by next year.

However, if the FCC goes ahead with an auction, it must ensure that the costs of relocating public safety and I/B licensees are covered and that adequate replacement spectrum exists, they said in comments filed by yesterday’s deadline in PS docket 13-42 in response to a notice of proposed rulemaking released in July (TR Daily, July 6). There was also support for a framework that would allow public safety licensees to bid on licenses and retain their existing channels.

Under the Middle Class Tax Cut and Job Creation Act of 2012, the FCC has to relocate public safety incumbents by 2023. FCC Chairman Ajit Pai, members of Congress, and public safety entities have urged Congress to repeal the mandate and, in particular, have cited the importance of the frequencies during the COVID-19 pandemic to operations in the 11 major metro areas where they are used. Non-public safety licensees don’t have to be relocated from the T-band under the statutory mandate, but the FCC sought views on whether they should. While auction proceeds can be used to cover the costs of public safety licensee relocation, they cannot be used for such expenses of I/B licensees.

The NPRM proposed to issue licenses for spectrum used by public safety T-band users only when net auction bids exceed the estimated relocation costs of incumbents. It noted that relocation costs could hit $6 billion.

The NPRM also observed “that some public safety licensees operate in the T-Band pursuant to waiver on channels not listed or referenced in section 90.303 of our rules, and thus are arguably outside the scope of the T-Band Mandate. For example, the 476-482 MHz block (broadcast television channel 15) in Los Angeles currently is used by public safety incumbents pursuant to a waiver, and 476-482 MHz is specifically excluded from the list of available frequencies identified in section 90.303.65. In addition, other T-Band public safety entities have received waivers of section 90.305 of the Commission’s rules, or are operating via frequency pair assignments classified as Industrial/Business, pursuant to waivers of section 90.311(a)(2) of the rules. We seek comment on whether we should interpret the statute to require the Commission to auction T-Band spectrum licensed to public safety entities under the aforementioned waivers, and to require these licensees to relocate out of the T-Band.”

In a statement on the NPRM, Commissioner Jessica Rosenworcel suggested that the FCC consider exploring “how instead of triggering license grants on winning bids, we can trigger the start of the auction on other indicators of auction success, like upfront payments or short-form applications. This would reduce the administrative expense and time devoted to an auction with no likelihood of success. In addition, we could take a close look at what conditions we can lawfully place on the bidding eligibility under Section 309(j) of the Communications Act. For instance, if it is possible to limit participation to those who rely on these airwaves today, we might be able to give public safety users a fighting chance to keep their spectrum in the future.”

In its comments, the New York City Police Department said it “has serious concerns regarding the feasibility of migrating its[] public safety Land Mobile Radio system from the T-Band spectrum to another spectrum band within the legislative timeframe mandated by the Middle Class Tax Relief and Jobs Creation Act of 2012. For the reasons stated above, the NYPD believes that the Auction is unlikely to succeed given the time and fiscal constraints specified in the Middle Class Tax Relief and Jobs Creation Act of 2012.”

“The Commission should explore the possibility of allowing existing public safety licensees to bid on their own spectrum allocations and credit them with the estimated cost to migrate their radio system to alternative spectrum,” the NYPD added. “The Commission would use all available data, including a statement from the incumbent licensee and a cost estimate from an independent engineering firm familiar with land mobile radio systems, to determine the estimated migration cost for all incumbent licensees registered to bid in the auction. If a bidder other than the incumbent licensee were to bid higher than the estimated migration cost, that bidder would be declared the auction winner. However, if the incumbent licensee, using [a] Migration Cost Offset Credit, were to be the high bidder for their existing spectrum, the incumbent licensee would be declared the auction winner.”

“There simply is no public interest benefit in implementing the steps mandated by Congress in Section 6103 of Public Law 112-96,” the National Public Safety Telecommunications Council said. “NPSTC, NPSTC member organizations, jurisdictions that rely on the T-Band, the GAO, the FCC Chairman, and two major wireless carriers have all called on Congress to repeal the T-Band reallocation, auction and clearing mandate it adopted in 2012. If Congress fails to repeal the T-Band mandate, the result is significant disruption to public safety, the likelihood of a failed auction, an unfunded mandate for public safety relocation, no viable identified relocation home, and unnecessary costs ultimately borne by taxpayers. Accordingly, NPSTC appreciates the Commission’s dilemma in implementing the law as Congress mandated.

“Neither the Commission nor GAO could find any legislative history to explain the purpose of the T-Band Mandate. Therefore, NPSTC believes that issuance of the NPRM already meets the requirement that the Commission initiate a system of competitive bidding by February 22, 2021,” the filing added. “However, as addressed in NPSTC’s T-Band Report and T-Band Update Report, actual relocation of public safety systems is much more problematic. NPSTC enthusiastically supports the Commission’s commitment to ensure the continuity of licensees’ public safety mission-critical communications under any scenario ultimately adopted, even if Congress fails to repeal the T-Band mandate. NPSTC also supports the Commission’s common sense proposal not to issue new licenses in the band if auction proceeds are insufficient to cover public safety relocation costs, an overall cost that NPSTC, GAO and the Commission have estimated to be at least $6 billion. Given T-Band systems in an urban area are used for both day-to-day mission critical communications and interoperability across agencies and jurisdictions, NPSTC recommends the assessment of auction funding adequacy be made based on an entire T-Band urban area at minimum, or on a nationwide basis.”

“The Commission was wise to propose that relocation should only occur if net winning bids would exceed the total estimated relocation costs for all public safety T-Band licensees subject to mandatory relocation. APCO agrees,” said the Association of Public-Safety Communications Officials-International. “The Commission should also not require licensees to relocate on a city-by-city or channel-by-channel basis where bids have exceeded the cost estimates. In the event that only some public safety licensees are relocated, those that remain in the band would face higher costs due to the smaller market for public safety equipment and services in the band.”

APCO added that it “agrees that public safety licensees should be compensated for any reasonable costs incurred as a result of mandatory relocation. There should not be a cap on costs, and public safety agencies should be given a broad presumption that reported costs are reasonable. The Commission should take a compressive approach to deciding what should be permissible for relocation costs. A ‘comparable facility’ should be at least as good as the existing system with respect to the system, capacity, quality of service, and operating costs, but other factors should also be considered that may not be easily identified or quantified before the relocation occurs. For example, public safety agencies should be at least as well-situated as they were in terms of factors such as interoperability and coverage.”

Los Angeles County said that its “T-Band operation is expansive, substantial, and vital to the public safety needs of the County. There is no alternative spectrum available to relocate LA County’s operations. Further, even if alternative spectrum were available, it is unlikely that the auction would result in sufficient bidding to pay for LA County’s relocation. Given all of the infirmaries in relocation, LA County supports the Commission's concept to permit LA County to remain in the T-Band, as at least a portion of LA County’s T-Band system is not covered by the Section 6103, entitling LA County to have its entire system remain in the band.”

“Displacement of T-Band systems to alternative spectrum will result in the need to re-engineer entire regional network systems to adapt to the characteristics of any alternative spectrum. In most cases this will necessitate the addition of costly repeater and microwave sites needed to sustain coverage, building penetration, and capacity. The displacement of public safety from T-Band will also be contrary to the long-standing national commitment to enhance first responder interoperability. Interoperable communications have only just recently begun to be realized in our region and a displacement from T-Band will disrupt if not negate these accomplishments,” complained the Los Angeles County Fire Department. “There is no viable spectrum alternative within the affected markets. Our Los Angeles Region is void of alternative spectrum suitable for public safety LMR deployment. The T-Band was allocated to public safety some five decades past as a direct result the absence of viable spectrum in those market areas. That situation has not changed.”

“Public safety operations in the T-Band are vital to protecting the public. Review undertaken by GWTCA and many others demonstrates that there is no alternative spectrum available to relocate public safety T-Band operations,” said the Government Wireless Technology & Communications Association. “Importantly, even if alternative spectrum were available, it is unlikely that the auction would result in sufficient bidding to pay for GWTCA’s relocation. However, if the Commission engages in an effort to locate alternative spectrum, it must only do so in consideration of all costs and all impacts of that new spectrum on public safety agencies.”

In joint comments, the Enterprise Wireless Alliance and the American Petroleum Institute said that although the Commission “has no choice but to begin the competitive bidding process … , nothing in the record to date supports the possibility that an auction of T-Band (470-512 MHz) channels will generate enough money to pay for the relocation of public safety incumbents, that there is replacement spectrum to which public safety systems could be moved, or that such an auction should even be attempted without also providing for the relocation of Industrial/Business (‘I/B’) incumbents, thereby adding more cost and the need for more replacement channels to the undertaking. Furthermore, the usefulness of T-band being converted to a broadband allocation is suspect from a technological perspective. It is a Fool’s Errand that only Congress can halt by repealing the T-Band Mandate in Section 6103. EWA and API, like the FCC, urge them to do so at the earliest opportunity.”

The groups stressed the importance of services that I/B entities deliver through T-band use. “They are used in facilities that deliver electricity, oil and gas, manufacturing, transportation, and medical services,” they said. “The most critical obstacle is the fact that there is no non-T-Band spectrum that would provide comparable functionality. Therefore, if the FCC is compelled to finalize rules in this proceeding that contemplate auctioning this spectrum, EWA and API urge them to specify that any mandatory relocation of I/B incumbents be conditioned on providing them with replacement T-Band channels in a contiguous portion of the auctioned channel(s) dedicated for that purpose. ‘Repacking’ I/B T-Band incumbents within a discrete segment of that spectrum is the only approach that will not compromise the communications of vital components of the American economy.”

Mobile Relay Associates LLC said it “supports the Commission’s proposals to: 1) auction only Public Safety spectrum, and not PMRS spectrum; 2) allow auction results to stand only in those markets where the auction proceeds are high enough to more than cover the costs of incumbent licensee relocation; 3) require that incumbent licensees being forced to relocate be paid for all the expected costs of such relocation, in advance and out of the auction proceeds; 4) not try to re-arrange spectrum holdings within the T-Band for the purpose of ‘aggregating’ contiguous T-Band spectrum to auction; 5) not try to confiscate one-half of the incumbent PMRS T-Band spectrum holdings on the fallacious assumption that PMRS T-Band licensees have never narrow-banded their operations, when in fact almost all of them have done so; and 6) protect incumbent T-Band licensees from interference from T-Band auction winners’ operations.”

“The Commission should, rather than proceed with the proposals in the Notice, (1) take no action in this proceeding; but (2) submit a report to Congress notifying the House Energy and Commerce Committee and the Senate Commerce Committee that it is and will be unable to successfully complete all of the actions called for by Section 6103 of the 2012 Spectrum Act,” suggested JVCKENWOOD USA Corp. “It should also ask to be relieved of those obligations by passage of superseding or clarifying legislation, and pending such, to postpone the timetables set forth in the 2012 Spectrum Act.”

“While the Commission is required by law to move forward with this proceeding and the auction of T-Band spectrum, the T-Band Mandate will hurt public safety users,” said Verizon Communications, Inc. “First responders in our nation’s largest major metropolitan areas continue to rely on the T-Band for critical public safety communications and it is unclear that alternative spectrum is available in many markets to support the relocation of public safety users out of the band. Even if alternative spectrum were available, we agree with the National Public Safety Telecommunications Council (NPSTC) and the Commission that the auction of T-Band spectrum would be unlikely to generate the revenues necessary to fund the relocation. Congress should thus act quickly to ensure that the T-Band Mandate does not inhibit the day-to-day operation of critical public safety networks or force the Commission to waste resources on an auction that will likely accomplish little.”

“Making additional spectrum available for commercial wireless operations on an exclusive, geographically-licensed basis must continue to be a key Commission priority,” said T-Mobile US, Inc. “While the Commission is acting pursuant to Congressional directive by initiating this proceeding, auctioning the T-Band as the Commission proposes will not meaningfully help meet the spectrum needs of Fifth Generation (‘5G’) wireless networks. Accordingly, the Commission must continue to pursue, including with the National Telecommunications and Information Administration (‘NTIA’), other opportunities to reallocate spectrum for commercial wireless use.”

The National Association of Broadcasters said “an auction of such a limited amount of spectrum in a small number of scattered markets is almost certain to fail, and that any rules and policies developed as a result of this proceeding must ensure that the primary allocation status of television broadcast in this spectrum is not reduced or constrained. To avoid wasting Commission resources, we urge the Commission to seek preliminary bids or take other actions to ascertain whether auction of limited spectrum has any chance of covering the costs of relocation of incumbents. If the Commission nonetheless decides to proceed with an auction, television broadcast stations and their viewers must be fully protected from interference. Such protection would include not permitting airborne transmitters and conditioning any high-power operations on mitigating any interference to television broadcast stations.”

“While Part 74 and Part 15 wireless microphone operation is not permitted on T-Band channels assigned to public safety, wireless microphone users rely heavily on available T-Band channels in the aforementioned 11 markets and in the entire 470-512 MHz range throughout the United States,” said Shure, Inc., a manufacturer of wireless mics. It said that “the T-Band auction is inherently a losing proposition and should not be conducted, but the FCC definitely should not exacerbate the problem by expanding the scope of the auction beyond public safety eligibles. It is obvious that the public safety T-Band auction fails the most basic economic test – potential profitability.” It said the FCC “must continue to urge Congress to repeal the T-Band mandate and refrain from moving forward with an auction that will disturb many important existing uses and produce a multibillion-dollar revenue shortfall.”

“An auction of the channels in the T-Band used by public safety would provide little benefit and cause significant disruption to critical services,” said Sennheiser Electronic Corp., which also make wireless mics. “Thus, the proposed auction should be abandoned. If the auction contemplated in this NPRM does take place, it should not be a precursor for further reallocations within the T-Band.” —Paul Kirby, [email protected]

MainStory: FCC FederalNews SpectrumAllocation PublicSafety WirelessDeployment

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