A Shared Vision for Spectrum

By Trey Hanbury and Wes Platt

Earlier this month, the U.K. took a small but significant step towards a future in which spectrum is shared rather than reserved for a particular use.  The U.K.’s Department for Culture, Media, and Sport (“DCMS”) released its 2014 Spectrum Strategy, which committed to “a gradual move” from exclusive to shared use of spectrum, in line with the European Commission's promotion of spectrum sharing. As unencumbered airwaves become a thing of the past, “sharing will be crucial,” it said.  “Technical and regulatory innovations to enable such sharing must be prioritized.” 

DCMS anticipates that the benefits of such a shift will be enormous.  In particular, DCMS predicts that such an approach can help double spectrum’s annual contribution to the U.K. economy by 2025.  It also states that such new and innovative forms of spectrum use will be necessary to keep up with developments such as 5G, Big Data, and the Internet of Things.

For starters, DCMS recommends making additional portions of government-owned spectrum available for public use.  Among other things, DCMS states that that the creation of a central public sector spectrum database should help generate sharing opportunities, and that new technologies such as geolocation databases and white space devices could add to these opportunities.  It also mentions that the Ministry of Defense is in the process of preparing additional bands for sharing and has already agreed to share the 2025-2070 MHz band with wireless cameras on a more formal basis.  Additionally, DCMS notes that it plans to apply the same core principles across all frequencies, to modify its regulatory framework to better support geolocation databases, and to meet with experts and publish additional conclusions by July 2015.

Time will tell whether sharing is an effective and practical way of easing (and perhaps overcoming) the current spectrum crunch.  The U.S. President’s Council of Advisors on Science and Technology (“PCAST”) recently considered the same set of issues, and it recommended a similar approach.  

FCC Delays Incentive Auction to Mid-2015

 Contributed by: Trey Hanbury


The US Federal Communications Commission has postponed the auction of 600 MHz broadband spectrum currently occupied by the nation’s over-the-air television operators until mid-2015.

In a blog posted on the Federal Communications Commission’s website on December 6, 2013, Chairman Wheeler announced the delay and a more detailed schedule that sets tentative milestones for activities leading up to the auction.   The blog is short on specifics, but here are the key milestones Wheeler describes by date:

  • January 2014 – the FCC staff intends to announce a more detailed incentive auction schedule at the Commission meeting currently slated for January 30, 2014.
  • “Early 2014” – the Chairman intends to circulate a proposed Incentive Auction Report and Order to the Commissioners.
  • “Spring 2014” – the FCC is scheduled to vote on the Incentive Auctions Report and Order.
  • “Second Half 2014” – the FCC staff is supposed to release an Auction Comment Public Notice and a Procedures Public Notice that will provide additional details and seek comment on how the specific parts of the auction will actually function; these notices will also provide details about some type of extended mock auction that will invite substantial participation from potential bidders.
  • “Mid 2015” and “only when our software and systems are technically ready, user friendly, and thoroughly tested” – the FCC will start the 600 MHz incentive auction.


The subject of multiple congressional hearings, including one before the U.S. Senate Committee on Commerce, Science, and Transportation this week, the US 600 MHz incentive auction is an innovative, two-sided spectrum auction authorized by the Spectrum Act of 2012 that is designed to encourage over-the-air broadcasters to surrender their spectrum to mobile broadband operators.  The newly announced delay allows the FCC more time to work the many complexities of one of the most technically complicated and politically fraught auctions of all time.    

Wireless Avionics Intra-Communications Technology Not Slated for Takeoff Any Time Soon


By Cary Adickman and Deborah Broderson

Wireless avionics intra-communications (“WAIC”) technology holds the promise of a safer, more efficient international aviation fleet, but the slow pace of designating spectrum for the service and the possible need for the reallocation of additional spectrum may leave WAIC sitting on the tarmac until at least 2015. And absent broad international consensus, WAIC deployment may never get off the ground at all. 

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Significant Changes in the Mexican Telecommunication Landscape Pending Formation of New Regulatory Body

Mexico flagBy Trey Hanbury and Deborah Broderson

The Mexican telecommunication regulatory body is in the midst of a significant overhaul, and major changes on the horizon could affect any entity with wireless voice or data operations near the U.S.-Mexican border.  Should uncertainty persist into the new year, the Mexican regulatory transition has the potential to affect the upcoming 600 MHz incentive auction, which will require intensive international technical coordination of television stations and wireless broadband operations in border regions.  

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Why Would DISH Want to Acquire LightSquared's Spectrum?

Satellite dish

By Trey Hanbury and Neal Desai

After receiving FCC approval to use its 2 GHz spectrum for terrestrial operations, DISH Network Corporation, the satellite television provider owned by Charlie Ergen, has emerged as a key player in the wireless space.  As part of an aggressive push to expand its spectrum holdings to offer both voice and Internet services to complement its current TV offering, DISH is seeking to acquire LightSquared’s spectrum assets.  DISH offered to purchase the bankrupt carrier’s frequency allocations for $2.2 billion in May and DISH’s CEO Ergen is said to have purchased more than $1 billion in LightSquared’s secured debt in a further attempt to acquire LightSquared’s spectrum.  

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LightSquared's Quest for Spectrum Continues

By Trey Hanbury and Neal Desai

LightSquared, the satellite-terrestrial venture backed by Phil Falcone, continues to push for a spectrum solution that the FCC will accept.  On Aug. 7, 2013, the FCC moved the proceeding forward, requesting comment on LightSquared’s recent study that showed no interference between its proposed terrestrial uplink operations and GPS providers.  If the Commission is convinced there is no interference, this approach would allow LightSquared to deploy terrestrial uplink operations on its current MSS uplink spectrum.  Paired with higher-frequency downlink spectrum that LightSquared is seeking, this could finally provide the basis for LightSquared to offer its wholesale 4G LTE service.

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FCC Seeks Comment on Reforming the Multibillion Dollar E-rate Program

By: Trey Hanbury and Deborah Broderson

FCC logoIn 2012, the government authorized the transfer of $2.25 billion from telecommunications consumers to schools and libraries to fund “E-rate,” the federal government’s largest education technology program. This year, the FCC proposed fundamental changes to the E-Rate program that could either help usher in a more efficient, more responsive program for students and educators, or swell funding for what some regard as an already inefficient government subsidy program.   

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FCC Increases Spectrum Concentration Screen

In an otherwise unremarkable order approving AT&T’s acquisition of multiple licenses in the 2.3 GHz band, the FCC yesterday changed its rules on spectrum concentration.  Generally speaking, the FCC reviews an acquiring firm’s spectrum holdings and applies a “spectrum screen” to ensure that no more than one-third of the total pool of available broadband spectrum resources rests with any one company in any given market.  Yesterday’s order, however, increases the screen to incorporate twenty megahertz of Wireless Communications Service (WCS) spectrum into the total amount of spectrum the FCC considers useful and available for broadband use. 

As a result, the new spectrum screen for wireless transactions and auctions is as follows:

  • 102 megahertz or more of cellular, PCS, SMR, 700 MHz, and WCS spectrum, where neither BRS nor AWS-1 spectrum is available;
  • 121 megahertz or more of spectrum, where BRS spectrum is available, but AWS-1 spectrum is not available;
  • 132 megahertz or more of spectrum, where AWS-1 spectrum is available, but BRS spectrum is not available; or
  • 151 megahertz or more of spectrum where both AWS-1 and BRS spectrum are available.
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Truth or Dare: Encouraging Truthful Bidding in the US Incentive Auction

 By: Coleman Bazelon & Giulia McHenry, The Brattle Group; Trey Hanbury, Hogan Lovells

The Federal Communications Commission recently proposed a voluntary “incentive auction” of most of the nation’s over-the-air television frequencies.  The process of trading rabbit ears for smartphones begins with a reverse auction for the broadcasters’ spectrum.  The auction is called a “reverse” auction because the government is buying, not selling, the spectrum used by the broadcasters.  The auction may have another innovative feature: unlike ascending bid auctions such as those on eBay, the FCC will start with very high prices for broadcast stations and then lower the prices broadcasters can receive as the auction progresses.  The descending prices will prompt some broadcasters to quit the auction and continue broadcasting instead.  Others will remain in the auction until the FCC finds a point at which the amount of spectrum broadcasters surrender matches the demand a more traditional ascending auction identifies for new broadband frequencies. 

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The US Telephone Consumer Protection Act and Litigation Risk

 Michele Farquhar and Mark W. Brennan authored an article for the December 2012 issue of E-Commerce Law & Policy.  Titled “The US Telephone Consumer Protection Act and Litigation Risk,” the article highlights a number of recent Telephone Consumer Protection Act legal developments and their impact on mobile financial services and other new wireless services and technologies.  The article is available here.

Setting the Arena - The German Regulator Proposes Possible Scenarios for the Future Allocation of Mobile Broadband Frequencies

 By Dr. Harm-Randolf Döpkens

The German telecoms regulator Bundesnetzagentur (BNetzA) is currently considering different scenarios for the future allocation of frequencies for mobile broadband services.  This initiative relates to the discussion about the 900 and 1,800 MHz frequencies that are currently used by mobile operators for their GSM networks. The current licenses for these frequencies will expire by the end of 2016. Mobile operators are therefore urging BNetzA for an early extension of the existing licenses while other market players make the case for a reallocation of these frequencies in an open auction. At the same time, frequency policy is required to deal with the ever increasing demand for mobile broadband services and thus needs to develop a broader strategy, taking into account the different frequency bands that are allocated and/or suitable for mobile broadband services. Apart from the GSM frequencies this includes the UMTS frequencies in the 2 GHz band (expiring 2020), the BWA frequencies in the 3.5 GHz band (expiring 2021) and the frequencies of the 2010 auction in the 800 and 1,800 MHz and the 2 and 2.6 GHz bands (expiring 2025). In addition, further frequencies in the 700 MHz and other bands may become available for mobile broadband services as a result of the 2015 summit of the World Radio Conference.

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Roamin' Holiday? Court OK's FCC's Data Roaming Rules; Hogan Lovells Part of Successful Appeal

On Dec. 4, 2012, the United States Court of Appeals for the District of Columbia Circuit issued a 30-page order upholding the FCC’s 2011 decision to require data roaming for wireless Internet providers. Verizon Wireless had appealed the order, asserting that because the Communications Act only provided for roaming for common carriers, not for other entities providing wireless Internet service on a non-common carrier basis, the FCC had exceeded its authority. The court rejected Verizon’s argument. In unanimously upholding the FCC the court found that, because wireless Internet providers are “radio” licensees, the Commission has broad discretion under the Communications Act to determine the duties associated with holding a “radio” license.  Data roaming is one of those duties.

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Beyond Kolkata: Delivering on the Goals of the Communications Act

By Michele Farquhar & Trey Hanbury

Home to more than 4.5 million people, Kolkata, India has a fascinating transportation network.  A recent visit to the city revealed bicycles, motorbikes, taxis, buses, rickshaws, cyclerickshaws, cars, trucks, and trams crowding roads already thickly congested with pedestrians, students, street vendors, and parked cars.  Perhaps as a result sharp-witted Indian critics have described traffic conditions in Kolkata’s urban core as “hell” or worse.

Yet however uncertain and, at times, chaotic, the journey, Kolkata’s transportation infrastructure continues to move people and goods through the city.   Indeed, the striking part of the network is not the congestion or pollution, both of which one can find in abundance, but the resiliency and ingenuity of the system itself.   As if by common understanding, drivers who find their lane blocked, identify the obstacle and rapidly commandeer control of the oncoming traffic lane.  When faced with oncoming traffic in their lane, drivers approaching from the opposite direction may assume control of the open space or the sidewalk.

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California AG Sends Enforcement Letter to Developers of Popular Mobile Apps

On Tuesday, October 30, the Office of California Attorney General Kamala Harris issued a press release confirming that it had begun “formally notifying” mobile device application (“app”) operators that they are out of compliance with the notice provisions of the California Online Privacy Protection Act of 2003 (“CalOPPA”).  Those companies -- many of which are major marketers -- now have 30 days to bring their apps in line with the statute’s privacy policy requirements or risk fines of up to $2,500 per app download.

As background, CalOPPA requires operators (i.e., owners) of commercial web sites or online services that collect personally identifiable information (“PII”) on California residents who use/visit the web sites or online service to “conspicuously post” a privacy policy. The Attorney General’s office has taken the position that mobile apps that use the Internet to collect PII are “online services” subject to CalOPPA.  California’s population size makes it safe for most app developers to assume that California residents comprise at least a portion of the app’s download audience.  This week, the Attorney General’s Office began sending letters to companies behind approximately 100 of the most popular apps asserting that they failed to “conspicuously post” the required privacy policy.



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FCC's WCS Order Raises Cheers...and Questions

Contributed to by Phillip Berenbroick.

In a move that has the potential to unleash new broadband deployment across the United States, the Federal Communications Commission recently loosened technical constraints on the long-dormant 2.3 GHz band. The rules that the FCC adopted October 17, 2012 essentially ratify a joint proposal that the two largest licensees in the band, the wireless operator AT&T and the satellite radio company Sirius XM, first advanced in June 2012.

The FCC praised its decision as part of its ongoing effort to “address the continued 'spectrum crunch.'” And the decision offers much to like. 

Despite its name, the Wireless Communications Service band has not proven useful for wireless communications services.  Since the FCC first auctioned the 2.3 GHz frequencies in 1997, WCS licensees have had little success in deploying wireless network infrastructure. Many different factors – from limited equipment availability to spectacular bankruptcies – conspired against successful WCS deployment. But one of the largest impediments to success was the potential for interference between WCS operations and adjacent-channel Satellite Digital Radio Service operations.

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