In December, the U.S. House Energy and Commerce Committee conducted an oversight hearing on the Federal Communication Commission’s (FCC) implementation of the Spectrum Act, and specifically the Commission’s work on the upcoming voluntary broadcast incentive auction. One of the most instructive moments of the hearing occurred during a series of questions posed to then-FCC Chairman Julius Genachowski by Rep. Ed Markey (MA-5). The congressman repeatedly asked Genachowski varying versions of the following questions:

So again, do you have a process that’s totally fair to the broadcasters and to the wireless industry that’s in place? Have you had them in your office simultaneously with their engineers to talk about the issue so that you can hear and your experts can hear the differences which they have?

. . . .

Do you ever have a meeting yourself with the engineers in the room with the other, you know, from all industries you’re sitting there with you? Are engineers hearing the disagreements?

The congressman was pushing the chairman to see if he and/or his staff were taking an active leadership role and directly engaging with industry to tackle this extremely complex proceeding. In effect, he was urging the FCC to drive consensus – to bring stakeholders together to see if there is a sweet spot where those most affected by the auction can find value and buy into the process. Thus, rather than passively perusing the filed comments in a back room and then eventually one day producing a final order seemingly out of thin air, he was suggesting that the FCC should be getting everyone in a room and driving towards a decision.

Had that happened yet at that point? No.

Has it happened in the more than six months since the Commission was urged to do so? No. (That is, unless we count a lone public workshop that was followed up in record time by a Public Notice unsurprisingly having little to do with what was actually achieved at the workshop).

In the absence of a staff process designed to drive consensus through openness, transparency and engagement, however, diverse industries and public interest groups have assembled on our own to work through the various challenges presented by the auction and attendant broadcaster repacking. These conversations have led to a great deal of progress, and even consensus on some major issues.

Have we found unanimity? Of course not. To be clear; reaching consensus is not the same thing as unanimity. Certainly everyone doesn’t have to agree for a general consensus to emerge. Our work has moved the ball far down the field on typically contentious issues. And we believe strongly that the Commission staff should have adopted, and should be adopting, a “get in the room together” approach so we can achieve an expeditious and successful conclusion to the pre-auction process.

Industry and public interest progress is nowhere more apparent than the general consensus that emerged concerning the defining feature of the band plan offered in the original incentive auction Notice of Proposed Rulemaking, which widely separated the wireless uplinks and downlinks and placed in between them high-powered broadcast operations. By sitting down together – outside the traditional and somewhat opaque FCC comment process – every company and organization invested in the outcome of the auction (except literally one) agreed that the proposal was an engineering nonstarter. This conclusion was facilitated by broadcast, licensed wireless and unlicensed wireless engineers conferring, sharing information and working towards what would best serve the public interest.

Last Friday, the FCC posted a blog entitled, “A Band Plan that Serves the Public Interest,” which along with some previous staff remarks, appears to imply in response to growing criticism over the staff’s proposed plans, that only the Commission, and not industry or the public interest community, has the public interest truly in mind. Nothing could be further from the truth, especially in this instance where what is at stake is delivering high quality broadcast and wireless signals to consumers. Indeed, a band plan in the public interest is most likely to result from a process that engages stakeholders in a meaningful fashion and thoroughly examines all of the thorny issues involved.

We do not appear, however, to be headed in that direction. Most notably, in its unyielding quest and determination for reclaiming variable amounts of spectrum in different markets, the inherent interference consequences of a variable approach are simply being ignored. The staff steadfastly refuses to study the issue with any rigor, model it or even ask a single question about it.

With respect to the challenges of variability, NAB has itself adopted a “getting everyone in the room” philosophy, even without the incentive auction staff leading the way. At stake is significant co- and adjacent channel interference that affects broadcast and wireless operations and arises under most variable band plans. The problem in the most basic terms is this: If Market A (e.g., New York) clears less spectrum than adjacent Market B (e.g., Philadelphia) and therefore Market A continues to have broadcast operations on channel X (e.g., channel 46) while Market B moves to wireless operations on that same channel, the wireless and broadcast operations on that shared channel will interfere with one another. There is no doubt this is a serious issue. And even though the Wireless Bureau dismissed the problem without any analysis (in a nonsensical footnote in its Public Notice), following the bureau’s Public Notice, AT&T, Verizon Wireless, Qualcomm, Ericsson and others have joined in to second the notion that further work on the subject is required.

We understand why variability could be of great benefit to the Commission’s auction designers at Stanford, but its potential positives do not necessitate that we should turn a blind eye to inconvenient engineering realities. As we’ve learned from a number of interference missteps in the not-so-distant past, including the frustration on the part of the wireless industry with the interference between channel 51 and the 700 MHz A block, even if you look the other way and pretend there’s nothing to see, interference will come back to bite you where it counts one way or another.

Even though we’ve identified a serious concern, we are not arguing that we are at the end of the variability road. We are merely stating that we’ve identified a potentially fundamental problem and, at the very least, this must be the beginning of the road. It’s not enough to say, as the blog post did, that “[b]y implementing a band plan that supports variation between markets, we would not be forced to limit the auction to the amount of spectrum available in the least cleared markets.” While true, that completely neglects the question precedent of whether, from an engineering perspective, variability is possible or even wise.

Once again, rather than cross our fingers and simply hope that we don’t end up on the wrong end of an uninformed and therefore arbitrary decision, we’ve actively engaged with stakeholders across industries on the issue. We’ve laid out everything we know about co- and adjacent channel interference, not only in filings at the FCC, but in data we’ve openly shared throughout the commercial wireless and unlicensed industries.  We have one aim: to figure this issue out, one way or another, so that the Commission can truly have a successful and timely auction.

We have also laid out an alternative plan should the interference inherent in variability not be worth its benefits. Our nationwide non-variable plan incorporates three relatively easy steps:

• After setting a spectrum acquisition target (e.g., 84 MHz), lay out the various nationwide repacking scenarios to determine in what areas the Commission must have volunteers and how many it needs.
• Determine how much revenue will likely be raised from a forward auction from the target amount of nationwide spectrum.
• Use those anticipated (and soon to be realized) funds to pay broadcasters in areas where the spectrum is actually needed, and repack broadcasters to the nationwide spectrum target in markets where no volunteers are needed.

This proposal helps the Commission maximize its use of the information it has up front – where it will, and will not, need participants under various scenarios – and then focus its financial incentive efforts on the areas where volunteers are truly needed. If this is done correctly, we believe the Commission can develop a great wireless band plan that clears the same robust amount in every market (international coordination notwithstanding), and leads to a harmonious balance between broadcasters and wireless operations in the new 600 MHz band. Furthermore, it eliminates the co- and adjacent channel interference threat that looms large under most variable scenarios.

We remain committed to driving a process that is best for the public interest and thankfully the Acting Chair and Commissioners have each made clear that they recognize the need for engagement and balance among industries. By engaging with all stakeholders, we’ve been able to find large areas of general consensus on a number of issues, which should help the Commission move expeditiously in this process. We will continue this push, all with the aim of creating a band plan and auction that serves free, over-the-air broadcast viewers as well as licensed and unlicensed consumers, otherwise known as the public interest.