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House Democrat Questions FCC’s Plans for Unlicensed Spectrum

Disagreements are emerging between Congress and the Federal Communications Commission over how much spectrum should be set aside for unlicensed uses, such as Wi-Fi, as part of upcoming spectrum auctions.

The auction legislation passed by Congress earlier this year as part of the payroll tax cut extension (PL 112-96) nearly stalled over the issue of unlicensed spectrum. This free spectrum is used in technologies such as remote controls and wireless computer mice and could be deployed in the future for citywide wireless Internet access known as Super Wi-Fi.

Ultimately, California Reps. Anna G. Eshoo, a Democrat, and Darrell Issa, a Republican, reached a compromise that instructed the FCC to make space for unlicensed spectrum in “guard bands” — the unused areas around a licensed spectrum block that will be set aside to avoid interference among users.

But now Eshoo is suggesting that congressional deal is under threat as the FCC begins laying its plans for conducting the spectrum auctions. Eshoo wrote directly to FCC Commissioner Ajit Pai, a Republican, taking issue with his characterization of the law at an agency meeting last month where he suggested the statute is ambiguous on unlicensed spectrum.

“At several points, the Spectrum Act appears to contemplate that all reallocated spectrum will be licensed and auctioned. . . . On the other hand, the Spectrum Act also states that we may permit the use of such guard band for unlicensed use,” Pai said at the meeting. “If we must comply with the license and auction requirement, are there other means to encourage flexible, unlicensed use of the guard band?”

Eshoo, a member of the House Energy and Commerce Committee, wrote to Pai that the legislation was clear in its intent “to achieve a balanced spectrum policy recognizing that both licensed and unlicensed spectrum in the television band maximized the economic benefits of wireless broadband.”

“Contrary to your assertion, the legislation specifically gave the FCC the discretion to create guard bands out of spectrum that is relinquished by broadcasters, without any requirement to auction such guard bands,” she added in her letter last week.

A Pai spokesman responded that unlicensed spectrum is “an important component of a responsible spectrum strategy.”

All the FCC commissioners agree that unlicensed spectrum is a valuable resource for technologies as diverse as garage-door openers and Wi-Fi hot spots. But Republican members of the agency are urging an approach that makes as much spectrum available as possible for sale to wireless carriers such as AT&T and Verizon.

FCC Commissioner Robert McDowell, the senior Republican on the panel, said at the same meeting that the agency should consider whether the current allotment sizes of 5 MHz channel blocks “would result in a band plan that reserves too much spectrum for unlicensed uses contrary to what Congress intended.”

For his part, FCC Chairman Julius Genachowski, a Democrat, favors unlicensed bands, saying they drive economic growth and innovation. The divide suggests that much of what happens with unlicensed spectrum could depend on which party is in control of the White House after the November elections, should a vacancy come up at the FCC.

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