Let's start with the good news: the Federal Communications Commission (FCC) may soon adopt new rules that promote more efficient usage of unlicensed spectrum and greater product diversification within the unlicensed industry. Further down the road, the FCC may increase the amount of spectrum available to unlicensed providers in the 5 GHz band. And, a recent Supreme Court decision may make it easier for unlicensed providers to gain fair access to poles and conduits.

Now the bad: representatives of the satellite radio industry have asked the FCC to adopt rules that may impose substantial operating restrictions on unlicensed providers.

Here are the details:

New Technical Rules for Spread Spectrum Systems

Previously, the FCC's Rules limited frequency hopping spread spectrum systems in the 2.4 GHz band (2400-2483.5 MHz) to 1 watt output power. The Rules required such systems to use a minimum of 75 nonoverlapping hopping channels having a 20 dB bandwidth no greater than 1 MHz. To permit systems in the 2.4 GHz band to deliver higher data speeds to their customers, the FCC amended these rules in August 2000.

As a result, frequency hopping spread spectrum systems in the 2.4 GHz band are now permitted to use bandwidths between 1 MHz and 5 MHz at a reduced power of 125 mW. Systems using bandwidths greater than 1 MHz and less than or equal to 5 MHz may use as few as 15 nonoverlapping channels, provided that the total span of the hopping channels is at least 75 MHz. Systems using bandwidths of less than 1 MHz must use at least 75 nonoverlapping hopping frequencies.

The FCC is on the verge of amending these rules once again. Perhaps within a matter of weeks, the FCC may permit frequency hopping spread spectrum systems to use as few as 15 hops, regardless of the bandwidth utilized, provided that such systems operate with output power of no greater than 125 mW and use adaptive hopping techniques to avoid harmful interference to other users.

The FCC may also soon amend its rules to permit unlicensed operation of alternative digital systems in the 2.4 GHz band. Such systems have technical characteristics similar to spread spectrum systems, but do not comply with all elements of the FCC's current definition of a "spread spectrum system." In a related proposal, the FCC is considering whether to permit alternative digital systems to operate at the same power levels as direct sequence spread spectrum systems, i.e., 1 watt maximum output power with power spectral density not exceeding 8 dBm in any 3 kHz band.

The FCC may also eliminate its requirement that direct sequence systems have a processing gain of at least 10 dB. There is disagreement within the unlicensed industry over whether it is truly possible to measure processing gain accurately. Accordingly, the FCC proposes to address the problem by eliminating the processing gain requirement entirely.

Finally, in a rulemaking released late last year, the FCC is proposing to eliminate or modify a variety of miscellaneous unlicensed rules that may no longer be necessary in today's market environment. Among other things, the FCC may (1) modify limits and restrictions on emissions from certain unlicensed devices above 2 GHz, (2) eliminate the prohibition on data transmissions and make other changes to its rules governing unlicensed remote control devices, and (3) simplify the labeling requirement for manufacturer self-authorized equipment.

New Spectrum Allocation for Unlicensed Operations at 5 GHz

The Wireless Ethernet Compatibility Alliance (WECA) has petitioned the FCC to make an additional 300 MHz of spectrum available in the 5 GHz band for use by radio local area network ("RLAN") and other unlicensed devices. Presently, RLAN devices are permitted to operate in the 300 MHz of spectrum in the band 5.15-5.35 GHz and 5.725-5.825 GHz bands. The new spectrum would be located at 5.470-5.725 GHz and would be subject to existing FCC rules that apply to operation at 5.25-5.35 GHz.

Comments on the WECA Petition were due on February 28, 2002; reply comments are due on March 15, 2002. If the FCC believes the WECA petition is meritorious, it will probably propose new rules to effectuate the new spectrum allocation later this year. The unlicensed industry will have a further opportunity to comment on the WECA proposal at that time.

Access to Poles and Conduit

Under Section 224 of the Communications Act, utilities and local exchange carriers must provide telecommunications providers with nondiscriminatory access to "poles, ducts, conduits or rights-of-way" that they own or control. The FCC has ruled that the term "rights-of-way" applies to both underground and "in-building" conduit.

In a recent decision, the United States Supreme Court ruled that Section 224's nondiscrimination provisions protect providers of wireless services. Accordingly, wireless providers (unlicensed or otherwise) may now seek protection under federal law if they encounter discriminatory rates or other onerous terms and conditions when seeking access to poles or conduits.

Satellite Radio Petition To Limit Unlicensed Operations

On January 23, 2002, Sirius Satellite Radio petitioned the FCC to tighten the out-of-band (OOB) emission limits that apply to unlicensed devices. Although the petition appears to be targeted at spread spectrum devices in the 2.4 GHz band, the Sirius proposal may also apply to any unlicensed device that emits in the spectrum where Sirius operates (2320-2345 MHz).

The OOB reduction proposed by Sirius is significant - the maximum permissible aggregate free space field strength of co-polarized OOB emissions in the 2320-2345 MHz band would be reduced to 8.6 uV/m at 3 meters (18.7 dBuV/m), which is substantially less than what is now permitted under the FCC's rules.

No comment date has been set for the Sirius petition as of yet. Interested parties should monitor this proceeding through their Washington representatives if they are not doing so already.

In sum, the unlicensed industry has a full plate of regulatory items for 2002, all of which merit participation by unlicensed providers and equipment suppliers. Broadband Properties will continue to report on developments in these and other relevant FCC proceedings as they occur.

About the Author
Robert D. Primosch is a Partner in the Washington, D.C. law firm of Wilkinson Barker Knauer, LLP, which specializes in advising the wireless industry on regulatory and transactional matters. Mr. Primosch can be reached at (202) 383-3362 or via e-mail at rprimosch@wbklaw.com.