The Federal Communications Commission (FCC) has approved the Public Safety Spectrum Alliance’s (PSSA) stay request for the previous FCC’s plan to take back the 50 MHz of 4.9-GHz spectrum it had granted to public safety in 2002. Claiming it is under-utilized, the FCC planned to hand this spectrum over to each state. The idea was that each state would award a master lease for the spectrum to a third party, which would then determine what the spectrum would be used for in that state.
Most recently, the FCC issued the Eighth Notice of Proposed Rulemaking (NPRM) for the 4.9-GHz spectrum (Notice of Proposed Rulemaking, WP Docket 07-100). This NPRM contains language which, if accepted by the commissioners, would return the spectrum to the public-safety community.
The PSSA and others have filed comments on this NPRM and, as noted, the PSSA’s stay request was granted by the current FCC.
There are two steps to the NPRM procedure. The first is for interested parties to respond to the NPRM during an initial filing phase and the second step is for submission of comments on the filings (reply comments). Each step has a specific deadline. The deadline for filing comments for this NPRM was November 29, 2021. The PSSA filed its comments and the text of the filing document, in its entirety, follows.
Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of
Amendment of Part 90 of WP Docket No. 07-100
The Commission’s Rules
COMMENTS OF THE PUBLIC SAFETY SPECTRUM ALLIANCE
Chief Jeffrey D. Johnson (Ret.)
mellis@thepsbta.org
The Public Safety Spectrum Alliance
c/o of the Public Safety Broadband Technology Association
4616 W. Sahara Ave., Suite 1-354
Las Vegas, NV 89102
702-720-2200
November 29, 2021
I. Introduction
The Public Safety Spectrum Alliance (“PSSA”) is an alliance amongst the nation’s leading public safety officials and associations, and is an initiative of the Public Safety
Broadband Technology Association. The PSSA aims to ensure that first responders nationwide are able to use the most technologically advanced communications capabilities that address the difficult, life-threatening challenges they face as first responders protect America. The goal of the PSSA is to raise awareness about public safety communications needs, including the use of the 4.9 GHz Band.[1] With this in mind, the PSSA is pleased to provide the following comments in response to the Commission’s Eighth Further Notice of Proposed Rulemaking[2] (the “Order and Eighth Further Notice”) regarding the use of the 4.9 GHz Band.
II. History of Proceedings Involving the 4.9 GHz Band
Since 2002, the Commission has allocated 50 megahertz of spectrum in the 4.9 GHz Band to be used for public safety.[3] That spectrum is utilized by public safety licensees for crucial, life-saving communications. Operations have traditionally been “limited to those in support of public safety operations and licenses for the band are exclusively available to public safety entities or those operating in support of public safety.”[4] However, in recent years, the Commission has taken several actions with respect to usage of the band.
In March 2018, the Commission released a Sixth Further Notice of Proposed Rulemaking related to the band,[5]which the Commission stated was aimed at “stimulat[ing] expanded use of and investment in the 4.9 GHz band.”[6]The Sixth Further Notice sought comment on a number of proposals, including a plan to aggregate certain channels within the band, as proposed by the National Public Safety Telecommunications Council.[7]
However, in October 2020, the Commission released a Sixth Report and Order and Seventh Further Notice of Proposed Rulemaking,[8] which constituted a complete change of course for the 4.9 GHz Band – and, indeed, a baffling departure from proposals contained in the Sixth Further Notice. The Sixth Report and Order set forth a completely new and untested approach, which would have allowed a single licensee in each state to lease the 4.9 GHz spectrum to third parties, permitting the licensee to determine, on a state-by-state basis, whether public safety agencies would even be permitted to continue to operate in the band. In short, the order “ceded total control of the 4.9 GHz Band to each of the states without any guidelines, rules, requirements, or guidance regarding either general management and use of the spectrum, or, more importantly, to ensure the protection of public safety’s use of the Band.”[9]
On December 29, 2020, three public safety organizations – the PSSA, the National Public Safety Telecommunications Council, and APCO International – filed petitions for reconsideration of the Sixth Report and Order. These petitions detailed the numerous deficiencies in the order, including that it failed to consider impacts on public safety, provide for public safety access to the band, and ensure nationwide interoperability for public safety communications. These organizations also asserted that the order was arbitrary and capricious and in violation of the Administrative Procedure Act since it was not based on the record of public comments compiled during the proceeding. The PSSA simultaneously filed a petition to stay the Sixth Report and Order,[10] which the Commission granted in May 2021.[11]
In October 2021, the Commission granted the public safety organizations’ Petitions for Reconsideration and initiated the Eighth Further Notice. In doing so, the Commission noted the flawed approach taken in the Sixth Report and Order:
Rather than risking a fragmented approach, which could undermine efforts to promote public safety use of the band, we delete rules which we previously stayed and which we now conclude, after review of the petitions for reconsideration, are not in the public interest.12
The PSSA appreciates the deletion of the rules set forth in the Sixth Report and Order. Those rules would have threatened the use of the 4.9 GHz Band for public safety.
The overarching goal of the Commission’s rules must be to protect and preserve the nationwide 4.9 GHz spectrum for public safety use, while maximizing utilization of the band. There are several key elements of a successful strategy that will enable the Commission to achieve this goal.
III. The Commission Must Utilize the 4.9 GHz Band to Achieve Key Public Safety Priorities
Public safety communications have always been a foundational component of the Commission’s mission. One of the Commission’s central purposes, as set forth in the Communications Act of 1934, as amended (the “Communications Act”), is to “promot[e] safety of life and property through the use of wire and radio communication.”[1]
The Commission has historically allocated spectrum to public safety operations in furtherance of this statutory objective, including the 4.9 GHz Band. While that band has been under-utilized in certain areas, the Commission can maximize the use of the band by public safety agencies by adopting several key changes to the rules governing the band. These changes can maximize use of the band without compromising public safety’s mission, while also reducing equipment costs and ushering in a new technological era for public safety communications, all of which are priorities expressed by the Commission in the Order and Eighth Further Notice.[1]
First, the Commission should provide public safety with priority use of the band while permitting secondary use of the spectrum’s excess capacity that is fully pre-emptible by public safety agencies and is compatible with public safety’s use of the band.[1] Second, the Commission should adopt rules that enable public safety licensees to utilize fifth-generation (“5G”) technologies in the band. Third, to achieve interoperability and enforce public safety priority and preemption rights in the band, the Commission should assign the 4.9 GHz band to a nationwide licensee and allow such licensee to designate a nationwide band manager.
A. The 4.9 GHz Band Should be Dedicated to Public Safety Use
First responders need sufficient spectrum to engage in life-saving communications. The 4.9 GHz Band is the only mid-band spectrum currently allocated to public safety. As such, the Commission correctly granted the PSSA Petition for Reconsideration because the 6th Report and Order would have jeopardized (if not terminated) public safety’s use of the band. The 4.9 GHz Band’s rules need to be strengthened to maximize use of the band, while ensuring that public safety’s use remains paramount.
Public safety must have priority use of the 4.9 GHz Band. While the PSSA supports secondary use of the band for capacity not being utilized by public safety, first responders need to be able to preempt such secondary use at any time. In addition, such secondary use should only be permitted if it does not cause interference to public safety’s use of the band, and if such interference does occur, the band manager should have authority to resolve the interference issues that impact public safety’s use of the band. The PSSA agrees with the Commission’s conclusion that “incumbent public safety licensees as well as future public safety users should be protected from harmful interference, both in the near term and on a forward-looking basis.”[15]Thus, any secondary use must be compatible with public safety’s operations in the band, and must be subject to rules that prohibit such secondary use from causing interference to public safety.
B. The 4.9 GHz Band Should Facilitate 5G Public Safety Services
As discussed previously, the 4.9 GHz Band is the only mid-band spectrum assigned to public safety. As such, it presents the best and, possibly, the only opportunity to deploy 5G services to public safety agencies utilizing the low-latency, high-throughput, and desirable propagation characteristics associated with mid-band spectrum. 5G has the potential to materially enhance the types of services first responders can access during emergencies, and the Commission needs to assign mid-band spectrum to public safety that facilitates 5G applications, which is why the 4.9 GHz Band rules are so critical.
The PSSA has previously noted that the 4.9 GHz Band is well-suited for emerging technologies, including 5G.[16] Indeed, future public safety communications are expected to center on 5G technologies, which will allow for a range of cutting edge uses from autonomous vehicles to mobile video surveillance for public safety users.
Since the launch of the Nationwide Public Safety Broadband Network in 2018, the nationwide availability of broadband services for public safety has resulted in a significant increase in the use of broadband applications by first responders. In particular, the use of broadband video has increased dramatically in all public safety disciplines to improve situational awareness along with supporting the effective transmission and receipt of mission-critical data. Whether telemedicine, air-to-ground information in firefighting, or surveillance in law enforcement, all of these broadband applications, as well as many other future applications such as augmented reality, require increased bandwidth to accommodate today’s demand and everincreasing use by public safety.
As public safety experiences the value of their nationwide broadband network, additional applications are being developed to increase the ability of public safety to deliver more effective solutions. One such area being developed for public safety is in-building coverage, which is well within the capability of the 4.9 GHz Band. This development, along with information from 911 PSAPs, CAD systems and other emerging applications that require high bandwidth and low latency, will require spectrum in the 4.9 GHz Band to operate effectively.
C. A Nationwide Strategy Is Necessary to Protect Public Safety’s Use of the Band
The PSSA agrees with the Commission that “a comprehensive and integrated approach that emphasizes public safety needs represents a superior path to unlocking the potential of the 4.9 GHz Band rather than pursuing a state-centered approach that could lead to a patchwork of incompatible uses.”[17] To effectuate such an approach, the Commission should assign a nationwide license in the 4.9 GHz Band. This license would facilitate nationwide network deployment, thereby accelerating the availability of the 4.9 GHz Band for 5G services and reducing equipment costs. Such an outcome is exactly what has occurred with respect to the Nationwide Public Safety Broadband Network, where widespread use of the network has reduced equipment costs. The PSSA agrees with the Commission that “a nationwide approach will promote a robust equipment market, drive down prices and costs, spur innovation, and increase the likelihood of interoperable communications and consistent interference protection.”[18]
In addition to vesting the rights to the spectrum for non-incumbent public safety users in a nationwide licensee, such licensee should have the authority to appoint a nationwide band manager. Coordination between the nationwide licensee and incumbents as well as between sublicensees will be critical to protecting public safety operations from interference and ensuring interoperability among public safety entities. A nationwide band manager would be the most efficient way to achieve these goals, and would be the best means of ensuring consistency throughout the country. In addition, a nationwide band manager would be able to effectuate public safety’s priority and preemption rights across all jurisdictions with respect to secondary users.
The licensee and band manager should develop a spectrum plan for the use of 5G across the contiguous 50 MHz of spectrum. The plan should provide for the continued support and protection of incumbent public safety users, the incorporation of 5G technologies, and the evaluation of potential integration with the Nationwide Public Safety Broadband Network.
While public safety should remain as the priority for the use of the 4.9 GHz Band, the PSSA appreciates the Commission’s goals to potentially allow non-public safety usage of the band in order to increase utilization, “provided that non-public safety use can occur without causing harmful interference to public safety operations in the band.”[19]Accordingly, the licensee and band manager should be responsible for developing a sustainable business model for usage of the band that would optimize such use while deriving sufficient revenue to cover the costs of management.
In any such model, the traditional public safety usage of the band must be preserved going forward. The licensee and band manager must ensure priority and preemption for public safety usage, excluding the operation of incumbent users. The Commission is well experienced in ensuring that spectrum is prioritized for public safety use while also providing for secondary usage by non-public safety entities.
In particular, the 700 MHz broadband spectrum is successfully used for both public safety and non-public safety purposes, and should be examined as a model for the 4.9 GHz Band. The licensee and band manager should adopt and incorporate rules for non-public safety secondary users that are modeled on existing Band 14 operations. Even assuming the 4.9 GHz Band is used by both public safety and non-public safety users, priority must be given to lifesaving public safety uses. As the Commission has noted, it is critical “that public safety will have immediate and reliable access to spectrum whenever and wherever it is required for missioncritical operations.”[20]
Thus, the licensee and band manager must be empowered to clear the spectrum of secondary users when public safety users need the band to respond to public safety incidents, whether on the local, regional, or even nationwide level. Additionally, the licensee and band manager should be required to protect the incumbent 4.9 GHz public safety users by allowing their continued use of existing deployments or by paying all costs to transition such users to equivalent or better service.
Some commenters have proposed that there should be unlicensed use of the 4.9 GHz Band. That suggestion is inappropriate for public safety spectrum because of the significant risk of interference. Unlicensed use of the 4.9 GHz Band raises a number of significant concerns, such how the source and location of interference would be identified, how long it would take to eliminate such interference, and the manner in which interference is removed. The potentially large number of unlicensed devices would also raise the radio-frequency noise floor in a manner that would degrade public safety’s signal.
Suggestions to adopt the Citizens Broadband Radio Service (“CBRS”) rules do not mitigate these concerns. The CBRS architecture is based upon unproven technology and would jeopardize the mission-critical level of reliability required to provide public safety services.
IV. The Commission Has Broad Authority to Establish a Nationwide Framework for the 4.9 GHz Band
As discussed in Section III, the most-effective way to maximize the utilization of the 4.9 GHz band is to create a nationwide license and authorize a nationwide band manager to implement and enforce priority and preemption rights for public safety, and to permit use of the band for 5G public safety services, while also allowing secondary use of the spectrum on a noninterfering and pre-emptible basis. The Commission clearly has the statutory authority to establish such a nationwide framework for the 4.9 GHz Band.
As noted above, one of the Commission’s core purposes is to “promot[e] safety of life and property.”[21]Indeed, the Commission has stated that one of its top priorities is to “protect public safety, and in particular, take steps to assist and safeguard the communications of our nation’s law enforcement officers and first responders.”[22]Additionally, under the Communications Act, the Commission has broad authority to license spectrum rights.24 Under that authority, the Commission determines the “terms, conditions, and periods of the license.”[23]The Commission has regularly exercised its broad authority by assigning spectrum licenses to be used for public safety purposes, thus fulfilling its obligation to protect public safety. The Commission has also exercised its authority to protect public safety communications by modifying such licenses once they have been assigned.
In 2004, for example, the Commission began a program to “address the ongoing and growing problem of interference to public safety communications in the 800 MHz band.”[24] In that proceeding, the Commission found that it could not “fail to take effective action”[25] to prevent interference in the 800 MHz band and protect public safety, and that the Commission had “the authority to modify licenses so as to locate licensees in other portions of the spectrum”[26]in order to protect public safety communications. In other words, the Commission’s authority with respect to the protection of public safety is extensive; it has the authority not only to assign spectrum licenses, but also to subsequently modify such licenses in order to protect public safety.
As the Commission itself notes, a “single, nationwide approach to the band” is the most effective way to “protect public safety operations” and maximize usage of the band.[27] As the PSSA has previously described, the vital mission of public safety does not stop at state borders. On the contrary, a nationwide approach is needed to ensure that public safety needs are met and that crucial communications can continue uninterrupted in emergencies, including across state boundaries. The United States has experienced too many natural and man-made disasters in the past several decades not to recognize that public safety agencies must be able to communicate with other jurisdictions.
V. Conclusion
The PSSA appreciates the opportunity to provide these comments to the Commission, and looks forward to working with the Commission as it finalizes rules to maximize use of the 4.9 GHz Band for public safety, and to usher in the use of mid-band spectrum for life-saving 5G public safety services.
-End- Footnotes can be viewed here
Comments Have Been Filed
Other interested parties have also filed initial comments and reply comments are due at the FCC no later than December 28, 2021. Based on the success of FirstNet and the demand for broadband services from the public-safety community, the PSSA and others are asking the FCC to issue a single FCC license for all 50 MHz of spectrum and to appoint a band manager. If the FCC concurs with these requests, the 4.9 -GHz band would be licensed to public safety and the band manager would work to ensure that as 5G is being built out on the band, authorized public-safety entities currently using this spectrum would be protected and could migrate to 5G. in the future.
How to File Comments
Between now and December 28, 2021, any individual or organization may file reply comments.
Obviously, you can file any comments you have. However, after you read the PSSA filing (Notice of Proposed Rulemaking WP Docket 07-100, see below), if you agree with the points the PSSA has made, we ask that you file reply comments supporting the PSSA filing. There are two types of reply comments and two different forms. One form is for a short set of comments and the other is for a longer set of comments.
Below are some screen shots of the FCC website and that should serve as a guide for anyone who has never filed comments with the FCC:
Until next week…
Andrew M. Seybold
©2021, Andrew Seybold, Inc.
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