HIGH-TECH FIRMS DEFEND FCC'S PART 15 REGULATORY SCHEME
Challenge by ARRL, National Assn. for Amateur Radio, that questions FCC’s jurisdiction to authorize unlicensed devices that can cause “significant interference” has sparked protests from Apple Computer, Cisco, Microsoft. Those companies, along with VoiceStream Wireless and Lucent spin- off Agere Systems, contend ARRL’s position would create “bureaucratic nightmare” by uprooting regulatory regime that has given rise to cordless phones, PCs, garage door openers and broadband wireless networks. Another group of high-tech companies, including ultra-wideband developer XtremeSpectrum, also filed opposition to ARRL petition Fri. In Feb., ARRL asked FCC to reconsider its order that would allow operation of unlicensed fixed, point-to-point transmitters at 24 GHz. It said Commission didn’t have jurisdiction under Communications Act to authorize unlicensed devices “which have significant potential for interference to licensed radio services.” Christopher Imlay, counsel for ARRL, said group rarely challenged FCC decisions in court, but it was likely to take its arguments to U.S. Appeals Court, D.C., if Commission rejected its petition.
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ARRL petition said FCC had expanded “the concept of unlicensed devices far beyond what its original concept allowed, and far beyond what is permissible pursuant to Section 301.” group argued that Sec. 302(a) of Communications Act gives FCC jurisdiction to limit interference potential of radio frequency devices “of all types at the manufacturing stage.” If agency can’t determine that unlicensed Part 15 devices that seek to operate in bands allocated to licensed radio services won’t cause harmful interference, devices have to be licensed under Sec. 301, ARRL said. Group had argued that Jan. FCC order on point-to- point transmitters in 24.00-24.25 GHz band would cause interference to terrestrial amateur weak-signal stations that also were active at 24 GHz. “The issue is not whether the Commission has jurisdiction to enact reasonable regulations concerning RF devices,” ARRL said. “Rather, it is whether or not a devices which has substantial interference potential to licensed radio services must be licensed in order to be operated.”
Opposition by Agere, Apple, Bluetooth Special Interest Group, Cisco, Microsoft and VoiceStream said ARRL filing “says, in effect, that the Commission has been acting unlawfully for the past 64 years… This challenge, if successful, would cause a major disruption to the United States economy and to the day-to-day lives of most Americans. It would also create a bureaucratic nightmare of unimaginable proportions.” Opposition argued that FCC had allowed use of spectrum without individual licenses since 1938 and industries had been built upon FCC’s conclusions “that it was not required to issue individual licenses for the use of the spectrum.” Implications of ARRL’s arguments are “staggering,” companies said, and every use of device that radiates RF energy, whether intentionally or unintentionally, would be required to obtain individual license from FCC. Companies argued Sec. 301 didn’t outline procedural requirements for making licensing determinations, so “the Commission is authorized to allow use of the spectrum without an individual license, precisely as provided for in Part 15 of its rules.” Congress passed Sec. 301 of Act to extend FCC authority to manufacturers of devices that were being used without individual authorization, opposition group said. “Section 302, therefore, can only be understood as congressional affirmation of Part 15 and the Commission’s decision to license the use of such devices by rule,” filing said.
IEEE 802, standard-setting group’s committee on local and metro area networks standards, also opposed ARRL petition. “The time for argument that the Commission lacks the authority to authorize Part 15 devices without the requirement for an individual license has long since passed,” IEEE 802 said. “The ARRL’s current challenges to the Commission’s authority in this regard amount to little more than a thinly veiled attempt to gain reconsideration of basic issues that were decided decades ago, without protest from the ARRL during the relevant proceedings.” Last week, opposition petition also was filed by XtremeSpectrum, Intersil, Symbol Technologies and Wireless Ethernet Compatibility Alliance on ARRL filing (CD June 3 p8).
“It has engendered a serious response because there is a great deal at stake in the unlicensed spectrum,” industry source said. “People can’t afford to take any attack on unlicensed spectrum lightly. There has been an enormous amount of investment in very advanced technology for use in this spectrum.” Numerous sources indicated FCC was expected to reiterate that it had authority to allow use of such spectrum by entities that were not licensed individually licensed.
AARL’s Imlay said: “We chose this proceeding because to us it illustrated better than any one in past history that the FCC has just pressed the concept of unlicensed devices too far.” Original allocation plan for such devices made “a certain amount of sense,” Imlay said. Amateur radio systems are adaptable and frequency agile, he said. “The proliferation of unlicensed Part 15 devices over the years and the increasing demand for them has kind of taken the concept away from what was originally intended,” he said. Problem is that original power level of Part 15 devices was “very, very low.” In recent years, he said FCC had taken position “that we can authorize whatever we want on an unlicensed basis” as long as there were rules that if there was harmful interference, device must cease operations. “That is an illusion,” Imlay said, because once devices are in field they're virtually impossible to pull back. He rejected arguments in opposition filings that ARRL was calling into question entire Part 15 regulatory system. While amateur radio devices have co-existed with Part 15 devices successfully in past, and continue to do so in some bands, “the FCC is gradually over time increasing field strength levels to the point where they have made some bands unusable.”
If ARRL doesn’t prevail in those arguments at Commission, Imlay said it was likely to protest to D.C. Circuit. “We believe that we have a pretty good argument on the basis of interpreting the statute,” he said.