Interoperability: Who Pays for D Block Radio Spectrum? Spectrum Analysis: What Now? Illustration by Tom McKeith

In spring 2008, the FCC sought bids on a portion of the radio spectrum known as the "D Block," which is intended to provide a nationwide platform for an interoperable public safety radio network that would implement the 9/11 Commission's recommendations.

The commission advocated construction of a nationwide radio network that would allow interoperable communication by first responders at the incident command level. The D Block auction was conceived to implement this recommendation. As originally contemplated, the auction winner would secure the right to share this designated public safety spectrum with commercial mobile telephone companies when the public safety radio spectrum wasn't being used by first responders.

Commercial companies would pay for the right to use this spectrum on a nonpriority, pre-emptive basis. Under this approach, commercial carriers could use the D Block spectrum unless it was required by first responders. If first responders needed the spectrum, private users would immediately be precluded.

The revenue would in turn help pay for the construction of a proposed nationwide public safety radio network. Unfortunately the D Block auction didn't generate the minimum required bids, and the network plans were left in limbo. Many observers felt the auction rules and underlying assumptions were flawed.

Rep. Edward Markey, D-Mass., noted in a March 18, 2008, press release that policymakers should review the auction's high reserve price. Markey also questioned the legal authority for the public-private partnership envisioned by the original D Block auction rules, the rigorous build-out requirements and the penalties associated with a failure to fulfill license conditions.

Thus before revisiting the D Block auction process, the FCC voted on May 14, 2008, to release a notice of proposed rulemaking (NPRM) to solicit comments on how the process could be improved. The notice appeared in the Federal Register on May 21, 2008. The FCC announced that written comments on the NPRM were due June 20, 2008, and reply comments were due July 7, 2008.

Overall the NPRM indicates the FCC is willing to reconsider the current public-private approach to D Block spectrum sharing and to adopt a different approach, provided a substitute funding mechanism can be found to support the project's construction.

 

New Funding Approaches

The NPRM welcomed comments on a variety of new approaches to the design, operation and funding of the proposed D Block public safety network. Among its more controversial financial suggestions, the FCC invited comments on whether the proposed public safety network should be financed by a system requiring mandatory financial commitments from local first-response agencies:

"Should we require the purchase of a minimum number of minutes, and if so, on whom and in what way would this obligation be imposed? We seek comment on whether any such obligation should be conditioned on the availability of government funding for access, for example, through interoperability grant money from the United States Department of Homeland Security, and whether we should require public safety users to pay for access with such money."

Requiring local governments to pay for a federally conceived program has long been disfavored by local public officials. Without federal funding, local governments are unlikely to support a mandatory local-funding obligation to build the network. Though this is a curious approach to financing, it indicates the FCC's willingness to consider many different funding mechanisms for the project.

It was surprising that the agency also invited comment on the desirability of imposing restrictions on traditional sources of network financing. The FCC said essentially that capital or operational funding mechanisms for the public safety broadband licensee involving private-equity firms or other commercial or financial entities would not be permitted.

Private funding has historically built every major public improvement - from highways and bridges to dams and water tunnels. To exclude traditional private-funding sources from financing a proposed nationwide public safety radio network would appear shortsighted

David L. Snyder  |  Contributing Writer
David L. Snyder is an attorney concentrating in the development of cellular, fiber-optic and public safety radio networks. He is a founding partner of Snyder & Snyder, a law firm based in Tarrytown, N.Y. For more information on the firm or to contact Snyder, please visit www.snyderlaw.net.