FCC Chairman Kevin Martin may be gone, but decisions under his watch continue to wind up in court.
The most recent was the unanimous decision to allow unlicensed devices like laptops and smart radios to share the spectrum also used by digital TV stations.
The Association for Maximum Service Television and the National Association of Broadcasters jointly filed a petition with the federal court of appeals for the D.C. Circuit, their preferred venue, to hold unlawful, vacate and set aside its decision allowing the devices, which broadcasters argue interferes with DTV transmissions, a fact they say FCC engineers themselves concluded.
Broadway theater producers and sports leagues, who employ wireless microphones that use the same swath of spectrum soon to be shared by unlicensed devices, were also expected to file their own petitions, or may have already done so, asking the court to throw out the FCC decision. They are expected to file in the Second Circuit Court of Appeals (New York).
NAB and MSTV told the court that the commission's decision "to allow unlicensed access to television spectrum will have a direct, adverse impact on NAB's and MSTV's members because it will allow harmful interference with the reception of their broadcast signals."
"One of the key issues here is that the data that was presented to the commission and reported in the engineering report clearly demonstrates that your spectrum-sensing will not protect over-the-air television reception," said MSTV President David Donovan.
The FCC promised in its order, which was adopted Nov. 14, to "take whatever actions may be necessary to avoid, and if necessary correct, any interference that may occur." Correcting the interference that may occur only after the fact is cold comfort to broadcasters whose future relies on the digital signals they are transitioning to next February, the same time the FCC will start allowing some types of unlicensed mobile devices to share the spectrum.
Among the safeguards the FCC is putting in place are allowing only devices that also have geolocation capability into the band at first, with a more rigorous testing process for devices that rely on remote sensing only.
The FCC said it will initially allow hybrid devices that use both geo-location and spectrum sensing, but will put numerous conditions on approval of devices that rely only on sensing technologies, including power limits, requiring extensive testing, a certification process, public comment on that process, and a separate FCC decision to approve proposed devices.
Broadcasters argue that without geo-location, the devices are loose cannons aimed at their business models.
Earlier this year, the FCC began to evangelize the use of white spaces for advanced wireless services, launching an international fellowship and training intiative.
"The Broadcasters continued opposition to this revolutionary technology is disappointing, but certainly not surprising. For decades, their policy has been to stifle innovation at all costs and ask questions later and this is no different," said the White Spaces Alliance in a statement.
The alliance members include Google, Microsoft, Motorola, Dell and other companies that pushed for allowing the unlicensed devices. "White Space technology works," said the Alliance. "[I]t is safe, and the Federal Communications Commission knows better than anyone the steps that must be taken to ensure that continues to be the case. A legal challenge to the process and the Commission's expertise in this area is just another in a long list of ill advised and futile delay tactics," said Jake Ward, a spokesperson for the alliance.