Clyburn to Call in Small, Large Carriers to Discuss 700 MHz Interoperability Mandate
Acting FCC Chairwoman Mignon Clyburn decided not to circulate an order mandating 700 MHz interoperability for a vote at the Aug. 9 commission meeting, said industry and FCC officials Friday. Small carriers pressing for action had hoped it would come in August. Clyburn has long made clear she has strong concerns that small carriers have access to a wide variety of devices as they roll out service in the 700 MHz spectrum that many bought in the 2008 auction. Instead, Clyburn is expected to ask carriers large and small to meet again to try to develop an industry solution, officials said.
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Clyburn discussed interoperability without being prompted in brief comments during a press conference after Friday’s FCC meeting. She said interoperability is a “key priority” and her staff is scheduling meetings with stakeholders right this moment. “My office continues to be engaged with all stakeholders,” she said. “Whether there is an industry solution or a regulatory solution, there will be a solution."
AT&T has long opposed a mandate, saying the FCC should instead refocus on eliminating the interference problems that make the A-block spectrum purchased by small carriers less usable than other 700 MHz spectrum (http://bit.ly/11RqwQh). AT&T has also questioned the legality of a mandate. An AT&T spokesman referred us to its latest ex parte filing.
"I was very pleased to hear that the chairwoman is committed to finding a solution on the interoperability issue,” Competitive Carriers Association President Steve Berry told us Friday. “We'll look forward to participating in the effort that she may lead to find a solution. We've waited over four years to bring mobile broadband, high-speed broadband, to consumers in rural regional markets and we greatly appreciate her involvement and guidance.”
But Public Knowledge Senior Vice President Harold Feld said Clyburn should instead have circulated an order. “This is disappointing,” Feld said. “It is not clear what would change the current status quo, other than an FCC order. There is no technical or business change on the horizon that would push AT&T or Verizon to a voluntary solution. Frankly, the best way to push AT&T and Verizon is to put an order on circulation. An order on circulation can be pulled or amended. But not circulating an order gives you zero leverage.”
"To the extent Chairwoman Clyburn’s comments indicate that she does not want to rush to implement a regulatory solution, this is a positive sign and I give her credit for it,” said Free State Foundation President Randolph May. “A solution that is worked out in the marketplace through negotiations is preferable to an FCC mandate.”
Stifel Nicolaus said in a research note Clyburn’s comments seem to show “renewed resolve” to solve the 700 MHz interoperability issue. Stifel said Commissioner Jessica Rosenworcel has indicated she would support a mandate (CD June 28 p12). “We believe the chairwoman’s vow puts new pressure on AT&T to craft some sort of industry interoperability agreement with rivals in the lower 700 MHz band,” Stifel said. “The competitors for years have sought FCC intervention, complaining that the Bells used their size and standard-setting influence to create different band classes in the lower 700 MHz band, thwarting device interoperability across the spectrum frequencies, which the competitors say raises their equipment costs and hinders roaming."
Pressure on the FCC to act, if anything, intensified in recent days. Berry and others from CCA met with FCC General Counsel Sean Lev and other FCC officials Tuesday to press for action, according to an ex parte filing. “With respect to the Commission’s statutory authority, we noted that CCA joins in the recent ex parte letter of Vulcan Wireless discussing the Commission’s broad power to modify 700 MHz licenses pursuant to Section 316 of the Act. We further explained that the Commission can ‘prescribe the nature of the service to be rendered by’ Lower 700 MHz licensees pursuant to Section 303(b) by requiring that they provide service in a manner that ensures interoperability across the A, B, and C Blocks,” said a CCA filing on the meeting (http://bit.ly/12T82ZB). “The [U.S. Court of Appeals for the] D.C. Circuit’s decision upholding the Commission’s data roaming requirement, Cellco Partnership v. FCC ... broadly construed the Commission’s authority under Section 303(b), rejecting the cramped interpretation that Verizon and AT&T had advanced before the Commission. That holding was consistent with longstanding precedent recognizing that Title III confers ‘enormous discretion’ on the Commission to promulgate licensee obligations that the agency determines will serve the public interest."
CCA said that “while AT&T has argued that restoring interoperability would ‘dictate only the design of wireless apparatus,’ that overlooks the fact that an interoperability mandate would specify the obligations of licensees without dictating any particular equipment configuration. We noted at the meeting that it is routine for the Commission’s imposition of obligations on regulated service providers to have incidental impacts on equipment design and on third parties.”