Progeny Opponents Seek FCC Recon of Order Approving Launch of Service in M-LMS Band

The Part 15 Coalition, representing users and manufacturers of unlicensed devices that operate in the M-LMS band, said the FCC acted “with undue haste and without adequate notice and comment” in approving the order and should “reconsider” its determination that Progeny won’t cause unacceptable interference to unlicensed users of the band. “The FCC decision allowing Progeny to commence commercial operations represents an abandonment of the prior Commission policy, established in the mid-1990s, of seeking to balance the interests of unlicensed users and M-LMS licensees in the 902-928 MHz band,” the coalition said (http://bit.ly/1a8Gbuu). “It ignores the investments made, with unprecedented success, by many companies and consumers in reliance on the regulatory regime existing prior to the adoption of the Order, which is surprising given the Commission’s recent reemphasis on the importance of unlicensed spectrum.”

The 19-page submission by the Part 15 coalition offers a detailed analysis of how the group believes the FCC went wrong. The order provides no clarity on what constitutes “unacceptable levels” of interference, concludes wrongly that the tests of Progeny’s system were adequate and “repeatedly and erroneously focuses on the design of Progeny’s system, rather than the actual effects of that design on the interference environment to which unlicensed users will be exposed by Progeny’s system,” the coalition said. “The Commission has failed to make a reasoned, informed decision, as required by law.”

The Wireless Internet Service Providers Association also asked the FCC to reverse course. “The record in this proceeding shows that Progeny’s operations would cause a 50 percent reduction in throughput of fixed wireless broadband transmissions, with consequences that will essentially render the band useless for fixed wireless broadband services,” WISPA said (http://bit.ly/12frVuN). WISPA said the Progeny order violates the law. “Without any notice whatsoever, the Commission unlawfully adopted a new standard that appears to represent post hoc reasoning to achieve a desired result, but one that violates the Administrative Procedure Act (APA), contravenes the requirements of Section 90.353(d) and is unsupported by the public record,” WISPA said.

WISPA described the long history of unlicensed use of the band, starting in 1985 when the spectrum was set aside for unlicensed use under Part 15 of commission rules. “Since that time, unlicensed services have flourished in the band, which is now shared by millions of consumer and industrial devices, including devices for fixed broadband access, ‘life-safety’ communications, medical applications, smart meters, supervisory control and data acquisition (SCADA) and everyday consumer devices such as baby monitors, home telephone systems and wireless headsets,” WISPA said. Then, in 1995 the FCC established the M-LMS, but with the condition that licensees “demonstrate through actual field tests that their systems do not cause unacceptable levels of interference to 47 CFR part 15 devices.”

Progeny did first unilateral tests of its service and then, following directions from the FCC, tests with WISPA and other parties of whether the Progeny service would interfere with other users of the spectrum. The WISPA tests showed that Progeny “would cause uni-directional throughput reductions of approximately 50 percent on the equipment most commonly deployed by WISPs,” WISPA said. But the FCC moved forward anyway with an order.

"Focusing on the fact that Progeny conducted some field testing and that its system was supposedly designed to ‘minimize’ interference, the Commission, as if grasping for straws, offered several potential definitions of ‘unacceptable levels of interference,’ one of which existed before the Commission adopted the Order and others that appear to have been made up on the spot,” WISPA said. “To make matters worse, in concluding that Progeny met its burden, the Commission (a) failed to discuss the test results and the record showing the adverse consequences that will result, (b) erroneously found that WISPs could modify equipment and operating parameters to mitigate the effects of interference, and (c) relied on conjecture in concluding that the parties could work together to ensure co-existence."

The Edison Electric Institute, the American Public Power Association, the National Rural Electric Cooperative Association and the Utilities Telecom Council also filed a recon petition. “The Utility Trade Associations’ members make extensive use of communications as providers of critical utility services, including as owners and operators of private communications systems in the 902-928 MHz band that are placed directly at risk by the Commission’s Order in this proceeding,” the electricity industry associations said (http://bit.ly/1bl897Q). “Utilities, in fact, are among this nation’s largest users of communications networks and services, which are vital to utilities’ core mission of safely and reliably delivering essential utility services to the nation’s residential and business consumers."

Progeny CEO Gary Parsons said in an emailed statement he’s confident the commission’s decision will be upheld on reconsideration. “The FCC undertook a very thoughtful and comprehensive review of Progeny’s proposed operations in the 902-928 MHz band, including closely examining the results of three different sets of joint tests that were undertaken cooperatively with several of the petitioning parties,” Parsons said. “The Commission also adhered to its long established legal standard that M-LMS licensees must not cause unacceptable levels of interference to Part 15 devices and appropriately concluded that the extensive test results affirmed that Progeny’s network satisfies this requirement. ... Progeny is therefore continuing with the expansion of its position location network in major urban markets in the United States."