In response to an Executive Directive from former President Clinton, the Federal Communications Commission has commenced a rulemaking proceeding to allocate spectrum for "advanced" fixed and mobile wireless services in the United States. The spectrum under consideration may be used for, among other things, third generation or "3G" mobile wireless services.

The Commission's rulemaking actually has its roots in last year's World Radiotelecommunication Conference in Istanbul ("WRC-2000"). At that meeting, participating countries (including the United States) identified various spectrum bands that countries might use for 3G, including the 806-960, 1710-1885, and 2500-2690 MHz bands. The latter is currently used by Multipoint Distribution Service ("MDS") and Instructional Television Fixed Service ("ITFS") operators to provide commercial and educational fixed wireless broadband and multichannel video services in local markets across the country.

Significantly, WRC-2000 did not mandate that any country allocate any specific frequency band for 3G. As a result, the United States retains the flexibility to adopt a spectrum allocation plan for 3G that preserves spectrum for incumbents, including MDS/ITFS.

All providers of fixed and mobile services should be aware that the Commission's rulemaking is on a very fast track. The Clinton directive was issued on October 13, 2000. Just one month later, the Commission issued an Interim Report on the MDS/ITFS industry's current and planned usage of the 2500-2690 MHz band (the Department of Commerce, through the National Telecommunications and Information Administration ("NTIA"), issued a separate report on usage of the 1755-1850 MHz band). The Commission released its Notice of Proposed Rulemaking on January 5, 2001, and has committed to issue another report during March 2000 regarding the need for and potential costs of relocating MDS/ITFS incumbents out of the 2500-2690 MHz band.

A final Commission allocation of spectrum for all advanced wireless services, including 3G, is scheduled to be completed by July 31, 2001.

The Commission's Interim Report on MDS/ITFS includes a number of preliminary findings as to both MDS/ITFS and 3G systems could be accommodated in the 2500-2690 MHz band. The Commission found that any sharing of the band between the two services would be "extremely problematic." Also, the Commission evaluated three separate options for "segmenting" the 2500-2690 MHz band, all of which involved designating 90 MHz of spectrum for 3G and leaving 100 MHz for MDS/ITFS. The Commission noted various flaws in each proposal, and generally recognized the difficulties associated with having 3G systems and highly complex MDS/ITFS two-way systems occupy the same spectrum.

The Commission is also reviewing the extent to which spectrum outside of the 2500-2690 MHz band might be available for 3G service. For example, the Commission has previously proposed that the 2110-2150 MHz band be allocated for fixed and mobile use. The Commission now proposes to designate this spectrum for advanced fixed and mobile services, including 3G. Other candidate bands include, for example, 747-762 and 777-792 MHz bands (i.e., former TV channels 60-62 and 64-66), which are scheduled to be auctioned for fixed and mobile use this year; the 1710-1755 MHz band, which is current used by the federal government but is slated for reallocation to the private sector; and the 1755-1850 MHz band, which NTIA is studying for possible use by the private sector as well.

There are some indications in the Notice of Proposed Rulemaking that the Commission may not favor an exclusive spectrum allocation for 3G, and that instead it will consider permitting all of the spectrum at issue to be used for any kind of advanced wireless service, fixed or mobile. It is, however, not possible to predict at this time how the Commission will ultimately rule on this matter.

The comment and reply comment cycle for the Notice of Proposed Rule Making is scheduled to close on March 9. However, interested parties will still have an opportunity to submit their views after that date via the Commission's ex parte process.

PWB will continue to report on further developments in this proceeding as they occur.

About the Authors
Paul J. Sinderbrand and Robert D. Primosch are partners with the Washington, DC law firm Wilkinson Barker Knauer, LLP. They may be reached at 202-783-4141.