Turning back efforts by broadcasters to block the move, the FCC voted unanimously Tuesday, with one partial dissent, to approve the use of unlicensed mobile devices in the TV spectrum band, but under conditions billed as a “compromise.”
FCC Chairman Kevin Martin called it a significant victory for consumers. He said the new devices would not disrupt TV service or wireless microphone use, calling it a "cautious approach."
The FCC 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.
The commissioners said they trusted the FCC engineers had built in sufficient protections for TV signals and microphones in the testing and vetting process. Several joked that they would publish their home phone numbers just to make sure.
The approval had been expected, but that didn't make it any easier to take for broadcasters who have fought hard for years against the devices, then when the vote was scheduled for Nov. 4 tried to convince the FCC to put out for comment an engineering report summarizing tests the FCC concluded proved the devices were feasible. "Abandoning its own procedures, the FCC refused to place its Phase II Engineering Report out for public comment, despite the fact that the data are patently inconsistent with the purported conclusion," said the Association for Maximum Service Television in a statement reacting to the vote. "In addition, the FCC ignored more than 50 letters from Members of Congress, asking for public comment."
The FCC has been criticized for not giving the public sufficient opportunity to comment on its proposals before. But FCC Chairman Kevin Martin has pointed out that each of the tests that was summarized in the FCC report had been open to the public for inspection and comment. And the new regime requires further testing and public comment on remote sensing devices.
The FCC tests revealed that the devices had some problems sensing TV channels and interfered with TV signals in some instances, but the computer companies and other backing the devices said they were prototypes not finished products, and the FCC concluded the tests had shown "proof of concept," which essentially meant that devices could be designed to specs that would prevent undue interference.
Broadcasters were having none of it. "For the past several years, the FCC and the television industry have worked tirelessly to ensure that all Americans are able to receive over-the-air digital television. The incongruity between these DTV efforts and today’s decision is breathtaking," said MSTV. "Even the FCC cannot compromise the laws of physics. Assertions regarding no interference will not prevent damage in the real world."
The FCC started the meeting almost five hours late as commissioners continued to work on their statements, according to a source. Commissioner Michael Copps said he thought waiting in line with hundreds of people to vote Tuesday morning would be his longest wait to vote, but said he was wrong. But he also said he had always wanted to vote "early, late and often," which was the case Tuesday.
White spaces are where the broadband future will be writ, said Commissioner Jonathan Adelstein, who added that he supported the item with “great enthusiasm.”
Commissioner Deborah Taylor Tate tied her support to economic growth and the promise of using the white spaces for revolutionary changes in an evolutionary industry. Tate said the item was not perfect, saying the devices do hold a risk for interference, but that after four years of vetting by FCC engineers, their recommendation that the devices could be allowed played a "persuasive" role in her support.
Several of the commissioners addressed the criticism that the FCC's engineering report was not put out for public comment, with Tate saying she was proud of the openness of the process, and Copps said that "few other engineering analyses has been as lengthy and open."
Tate did say she thought the item did not sufficiently address the complaint process if devices to create interference. "It is imperative that TV broadcasters continue to be protected," she said. She also wanted to make sure cable was protected. She said the item protects cable by restricting the use of the devices in areas where cable headends are located.
Tate did dissent from including all of the TV channels 2-51 in the unlicensed regime, saying she was not sure it should have all been given up to unlicensed use.
Commissioner Robert McDowell called it both a small step and a giant leap, characterizing it as a prudent and cautious order that addresses the concerns of the item's critics.
The FCC also launched an inquiry into whether the power limits on the devices can be raised in rural areas for backhaul services. Commissioners McDowell and Tate said they wished the FCC had taken a bolder step toward allowing higher power in rural areas.