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Stymied Senate Bill Bodes Ill for Broadcast

The telecom bill working its way through Congress could be bad juju for broadcast--should it ever get through the Senate. Tucked within the 10 titles of the bill is legislation that would open up unused broadcast spectrum for unlicensed devices.

"It's disastrous," said Dennis Wallace of the engineering firm Meintel, Sgrignoli and Wallace. "But that's not unprecedented. When Congress gets into spectrum issues, it's disastrous."

MSW's clients include the NAB and the Association of Maximum Service TV, or MSTV. Recent tests conducted for the NAB suggested a majority of the unlicensed devices now used in the FM band--iPod and MP3 transmitters, for example--do not comply with FCC regulations.

"There's clearly a precedent that the enforcement bureau doesn't enforce the rules," Wallace said.

No members of the Senate Commerce Committee expressed opposition to the legislation, entitled the Wireless Innovation Networks, or WIN Act. In the space of three pages, WIN 1) opens up all unused broadcast channels, including first adjacents, for unlicensed devices; 2) and puts the burden of proving interference on individual broadcasters; and 3) offers no interference protection for translators and low power TV stations.

"The translator guys are very concerned because it would only protect channels within the station contour," Wallace said. "Some cable headends pick up channels from 100 miles away. It's not just a broadcaster problem."

MSTV chief David Donovan has been feverishly working Capitol Hill to get the language in the bill refined. As it stands, he said, the legislation has strayed radically from its original intent--to extend wireless broadband networks into underserved, mostly rural areas.

"This is not a rural broadband bill," Donovan said. "This allows all kinds of devices into the spectrum. Why should a $29 toy interfere with a $2,000 television set?"

Wallace found the whole rural WiFi rationale a bit dodgy because "it would cost an astronomical amount of money," he said.

However, Kevin Kahn of Intel told Congress that opening TV spectrum would make rural WiFi or WiMAX economically feasible.

"Given its propagation characteristics, the TV white spaces could be particularly useful in rural areas," he testified. "In contrast, we estimate that the 2.5 GHz frequencies would require approximately four times as many base stations to achieve equal geographic area coverage."

Both Kahn and Craig Mundie of Microsoft said using spectrum for last-mile connections to homes is cheaper than digging acres of trenches for wires. Both also noted that unlicensed devices designed for the TV spectrum will either detect unused channels or download the information from a database.

"The unlicensed devices can utilize various mechanisms--frequency coordination, professional installation, and output power control--to preclude any harmful interference to TV receivers," Kahn testified.

Thomas Lenard of the Progress and Freedom Foundation is one of few people asking why government has not considered auctioning white spaces.

"It is... extremely disappointing that Congress, supported by a large part of the technology industry that apparently believes it will sell more products in an unlicensed regime, is now proposing to take a big step backward by allocating a significant chunk of 'beachfront' spectrum--the TV broadcast spectrum white space--to 'unlicensed' uses. This is the polar opposite of a market-allocation regime," Lenard writes in "Why Don't We Just Auction the 'White Space'?"

The unlicensed device camp counters that foregoing auctions allows more entrepreneurial access to spectrum.

According to Mundie, "Because unlicensed bands are open to anyone who buys a compliant device at a retail store and attaches it to the network, the capital investment comes when it is needed and is fueled by individuals and businesses, not by larger network operators."

The pending legislation would open white spaces 270 days after passage, which at this point is iffy. Just hours after Senate Commerce Committee members passed the comprehensive telecom package 15-7, another lawmaker slapped the cuffs on it. Sen. Ron Wyden (D-Ore.) placed a hold on the bill because it doesn't prohibit broadband service providers from creating speed lanes, a concept otherwise known as "network neutrality."

Wyden's hold does not prevent the bill from coming to a floor vote, but it does mean it can't be passed without debate, which presents the opportunity for a filibuster. Sen. Ted Stevens (R-Alaska) and his allies would need to garner 60 votes to block a filibuster. Following the committee vote, Stevens said he would "find out what members would vote for it if something were taken out."

And there's plenty to choose from. The bill encompasses items ranging from phone subsidies for GIs to video franchise reform and broadcast flag implementation. A few of the amendments tacked on include:

• Opening more frequencies up for low power FM stations
• Holding network affiliates harmless for indecent content they hadn't seen or heard about
• Requiring the FCC to review broadband speeds
• Increasing fines for kiddie porn
• Prohibiting TV or radio ads on school buses
• Banning caller ID spoofers
• Creating an FCC office of consumer advocate with a whopping $200,000
• Making permanent the moratorium on taxing the Internet
• Requiring the FCC to run its new media ownership by Congress before setting them in stone