Wireless Bureau Wisely Decides To Not Play Referee In 3.65 GHz Band

I have a fondness for the 3.65 GHz band for a number of reasons. In the first place, I was heavily involved in the the fight over the rules. For another, it seems to be filing an important niche in the wireless broadband ecosystem. So I was pleased when the FCC’s Wireless Bureau resisted the invitation to get involved in interference disputes in the band. OTOH, it also highlights the value of having a referee with jurisdiction in case something does go wrong.

I know I’m getting to this late, as the decision came out at the end of December, but it’s been a busy time. More below . . .

I and others who do not subscribe to the theology of the gods of the marketplace are often accused of wanting regulation for its own sake. Tosh. While I can hardly speak for everyone, I take my cue (as always) from the Book of Ecclesiastes which advises that there is a time and a place for everything. That includes knowing when to act and when not to act because, (contrary to those who like to hide behind the “do no harm” cliche) the decision not to act is as much a decision to do something as the decision to act — and has its own set of consequences.

Which brings us back to the 3.65 GHz band. This is the “licensed-lite” band, designed to be just a little bit more restrictive than the pure unlicensed regime. It requires registration of base stations with the FCC’s licensing system so that providers of grandfathered licensed services can track down anyone causing interference and so that people using the band can coordinate with each other.

Indeed, the rules require operators to coordinate, but does not give any dispute resolution process. The idea was to eliminate the attitude of some in the pure unlicensed world that “because the rules don’t require me to play nice, I won’t — so there!” Folks are obligated to work things out, but how they go about it is their own business. A novel concept that tests the Libertarian idea that if the FCC would just go away everyone could work out these interference squabbles on their own. (I personally believe this concept works out sometimes but not others, and would like to see it work out here.)

In this decision by the Wireless Bureau, we see an operator, Neptuno Networks, trying to get the FCC to help it resolve a dispute with a relatively newer entrant, World Data PR, Inc. World Data had apparently screwed up at one point by operating (via a contractor) some unauthorized base stations. Neptuno complained, World Data corrected the problem, and the Enforcement Bureau investigated and issued a citation.

Apparently, Neptuno found this insufficient. When World Data applied for more licenses to expand its system, Neptuno filed a Petition to Deny. Last December, the Broadband Division of the Wireless Bureau issued their Order denying the Petition. It boils down to:

1) The rules do not contemplate Petitions to Deny for 3.65 GHz band site registrations once a party qualifies for the general non-exclusive national license (the initial registration). So while we are treating this as an informal request for action under Rule 1.41, we are not going to entertain these sorts of things on a regular basis. Everyone else take note that we are resolving this to establish that fact and don’t bug us again.

2) We suspect that what is really going on here is that Neptuno wants a “first in time, first in right” rule that would require World Data to protect its existing operations. There Is No Such Thing “As First In Time, First In Right” In The 3.65 Band!

3) Are clear enough? Good.

It seems to me this is exactly the right result, and I applaud the the Broadband Division for acting quickly and expeditiously to make it very clear that the FCC will not act as a referee in the 3.65 GHz band. Yes, the FCC is there as a back up if someone tries to ignore the rules, as evidenced by the Enforcement Bureau taking action on the initial interference complaint. But that’s it. For the band to stay flexible and capture all the good elements of the purely unlicensed bands, the FCC cannot become a “moral hazard” by offering a place to resolve disputes when someone file — like the Media Bureau has become for cable set-top box waivers.

So kudos to the Broadband Division and the Wireless Bureau. Hopefully the industry will take the hint and continue to find ways to play nice with each other.

Stay tuned . . .

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