I’ve written quite a bit recently about the fight of would-be new entrant Lightsquared to build a wholesale LTE service over the objections of the GPS industry. For those looking for an incredibly lengthy and rather opinionated history and the issues, I recommend my Insanely Long Field Guide To Lightsquared v. the GPS Guys. For something much shorter and to the point, you can find my op ed piece on GigaOm here. The short version is that Lightsquared does, in fact, cause interference with GPS, even though it is operating under rules the FCC approved in 2003. This brings us to the question of who bears the cost of trying to make Lightsquared, or any new system, work.
Which brings us to the expansion of the Lightsquared fight into the Satellite band generally, and the curious partnership between CTIA and the GPS Council. Both filed petitions asking the FCC to reconsider this order moving toward greater flexibility for satellite providers trying to offer “ancillary terrestrial component” (ATC) based services (CTIA Petition here, GPS Council Petition here). Both object to a single, specific paragraph in the order in which the FCC (addessing the Lightsquared fight, which the GPS Council had raised in comments) stated that even existing incumbents have some responsibility to enable new services by making some adjustments to work more efficiently.
Needless to say, organizations that represent incumbents, like CTIA and the GPS Council, do not like this one bit. From their perspective, once you get a license, you should never, ever, have to change what you are doing to accommodate someone else — even if that is the right answer from a spectrum efficiency/public policy standpoint. (We will pause a moment to appreciate the irony of CTIA arguing that incumbents must be protected under all circumstances no matter how old and useless their technology while simultaneously pushing to eliminate broadcasting and take their spectrum on the grounds that broadcast television is old and useless.)
Spectrum Policy As “King of the Mountain”
The problem is a very familiar one in spectrum policy, which is why what happens in Lightsquared has huge implications for the “spectrum crunch” and spectrum policy generally. Traditionally, spectrum policy works like the kids game “king of the mountain.” Whoever gets in first wins. The first one assigned a license is “king of the mountain” and entitled to do whatever it wants. Anybody who comes along later has to somehow shoehorn themselves in, while protecting the people who got there before — who remain free to do whatever they want. The problem with the “king of the mountain” approach is that as technology gets better, the demand for wireless increases and the potential for innovative new services goes up. But these new service providers need to protect the previous “capture the flag” winners, many of who use older, less efficient technologies or technologies that are much less useful from a broader public policy perspective.
For example, we have a bunch of spectrum tied up in pager licenses. It is safe to say that while pagers are still useful, they have declined a great deal in use and importance. They sit in very valuable spectrum. Bluntly, from a public policy perspective, we would probably be better off converting the band into an unlicensed band or — if we must — auctioning it for a general purpose band which could include paging services, among other things. But because pagers got a slice of spectrum in the 1980s, they can continue to sit there and operate with fairly old technology. This not only ties up the pager bands, it limits everything around the pager bands, since any new use for pager-neighbors would have to protect pagers from any potential new interference.
I’m not trying to pick on pagers. It’s just one example of the same type of problem as GPS and Lightsquared. Sure, GPS is more useful than pagers. But the overall problem is the same. Are the GPS guys entitled to have the same interference protection now and forever, regardless of any improvements in technology or the growing demand for spectrum? Or should they be required to bear some of the cost and work cooperatively with new entrants like Lightsquared for the good of everyone?
The Rest Of The Satellite Band, And Beyond
Which brings us back to the FCC’s April Order on MSS/FSS ATC (I LV ACRNMS DNT U?). The Order dealt with whether to allow Mobile Satellite Service (MSS) and Fixed Satellite Service (FSS) to lease their ATC component under the FCC’s existing “secondary market rules.” Secondary market rules let licensees lease out their spectrum to others. When the FCC adopted the secondary market rules, it decided not to allow MSS/FSS licensees to lease out their ATC capacity. Now, to make more spectrum available for broadband, the FCC decided to reverse that decision. The GPS guys filed comments opposing the idea on the grounds that more intense terrestrial use of any satellite band (including, but not limited to, the L Band Lightsquared wants to use) could interfere with GPS services.
The FCC, addressng the GPS Council concerns, stated it would address interference issues that arise on a case by case basis. But while cautioning that MSS/FSS licensees. and anyone leasng their capacity, must abide by the license terms and avoid interfering with neighbors, the FCC also said this at Paragraph 28:
“We emphasize that responsibility for protecting services rests not only on new entrants but also on incumbent users themselves, who must use receivers that reasonably discriminate against reception of signals outside their allocated spectrum. In the case of GPS, we note that extensive terrestrial operations have been anticipated in the L-band for at least 8 years. We are, of course, committed to preventing harmful interference to GPS and we will look closely at additional measures that may be required to achieve efficient use of the spectrum, including the possibility of establishing receiver standards relative to the ability to reject interference from signals outside their allocated spectrum.” (emphasis added)
It is this first line that is the crux of the Lightsquared/GPS fight, the pivot for whether we get any further development of the satellite spectrum for terrestrial broadband, and, most importantly, whether we are finally going to move away from treating spectrum policy as a game of “King of the Mountain” and try to develop solutions that allow new entrants and new services. To be clear, what we are talking about is the idea that everyone has to cooperate to some degree to make spectrum work more efficiently for everyone. This doesn’t mean that new entrants automatically win any more than existing incumbents should automatically win. Indeed, the FCC has made clear it is still going to protect pre-existing services. The shift in approach, which is something spectrum wonks have been fighting for since the FCC’s first spectrum task force ten years ago, is the idea that when it logically makes sense to have a pre-exitsing user make some change to allow for a new entrant offering a valuable new service, the FCC ought to exercise its existing authority and make that happen, because if the FCC doesn’t, we are going to have a constant and growing drag on spectrum innovation that no “incentive auction” will ever cure.
And to emphasize again, this isn’t just Lightsquared. DISH has been running around buying up satellite capacity to combine with their 700 MHz licenses to get a terrestrial broadband play. The same logic from the GPS Council, that any increase in terrestrial activity in any MSS/FSS band potentially interferes with GPS, applies equally to DISH. That’s bad news for DISH (which would be out about $1.5 billion), but equally bad news for the rest of us who would benefit from seeing another wireless broadband provider out there. But even more so, it’s bad news for any future innovators trying to get access to spectrum, because this reenfoces the idea that no one can access spectrum and offer new sevices if they even might interefere with existing incumbents while existing incumbents have no responsibility to try to work with the new entrant.
Which is why CTIA, of all people, has joined with the GPS Council to protect the rights of incumbents everywhere. As I noted above, CTIA is the last organization you would expect to oppose the idea that well-established licensees that have been offering a free service since forever have a responsibility to be more efficient and work with others to make more spectrum available for things like wireless broadband. Nevertheless, the incumbent code appears to have trumped everything else. After all, it is one thing to say broadcasters should give up their licenses altogether, but something entirely different to say that AT&T or Verizon have a responsibility to work with potential competitors like Lightsquared or DISH to create more spectrum for new entrants by taking steps to make their systems more interference-resistant.
A Catastrophic Legislative Solution
For all these reasons, the drive by the GPS guys and the defense industry to push for a rider in an Agriculture bill or a Defense bill has potentially disastrous consequences for spectrum policy generally. The various versions of this floated around boil down to “GPS is the most wonderful thing in the world and the FCC shall never do anything that might require the GPS guys to get off their ass and make any change to their receivers ever.” It essentially gives the GPS industry veto power over any use of satellite ATC because, as the GPS Council told the FCC in the current rulemaking, any new terrestrial activity anywhere in the MSS/FSS band might increase interference risk to current GPS receivers. Given that neither the Agriculture Committee or Defense Committee particularly care about spectrum policy generally (unlike, say, the Commerce Committee), it is quite likely that either Committee could drop something giving the GPS industry a veto on any future ATC development.
Bluntly, we need more ATC. We need some way to use the MSS/FSS spectrum terrestrially if we want to see new spectrum for competitive uses and new services. If Congress passes an Ag bill or a Defense bill with a rider “solving” the interference problem by giving the GPS industry a permanent veto over any ATC development, we are in big trouble going forward. But more importantly, if Congress reaffirms the old concept that spectrum policy is a game of King of the Mountain, where whoever gets there first has no responsibility to build or adjust their systems to impove efficiency so we can “create” new spectrum for new entrants and new services, we may as well give up on any long-term solution to the “spectrum crisis.” There are only so many government bands that can be cleared an auctioned, and all of them have neighbors that will need protecting. If we don’t share the responsibility for efficiency, the least efficient system dictates the rules.