WHITE OPEN SPACES: UNLICENSED
ACCESS TO UNUSED TELEVISION
SPECTRUM WILL PROVIDE AN
UNPRECEDENTED LEVEL OF
INTERCONNECTIVITY
Kathryn A. Watson*
I.
INTRODUCTION
Before high-definition and hundreds of channels, there once existed a
world in which the knob on the front of the television switched between local
broadcast channels. In between episodes of M*A*S*H and the local news were
―snowy‖ channels that disrupted the steady flow of channel surfing. Those
loud, fuzzy channels have the potential to provide revolutionary new wireless
services and extraordinary technological advances in the field of wireless
technology.1
Recent developments surrounding the broadcast television spectrum have
opened up a world of innovation, competition, and debate. On November 4,
2008, the Federal Communications Commission (―FCC‖) adopted a Second
Report and Order that establishes new rules for allowing the operation of new,
sophisticated wireless devices in the broadcast television spectrum at locations
where that spectrum is not being used by licensed services. 2 These unused
portions of the television spectrum are known as television ―white spaces‖.3
The new regulatory rules adopted by the FCC in November 2008 permit
the operation of unlicensed devices in the television white spaces and allow for
*
J.D., University of Illinois College of Law, 2010; B.A. Political Science, University of Illinois at
Urbana-Champaign, 2005. I would like to extend the utmost gratitude to William Breedlove and the other
editors of the Journal of Law, Technology & Policy for their efforts and understanding in seeing this Note
through to publication. I would also like to thank my husband, Brian, for his unconditional support and
continuous encouragement.
1. FCC Approves Largest Ever Expansion of Internet Access, CHARLESTON GAZETTE AND DAILY
MAIL, Nov. 5, 2008, at 2C, available at 2008 WLNR 21260730.
2. FED. COMM. COMMISSION, ET DOCKET NO. 08-260, SECOND REPORT AND ORDER AND
MEMORANDUM OPINION AND ORDER, (2008) [hereinafter SECOND REPORT AND ORDER]; Press Release,
Federal Communications Commission, FCC Adopts Rules for Unlicensed Use of Television White Spaces
(Nov. 4, 2008), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-286566A1.pdf
[hereinafter Press Release 1].
3. Press Release 1, supra note 2 at 1.
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―new and innovative types of unlicensed devices in the unused spectrum to
provide broadband data and other services for consumer and businesses.‖4 One
of the primary benefits of allowing devices to use unlicensed white spaces is to
improve Internet access throughout the country, particularly rural areas where
high-speed internet access is currently expensive or unavailable.5
However, the possibility of interference with incumbent users of the
spectrum has sparked a debate of whether the FCC‘s decision was a proper
one. 6 Television broadcasters, entertainers, professional sports leagues, and
some congressional leaders protested the FCC‘s decision, claiming that
allowing unlicensed devises to operate in white spaces will potentially disrupt
their use of the spectrum. 7 Opposition websites, public comments and even
lawsuits have been advanced by these opponents in an attempt to influence the
FCC and prohibit the use of the spectrum in this manner.8
The FCC and commentators have addressed some of the issues raised and
claim that FCC-approved devices can operate on an unlicensed basis within the
white spaces without unduly interfering with other signals on the spectrum.9
This has sparked a wave of innovation and invention by companies such as
Google and Microsoft, who are developing devices that aim to operate within
the realm of the FCC‘s new rules. These devices are being designed to utilize
the white space spectrum to provide high-speed broadband internet, as well as
radio access, throughout the United States.10
The issue remains, however, of what will be done about interference.
Questions regarding allowable thresholds of interference, monitoring
responsibilities and remedial measures that will be taken often surround the
debate over the FCC‘s decision. These concerns need to be adequately
4. Id.
5. Wireless Future Program, New Foundation America, http://www.newamerica.net/programs/
wireless_future (last visited Feb. 9, 2009).
6. Susan P. Crawford, The Radio and the Internet, 23 BERKELEY TECH. L.J. 933, 1003 (2008). See
Press Release 1, supra note 3 at 2 (―The rules represent a careful first step to permit the operation of
unlicensed devices in the TV white spaces and include numerous safeguards to protect incumbent services
against harmful interference.‖).
7. Marguerite Reardon, Debate to Delay „White Space‟ Vote Heats Up, CNET NEWS, Oct. 24, 2008,
http://news.cnet.com/8301-1035_3-10075172-94.html.
8. See, e.g. InterferenceZones.com, Prohibit the Use of Unlicensed Wireless Devices in White Spaces,
http://www.interferencezones.com (last visited Dec. 21, 2009) (an opposition website designed to convince the
public that that FCC‘s decision to allow unlicensed white spaces is harmful); see also Sasha D. Meinrath &
Michael Calabrese, ―White Space Devices” & The Myths of Harmful Interference, 11 N.Y.U.J. LEGIS. & PUB.
POL‘Y 495, 505 (2008) (discussing the ―misinformation campaign‖ launched by opponents in an effort to halt
the FCC‘s decision and dispelling the ―myths‖ propagated about white space technologies.).
9. Press Release 1 supra note 2; see generally SECOND REPORT AND ORDER, supra note 2 (analyzing
the comments received surrounding the white space debate and discussing how the concerns of the opposition
regarding interference have been addressed in the new regulatory scheme).
10. See Erica Naone, Wi-Fi via White Spaces, TECHNOLOGY REVIEW Aug. 19, 2009,
http://www.technologyreview.com/communications/23271/?a=f (discussing how companies are beginning to
take advantage of the FCC‘s white space decision by creating new devices that will transmit internet over
white spaces); see also TV White Space Position Paper, Motorola, http://www.motorola.com/staticfiles/
Business/Product%20Lines/Motowi4/wi4%20Fixed/Point-to-Point%20Mulitpoint/Canopy/_ChannelDetails/
_Documents/_Static%20files/WB_TV%20White%20Space%20Position%20Paper_V2_11.08.pdf (last visited
Jan. 20, 2010) (noting that ―[t]he FCC has decided to support the use of TV White Space as a means to provide
broadband connectivity to the rural areas in the United States by providing unlicensed access to the unused
bands within TV White Space spectrum.‖).
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addressed in order for the goals of the FCC‘s decision, namely ubiquitous
wireless accessibility and unlicensed access to this portion of the spectrum, to
be fully maximized. The revolutionary new model adopted by the FCC, which
allows for dynamic sharing of the licensed spectrum with unlicensed devices,
can potentially result in substantial social gains in terms of technological
advancement, global competitiveness, and business productivity. It is
imperative that the FCC‘s regulatory framework is designed and implemented
in a manner that will ensure negative consequences are minimized and the
economic and societal impacts are fully recognized.
This Note explores the FCC‘s regulations regarding unlicensed white
space devices, as well as the effect the FCC‘s decision will have on incumbent
licensees of the television spectrum. Part II of this Note discusses the broadcast
television spectrum and how the FCC allocates use within the spectrum. Part II
also discusses the FCC‘s digital transition initiative, originally scheduled to
take place in February of 2009, and the effect this plan has had and will have
on the broadcast spectrum. In addition, Part II outlines the conceptual use of
white spaces and how the opposition has responded. Part III discusses the new
FCC rules regarding white spaces, and evaluates the basic framework under
which white space devices must operate. Moreover, Part III analyzes how the
rules respond to interference concerns raised by the opposition. Part IV
outlines the benefits the FCC‘s decision will have and proposes legal and
regulatory safeguards that should be adopted which will allow this new area of
wireless broadband technology to be utilized for the good of society as a
whole. Finally, Part V offers concluding thoughts on the future of unlicensed
white space devices operating on the dynamically changing spectrum and on
how America should anticipate a level of interconnectivity never before
imagined.
II. BACKGROUND
―White spaces are the blank pages on which we‘ll write our broadband
future.‖ 11
This quote from FCC Commissioner Jonathan Adelstein
summarizes the effect that the FCC‘s decision will have on the advancement of
wireless technology. The last decade has seen a massive transformation in the
way television and Internet technologies affect our lives. The use of unlicensed
white spaces will tap into these technologies and advance towards ―solving the
broadband deficit‖ in many areas of the country by wirelessly connecting the
entire nation.12
This section provides brief background information on how the FCC
currently allocates television channels along the broadcast spectrum and how
this has changed upon completion of the Digital Television Transition,
allowing for white spaces to be more prevalent and utilized. This section also
provides a look at the road leading up to the FCC‘s white space decision and
11. Chloe Albanesius, FCC Approves White Spaces on Conditional Basis, PCMAG, Nov. 4, 2008,
http://www.pcmag.com/article2/ 0,2817,2333937,00.asp.
12. Id.
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how the rules were promulgated around much debate and controversy.
A.
The Television Spectrum
On the electromagnetic spectrum, radio waves occur on the radio
frequency portion of the spectrum and are located within the range of 3 Hz to
300 GHz. 13 Radio communications are transmitted using either digital or
analog technology. 14 Analog broadcast television stations use Very High
Frequency (―VHF‖) and Ultra High Frequency (―UHF‖) bands and are located
within the radio waves frequency from 54 MHz to 890 MHz, channels 2 69.15
During the early allocation of television channels, the government created
empty spaces between licensed television channels to guard against stray
signals and other broadcast interference. 16 For example, if channel 3 was
licensed, channels 2 and 4 would be vacant in that area, and channel 3 would
be vacant in any neighboring viewing area.17 This led to a very inefficient use
of the television spectrum and technological advances have made the
inefficient buffering system obsolete.18
The Digital Transition and Public Safety Act of 2005, enacted on October
20, 2005, recognized the inefficient use of the television spectrum and
mandated the transition from analog to digital television broadcasting. 19 On
February 17, 2009, some full-power television stations in the United States
broadcasting on analog airwaves began transitioning to an all-digital
broadcasting scheme. 20 At midnight on June 12, 2009, 21 all full-power
13. All radiation is measured in cycles per second, or hertz. One thousand cycles per second equals one
kilocycle per second (1 kHz); 1,000 kilocycles per second equals one Megacycle per second (1 MHz); and
1,000 Megacycles per second equals one Gigacycle per second (1 GHz). See Charles W. Logan, The Changing
Law of Spectrum: How Should Spectrum Regulation Respond to the Convergence of Wireless Services?, PLI,
Order No. G0-00VN, 311 (May 1, 2002) (discussing the concepts of ―spectrum,‖ ―hertz,‖ and ―radio waves‖).
The frequencies of electromagnetic radiation that comprise the radio spectrum span a wide range, from 10 kHz
to 3,000 GHz. Id.
14. Analog transmission is a continuous signal that requires encoding the complete picture of each
frame transmitted. Digital system encodes the information in binary digitized form and requires only that the
information differ from one frame to the next. Id. at 312.
15. See Electromagnetic Spectrum, http://hyperphysics.phy-astr.gsu.edu/hbase/ems2.html (last visited
Mar. 13, 2009) (explaining the frequencies and wavelengths on the electromagnetic spectrum); see also United
States Frequency Allocations: The Radio Spectrum, http://www.ntia.doc.gov/osmhome/allochrt.pdf (last
visited Mar. 11, 2009) (providing a graphic explanation of how frequency is allocated on the electromagnetic
spectrum in the United States).
16. See White Spaces: Bringing the Internet to Everyone, http://www.freepress.net/whitespaces (last
visited Mar. 11, 2009) (discussing how the government allocated television channels in the early history of
television).
17. Meinrath, supra note 8, at 497.
18. White Spaces, supra note 16.
19. See Title III of the Deficit Reduction Act of 2005, Pub. L. No.109-171 (2006) (mandating the
transition to digital television broadcasting).
20. The Digital TV Transition, http://www.dtv.gov/whatisdtv.html (last visited Mar. 11, 2009).
21. Id. The original DTV transition date was February 17, 2009. Id. However, Congress passed the DTV
Delay Act, Senate Bill 328, in February 2009, to give U.S. households additional time to prepare for the digital
transition switch. EZ Digital TV Update, http://www.ezdigitaltv.com/EZ_Digital_TV_News-EZ-Newsletter14.html (last visited Mar. 16, 2010). On February 17, 2009, some full-power broadcast television stations in
the United States were allowed to stop broadcasting on analog airwaves and begin broadcasting only in digital.
The Digital TV Transition, http://www.dtv.gov/consumercorner.html. (last visited Mar. 16, 2010). The
remaining stations may stop broadcasting analog sometime between April 16, 2009 and June 12, 2009. Id.
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television stations that had not already done so were required to switch from
analog television broadcasting to 100% digital broadcasting. 22 This FCCguided initiative, known as the ―Digital Television (―DTV‖) Transition,‖ was
enacted to make more efficient use of the spectrum, provide more
programming options for consumers and free up airwaves for use by
emergency responders.23
As a result of the DTV Transition, specific portions of the broadcast
television spectrum, ranging between 76 MHz and 698 MHz, channels 2 51,
have become all-digital television broadcasting stations.24 However, very few
of the television markets throughout the United States use all 49 channels.25
Half of those channels remain unexploited in some cities, especially in rural
areas with fewer broadcasters.26
B.
Tapping into Unlicensed Frequencies
Recognizing the growth and dependency on wireless internet services in
residential and business settings alike, the FCC sought to capitalize on these
unused spectrum areas as a means for expanding the availability of wireless
June 12 was the final deadline for terminating analog broadcasts pursuant to the DTV Delay Act. Id.
22. The Digital TV Transition, http://www.dtv.gov/consumercorner.html (last visited Mar. 16, 2010).
23. Id.
24. See Crawford, supra note 6, at 999 (discussing the unlicensed white space spectrum and its impact
on the public interest); see also Doug Mohney, Editor-in-Chief, VON Magazine, DEFCON 15 Presentation,
TV White Spaces: The Next Wi-Fi? (Aug. 2007), available at http://www.dc414.org/download/confs/
defcon15/Speakers/ Mohney/Presentation/dc-15-mohney.pdf (noting that channels 2 51 will operate at 6
MHz each); Cheryl A. Tritt, Telecommunications Future, PLI Order No. 10946, Dec. 2007, available at 920
PLI/Pat 133, 150. Channels 52 69 are set to be cleared of broadcasting entirely and reallocated for public
safety agencies and for auction to commercial wireless services. Naveen Lakshmipathy, Policy Backgrounder,
Wireless Public Safety Data Networks Operating on Unlicensed Airways: Overview and Profiles, NEW AM.
FOUND., April 2007, available at http://www.wirelessinnovationalliance.org/files/New%20America%
20Foundation%20whitespaces%20policy%20backgrounder.pdf .
25. Benjamin Lennett, Policy Backgrounder, Rural Broadband and the TV White Space, How
Unlicensed Access to Vacant Television Channels Can Bring Affordable Wireless Broadband to Rural
America, NEW AM. FOUND., available at http://www.ruralstrategies.org/projects/vacanttv/Rural_Broadband_
and_TV_WhiteSpace.pdf. Each community varies on the availability of white space depending on the amount
of congestion in the television bandwidth. Id. For example, the amount of white space in an urban area like
Trenton, NJ ranges from 20-30% and in less congested areas, such as Columbia, SC, the portion of TV band
that is white space is 70% or more. Id; see also Associated Press, Google Wants TV „White Space‟ for Wi-Fi,
Mar. 24, 2008, available at http://www.usatoday.com/tech/products/services/2008-03-24-google-wifi_N.htm.
(discussing how ―the vast majority of viable spectrum in this country simply goes unused, or else grossly
underutilized.‖).
26. Shridhar Mubaraq Mishra & Anant Sahai, How Much White Space has the FCC Opened Up, Dept.
of Electrical Engineering and Computer Sciences, U.C. Berkeley, available at http://www.eecs.berkeley.edu/
~sahai/Papers/CommLetters09.pdf. See also Dibya Sarkar, Vacant Airwaves Spur TV-Tech Turf Battle,
ASSOCIATED PRESS, Apr. 7, 2008, available at 4/7/08 APWIRES 19:24:54 (Westlaw) (discussing the February
2009 DTV switch to digital television and the resulting competition for unused airwaves); Blair Levin,
Rebecca Arbogast & David Kaut, Tech Drive To Use Broadcast White Spaces Hits Bump, WASH. TELECOM.,
MEDIA & TECH. INSIDER (Stifel, Nicolaus & Company, Balt. Md), Aug. 3, 2007 (―Estimates vary, but most of
the population (between 73% and 97%) lives in areas with access to 24 MHz or more of white space. Rural
areas in particular, have a great deal of white space as they generally have fewer television broadcasters.‖);
Meinrath, supra note 8, at 497 (―The share of the DTV band (channels 2-to-51) that will be vacant after the
February 2009 end to analog transmission ranges from 30 percent in the most congested, coastal markets (e.g.
Trenton, N.J.) to 80 percent or more in small town and rural markets (e.g. Fargo, N.D.).‖).
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broadband services throughout the country.27 Generally, the FCC governs the
management of the spectrum by assigning certain blocks of the spectrum to a
particular category of radio service. 28 The FCC then assigns licenses to
individual users granting access for use, such as television broadcasters and
FM radio companies.29 The license provides the right to access and use the
spectrum, usually over specific frequencies or frequency band and at a
particular location or geographic area. 30 A FCC licensee takes its license
subject to conditions imposed on its use, such as serving the public interest,
and is allowed to use the spectrum without causing or receiving interference.31
In addition to licensed access to the spectrum, the FCC also permits
―unlicensed operations‖ in a number of frequency bands under Part 15 of its
rules.32 Unlicensed frequencies allow anyone with certified wireless equipment
to share the spectrum with incumbent licensees on a non-interference
basis 33 The Part 15 rules provide substantial flexibility in the types of
unlicensed devices that individuals can operate, which has led to an explosive
growth of technologies such as Wireless Fidelity (―Wi-Fi‖),34 wireless home
security systems, BlueTooth and keyless entry systems.35 However, the rules
strictly prohibit the operation of unlicensed devices on certain frequencies,
including the bands used for broadcast television services.36
As discussed below, the FCC‘s regulatory rules adopted in November
2008 expand operations on the spectrum and permit certain FCC-approved
devices to operate in white spaces without first receiving a license from the
FCC. As a result, the FCC has revised the rules of spectrum allocation to create
27. Jonathan S. Adelstein, Commissioner, Fed. Comm. Comm‘n, A View on Today‘s Most Pressing
Wireless Issues, Remarks at the Fifth Annual Conference on Spectrum Management Law Seminars (Sept. 18,
2008), available at 2008 WL 4276347 (F.C.C.), at *3.
28. Logan, supra note 13, at 320; FCC Inquiry Notice, Fostering Innovation and Investment in the
Wireless Communications Market: A National Broadband Plan For Our Future, Docket Nos. 09-157, 09-51, at
5 (Aug. 27, 2009) (describing the radio spectrum as being divided into separate frequency bands that are each
allocated internationally and domestically to various radio services such as TV broadcasting).
29. FCC Inquiry Notice, supra note 28, at *5.
30. Id. at *6.
31. 86 C.J.S. Telecommunications § 146 (2008).
32. See, e.g. 47 C.F.R. pt. 15 (FCC rules allowing operation of unlicensed radio transmitters).
33. 47 C.F.R. § 15.5 (2008). See also Crawford, supra note 6, at 1000 (commenting on spectrum
available for unlicensed use).
34. Kenneth Carter, Ahmed Lahjouji & Neal McNeal, Unlicensed and Unshackled: A Joint OSP-OET
White Paper on Unlicensed Devices and Their Regulatory Issues (F.C.C. O.S.P., Working Paper No. 39,
2003), available at http://ssrn.com/abstract=1086626. (―Wi-Fi is a registered trademark term promoted by WiFi Alliance, a group of wireless internet hardware and software providers that certify ‗802.11‘ products for
wireless network services. An 802.11 network refers to a family of specifications approved by the Institute of
Electrical and Electronics Engineers (―IEEE‖). Generally, computer users can access the Internet with a highspeed wireless connection if they are within 300 feet of a transmitting antenna and have the appropriate 802.11
receiving hardware installed on their computer.‖).
35. Second Report and Order, supra note 2, at 7. See FCC Inquiry Notice, supra note 28, at 6 (stating
that the FCC has modified the rules over the years to allow users the flexibility to introduce devices for
virtually any type of application).
36. Second Report and Order, supra note 2, at 7. See 47 C.F.R. §§ 15.205 and 15.209 (setting forth
restricted bands on the television spectrum where unlicensed intentional radiators are prohibited from
operating); see also C.F.R. §§ 15.231, 15.241, and 15.242 (discussing how remote control and medical
telemetry devices are the only unlicensed transmitters that are currently permitted to operate in the television
bands).
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opportunities for innovation and development in unlicensed spectrum use.
C.
Unlicensed White Spaces and Wireless Technology
The FCC‘s decision to allow unlicensed devices to access core television
spectrum bands helps to ―ensure broadband services become available for
more Americans.‖37 These unused radio airwaves located between broadcast
TV channels have been called ―one of America‘s most valuable natural
resources‖ and have the opportunity to provide ―ubiquitous wireless broadband
access to all Americans.‖ 38 After the DTV transition, it is estimated that
between 200 and 300 MHz of unused white spaces within the television
spectrum is now available in certain areas, which allows the adaptation of
existing technology to increase the range and intensity of wireless signals and
wireless broadband technology.39
The current characteristics of the radio frequency in the television
spectrum allow Wi-Fi devices to operate through certain frequencies.40 Wi-Fi
currently accesses small portions of unlicensed white space areas of the
spectrum to provide high-speed internet to compatible devices, such as
computers and certain personal communication devices. 41 Internet Service
Providers have tapped into the unlicensed spectrum to provide Wi-Fi
broadband service access for short-range use in urban areas.42 Companies like
SkyPilot Network, Inc. 43 and Wired Towns 44 operate hotspots in certain
residential and business districts where cable and other internet providers have
been slow to arrive.45 Wi-Fi has developed into the most prevalent unlicensed
wireless broadband network technology,46 and the use of Wi-Fi has developed
37. See American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5 (codified in scattered
sections of 6 U.S.C.) (authorizing the FCC to develop a National Broadband Plan to ensure all Americans have
access to broadband capability); A National Broadband Plan for Our Future, GN Docket No. 09-51, Notice of
Inquiry, F.C.C. 09-31, at 15 (Apr. 8, 2009).
38. Free the Airwaves, http://freetheairwaves.com/about.html (last visited Nov. 23, 2008); Associated
Press, Google Wants TV „White Space‟ for Wi-Fi, Mar. 24, 2008, available at http://www.usatoday.com/
tech/products/services/2008-03-24-google-wifi_N.htm.
39. Second Report and Order, supra note 2, at 39–40; see also Maziar Nekovee, Quantifying the
Availability of TV White Spaces for Cognitive Radio Operation in the UK, CENTRE FOR COMPUTATIONAL
SCIENCE, UNIVERSITY COLLEGE LONDON, Jun. 18, 2009, http://arxiv.org/PS_cache/arxiv/pdf/
0906/0906.3394v1.pdf (analyzing the amount of white spaces available globally if white space operations
become acceptable in other countries of the world); Posting of Priya Ganapati to Wired Blog,
http://www.wired.com/gadgetlab/2008/11/fccs-decision-t/ (Nov. 5, 2008, 3:45:19 EST). For maps, charts and
an analysis the amount of white spaces available after the FCC decision, see generally Mishra, supra note 26.
For information on how much white space is available in a particular location, visit Show My White Space,
http://www.showmywhitespace.com.
40. Lennett, supra note 25, at 2.
41. Carter, supra note 34, at 43.
42. Id. at 39.
43. SkyPilot Networks, http://www.skypilot.com (last visited Feb. 1, 2009).
44. Wired Towns is a company dedicated to delivering Wi-Fi to business districts and communities
throughout the United States, including Union Square Park in New York City. Wired Towns,
http://www.wiredtowns.com (last visited Mar. 9, 2009).
45. Carter, supra note 34, at 40.
46. Tritt, supra note 24, at 148; see also Crawford, supra note 6, at 1002 (discussing the explosion of
Wi-Fi in both the consumer and manufacturer realms).
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into a multi-billion dollar industry.47
The Wi-Fi currently available operates on the 2.4 GHz spectrum with
other unlicensed devices; however, it provides many limitations to high-speed
internet accessibility.48 The short-range wireless access to local area networks
that Wi-Fi provides is limited to low-power devices and mainly urban areas.49
Wi-Fi can support several independent transmitters in a city; however, the
signal delivered generally reaches less than 300 feet. 50 Although Wi-Fi
hotspots and home use continue to grow, the characteristics of the white space
networks that will operate in accordance with the new FCC rules has been
called ―Wi-Fi on steroids‖ because of its potential to provide ubiquitous
wireless access at higher speeds and more expansive ranges.51
Supporters of unlicensed white spaces have recognized the many wireless
opportunities that could become available by allowing the utilization of white
spaces on an unlicensed basis.52 They identify the potential for an unlimited
variety of applications, devices, networks, and widespread internet availability
and lobbied to open this valuable spectrum for unlicensed use.53 Support for
white spaces has come in the form of congressional support54 and independent
coalitions, such as the New America Foundation, 55 the Public Interest
47. Crawford, supra note 6, at 1002; see also Carter, supra note 34, at i (discussing the industry‘s
―unprecedented growth‖).
48. Andrew Stirling, White spaces – the new Wi-Fi?, 1 INT‘L J. DIGITAL TELEVISION 69, 75 (2010).
49. Crawford, supra note 6, at 1002.
50. Kevin Werbach, Supercommons: Toward a Unified Theory of Wireless Communication, 82 TEX. L.
REV. 863, 912 (2004).
51. Larry Page, A Vote for Broadband in the ―White Spaces‖, http://googleblog.blogspot.com/
2008/11/vote-for-broadband-in-white-spaces.html (Nov. 4, 2008, 14:46 WST).
52. Wireless Innovation Alliance: About the Alliance, http://web.archive.org/web/20080822124329/
www.wirelessinnovationalliance.org/index.cfm?objectid=A25E1FC0-F1F6-6035-B3635EA7D5386BE0 (last
visited Mar. 16, 2010).
53. Id.
54. See generally S. 337, 110th Cong. (2007) (noting Senator Sununu introduced the bill, entitled White
Spaces Act of 2007, on January 18, 2007. The bill required the FCC to issue a final order on the availability of
unlicensed white spaces by October 1, 2007); Govtrack.us, H.R. 1320: Interference Protection for Existing
Television Band Devices Act of 2007, http://www.govtrack.us/congress/bill.xpd?bill=h110-1320 (last visited
Mar. 16, 2010) (noting that Representative Bobby Rush introduced the Interference Protection for Existing
Television Band Devices Act of 2007, H.R. 1320, 110th Cong. (2007), on March 5, 2007, which sought to
―protect important existing television band devices in the unassigned, non-licensed television channels from
harmful interference from new devices.‖ However, this bill was never enacted into law); Govtrack.us, H.R.
1597: Wireless Innovation Act of 2007, http://www.govtrack.us/congress/bill.xpd?bill=h110-1597 (last visited
Mar. 16, 2010) (noting that US Representative Jay Inslee introduced the Wireless Innovation Act of 2007,
H.R. 1597, 110th Cong. (2007), in order to direct the FCC to issue a final order regarding television white
spaces; however, the bill never made it out of committee); Sununu Introduces ‗White Spaces Act of 2007‘,
http://blog.free103point9.org/2007_01_01_archive.html (Jan. 19, 2007, 18:10 EST) (noting that Senator
Sununu, a member of the Senate Commerce Committee, stated, ―Broadcast spectrum that is otherwise unused
represents a new frontier for product development. By removing barriers that prohibit access to white spaces,
there is enormous potential for entrepreneurs to bring products to market that are now beyond imagination.‖).
But see Govtrack.us, S. 337: White Spaces Act of 2007, http://www.govtrack.us/congress/bill.xpd?bill=s110337 (last visited Mar. 16, 2010) (noting the White Spaces Act of 2007 never made it out of the Committee on
Commerce, Science and Transportation).
55. See About the Wireless Future Program, http://wirelessfuture.newamerica.net/home (last visited
Mar. 16, 2010) (describing that the New America Foundation‘s Wireless Future Program advocates to
―promote universal, affordable and ubiquitous broadband and improve the public‘s access to critical wireless
communication technologies.‖).
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Spectrum Coalition,56 and the Wireless Innovation Alliance.57
On February 4, 2009, Google, along with Comsearch, Dell, Hewlett
Packard, Microsoft, Motorola, and Neustar launched the White Spaces
Database Group. 58 The group was designed for the purpose of offering the
FCC their perspectives, and some specific recommendations, about the
technical requirements they would like to see adopted for the white spaces
database.59 For instance, the group proposed ―data formats and protocol that
are open and non-proprietary, with database administration that is also open
and non-exclusive.‖60 This initiative was designed to make sure that the white
spaces regulations are properly designed and to address some of the concerns
voiced by the opposition regarding interference and competition.
These groups illustrate the vast, dynamic collaboration for unlicensed
white space access and understand the extraordinary impact that these
unlicensed white space devices can have on the global society. However,
despite the possibilities for expansive wireless broadband access, allowing
white space devices to share spectrum with current licensees has sparked a
wave of consternation.
D.
Interference Concerns
Since the initial proposal of the white space plan over five years ago, the
FCC received more than 25,000 public comments from both supporters and
critics of the unlicensed operation of devices in white spaces.61 Those opposed
were mainly concerned about interference that the unlicensed devices will
cause to current licensed television and radio devices operating on the white
56. The Public Interest Spectrum Coalition (―Coalition‖) is concerned with white spaces and how they
can provide easier access to the internet. Coalition members supporting unlicensed access to TV white space
include Consumer Federation of America, Consumers Union, EDUCAUSE, Free Press, the Leadership
Council on Civil Rights, the National Hispanic Media Coalition, Media Access Project, New America
Foundation, Public Knowledge and others. After the FCC announced on November 4, 2008, that the FCC
would permit Internet and other wireless uses for most of the unused space admist digital television channels,
the Coalition publicly stated that, ―new wireless services will develop as a result of this decision that would not
have been allowed to be realized otherwise. These new services will enrich the lives of Americans while not
interfering with their traditional entertainment options.‖ See Press Release, Public Knowledge, Public Interest
Organizations Commend FCC for Boosting Wireless Internet (Nov. 4, 2008), available at
http://www.publicknowledge.org/node/1850 (last visited Mar. 16, 2010.
57. See New Wireless Innovation Alliance Lobbying Group Joins White Spaces Debate, BROADCAST
ENGINEERING, Dec. 20, 2007, http://broadcastengineering.com/audio/new_wireless_innovation_alliance/
(noting that the Wireless Innovation Alliance is a coalition of creators, developers, and leaders in technology
that urged the FCC to determine and adopt rules that will realize the potential of TV white spaces for
America). A spokesperson for the Wireless Innovation Alliance said, on behalf of the coalition that, ―It has
always been our position that the Commission‘s process for testing, evaluation, and rulemaking is necessary
and worthwhile, and we are pleased that we have moved one step closer to a white space enabled world.‖ See
Matthew Lasar, What‟s Next for White Space Broadband? Setting Up Databases, BENTON FOUNDATION, Feb.
19, 2009, http://www.benton.org/node/22307.
58. Richard
Whitt,
Introducing
the
White
Spaces
Database
Group,
http://googlepublicpolicy.blogspot.com/2009/02/introducing-white-spaces-database-group.html (Feb. 4, 2009,
10:01 EST).
59. Id.
60. Id.
61. Leslie Cauley, FCC Approves „White Space‟ For Broadband, USA TODAY, Nov. 4, 2008, available
at http://www.usatoday.com/tech/news/2008-11-04-white-space_N.htm.
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space spectrum. 62 Several broadcasting networks, entertainment groups,
lawmakers, and opinion leaders voiced their opposition to the use of white
space devices and sought to delay or block the FCC‘s vote.63 They alleged that
these devices would disrupt, among other things, digital television signals and
wireless microphones.64 To reduce the likelihood of interference, these parties
believed that any new services in the white spaces should be licensed and
opposed the introduction of portable devices.65
1.
The National Association of Broadcasters
The National Association of Broadcasters (―NAB‖), a trade association
that advocates on behalf of more than 8,300 local radio and television
stations,66 is one of the largest opponents of unlicensed white spaces and white
space devices.67 Prior to the FCC‘s vote on November 4, 2008, ABC, NBC,
CBS, and Fox Television Networks were among several of the NAB affiliates
who filed a complaint with the FCC regarding this decision.68
The NAB released an official statement on November 4, 2008,
commenting on the FCC‘s approval of unlicensed devices to work in white
spaces. 69 Dennis Wharton, the NAB‘s Executive Vice President, expressed
appreciation for the FCC‘s ―attempt to address significant issues raised by
broadcasters and others;‖ however, he stated that the ―[FCC] appears to have
bypassed meaningful public or peer review in a proceeding of grave
importance to the future of television.‖70 The NAB‘s main concern is that the
new white space devices will interfere with current ―interference-free TV.‖71
As a major supporter of the DTV transition in 2009,72 the NAB claims that the
billions of dollars spent on new digital television sets to prepare for the digital
conversion could be wasted if white space devices are allowed to interfere.73
The NAB was also concerned that the interference caused by unlicensed
mobile devices in white spaces could ―seriously hurt their business.‖74
62. Id.
63. See InterferenceZones, supra note 9 (providing a list and links to the white space opposition parties).
64. Id.
65. In re Unlicensed Operation in the TV Broadcast Bands, No. 04-186, 21 F.C.C.R. 12,266, 12,271-72
(Oct. 18, 2006) (stating that television broadcasters believed that white space devices should be limited to
fixed operation, contending that spectrum sensing alone is inadequate to protect against interference).
66. See National Association of Broadcasters, http://www.nab.org (last visited Nov. 18, 2008).
67. National Association of Broadcasters, NAB Floods DC Metro Station with Ads Promoting Radio,
Opposing Performance Tax, http://www.nab.org/documents/newsroom/pressRelease.asp?id=1799.
68. Ex Parte Comments of the National Association of Broadcasters et al., In re Unlicensed Operation in
the TV Broadcast Band, No. 02-380 (Oct. 29, 2004) http://fjallfoss.fcc.gov/ecfs/comment_search/input (Search
for Proc. No. ―98-120‖ Received From: ―10/29/2004‖ To: ―10/29/2004‖ Type of Filing: ―Notice of Exparte‖).
69. Press Release, National Association of Broadcasters, NAB Statement on Today‘s FCC Ruling on
―White
Spaces‖
(Nov.
4,
2008),
available
at
http://www.nab.org/documents/newsroom/
pressRelease.asp?id=1691.
70. Id.
71. Id.
72. National Association of Broadcasters, supra note 67.
73. See Interference Zones: Prohibiting the Use of Unlicensed Wireless Devices in White Spaces,
http://www.interferencezones.com/White_Spaces_Ad.pdf (an ad by the ―Interference Zones‖ coalition
prompting consumers to contact the FCC and Congress to stop the white space movement).
74. John Eggerton, FCC Tells Broadcasters To Share, Commission Approves Opening Spectrum To
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On February 27, 2009, the NAB filed a lawsuit in the United States Court
of Appeals for the District of Columbia Circuit challenging the FCC‘s decision
to authorize unlicensed devices to access white spaces. 75 Calling them
―illegal‖ and likening them to germs, the NAB and its affiliates are claiming
that white space devices will adversely affect their broadcast signals.76 In this
filing, NAB requested that the Court hold the Second Report and Order
unlawful and that it be vacated and set aside.77 The petition claims that the
FCC‘s Second Report and Order is ―arbitrary, capricious, and otherwise not in
accordance with law.‖78 Although it will be interesting to see whether the case
moves forward, if allowed, a judicial analysis of the FCC‘s Order could
provide guidance to both incumbent licenses and new users of the white space
spectrum for future innovation and operation.
2.
Wireless Microphone Manufacturers and Users
Incumbent wireless microphone companies and users of wireless
microphones are also major opponents of the white space revolution. 79
Wireless microphones operate under Part 74 of the regulations and are allowed
to transmit on the television spectrum on an unlicensed basis in accordance
with certain power and bandwidth restrictions.80 Some wireless microphones
are licensed on an area basis and may operate anywhere within that area by
choosing a frequency from multiple vacant channels available for operation.81
Most wireless microphone operations are unlicensed, however, and will share
the white space spectrum with other unlicensed devices.
Manufacturers and users of wireless microphones also claim that
unlicensed devices operating in white spaces will cause harmful interference
and disruption of services. 82 Shure Microphones, Inc. submitted several
comments to the FCC prior to the November 2008 decision. 83 Shure is a
manufacturer of microphones and audio electronics used by performers,
presenters, and professional DJs.84 From Shure‘s perspective, the decision by
Unlicensed Devices, BROADCASTING AND CABLE, Nov. 10, 2008, at 10, available at 2008 WLNR 21463938.
75. Matthew Lasar, Broadcasters Sue FCC Over White Space Broadband Decision, March 3, 2009,
http://arstechnica.com/tech-policy/news/2009/03/broadcasters-sue-fcc-over-white-space-broadbanddecision.ars.
76. Id.
77. Petition for Review at 3, No. 09-1080 (D.C. Cir. Feb. 27, 2009), available at
http://lasarletter.net/docs/nabpet4review.pdf.
78. Id. at 2 3.
79. See Matthew Lasar, Rockers Refuse To Throw The Horns For White Space Broadband, available at
http://arstechnica.com/old/content/2008/10/rockers-refuse-to-throw-the-horns-for-white-space-broadband.ars
(last visited Feb. 9, 2009) (discussing how entertainers such as Neal Diamond, Peter Frampton, and Kenny G
are concerned about the interference that white space devices will pose on their wireless microphones).
80. See 47 CFR pt. 74, Subpart H: Low Power Auxiliary Stations; See 47 C.F.R. § 74.861(a) (e)
(describing some of the applicable limitations).
81. Id.; SECOND REPORT AND ORDER, supra note 2, at 37.
82. SECOND REPORT AND ORDER, supra note 2, at 10.
83. See Press Release, Shure, Inc., Shure Raises Concern Over FCC „White Spaces‟ Decision (Nov. 4,
2004), available at http://www.shure.com/ProAudio/PressRoom/PressReleaseArchive/2008PressReleases/us_
pro_pr_ws_2008_decision (last visited Feb. 2, 2009) (describing Shure‘s opposition to the FCC‘s November
4th vote) (hereinafter ―Shure Press Release 1‖).
84. Shure Microphones, Inc., http:// www.shure.com (last visited Mar. 16, 2010).
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the FCC to allow unlicensed access to white space means possible interference
with Shure‘s wireless microphone systems, which currently use the white
space radio frequency spectrum.85 Shure is concerned that the amount of clear
spectrum available will cease to be available once the white space devices are
in use.86 Shure and other professional audio equipment manufacturers are also
concerned that they will have to spend more money to create equipment that
will work in different areas of the spectrum, and on testing their current
devices to avoid interference.87 Shure is primarily concerned, however, that the
―FCC‘s technical and operational rules. . .‗get it right‘ before mass produced
equipment is pushed in to the market.‖88 The company has filed a petition for
reconsideration of the white space ruling and has urged modification of several
technical and behavioral rules to protect wireless microphone operations for
harmful interference.89
3.
Incumbent Licensees
Incumbent licensees of the television spectrum, like Verizon, AT&T, and
Comcast, have paid billions over the years to gain exclusive rights to the
spectrum.90 They are now concerned with the increased competition by new
entrants on the spectrum who have no legacy costs to worry about.91 These
opponents fear that allowing unlicensed access to white spaces could result in
price competitions on the marketplace for traditional wireless carriers and
require incumbents to spend more to keep up with the new services that will
now be offered.92
The opponents of white space devices tried to convince legislators to
pressure the FCC to halt their testing of white space devices. 93 Those
expressing opposition for unlicensed white spaces, and there are many, have
raised valid concerns for their companies, their equipment, and the public.
However, the FCC, by voting on November 4, 2008 and by continuing to adopt
rules that will allow for interference-free devices, has taken a firm stance on
the issue and assures that major steps have been taken to ensure that society, as
a whole, will benefit from unlicensed white spaces.
Although heavily opposed, supporters of this decision have already begun
85. Shure Press Release 1, supra note 82.
86. Id.
87. Meinrath, supra note 8, at 2.
88. Press Release, Shure, Inc., Shure Files Petition For Reconsideration in White Spaces Proceeding,
March 30, 2009, available at http://www.shure.com/ProAudio/PressRoom/PressReleaseArchive/
2009PressReleases/us_pro_pr_ws_2009_petition (last visited Mar. 16, 2010).
89. Id.
90. In the recent 700 MHz spectrum auction for licensed use, Verizon paid over $4.7 billion dollars for
exclusive rights to use 22MHz of spectrum nationwide, which equates to roughly four television channels.
Tom Evslin, The White Space Opportunity – Priceless, FRACTALS OF CHANGE (Nov. 06, 2008, 11:34 EST),
http://blog.tomevslin.com/ 2008/11/the-white-space.html.
91. Id.
92. Marguerite Reardon, FCC Election Day Vote Could Revolutionize Wireless, CNET News: Signal
Strength, Nov. 4, 2008, http://news.cnet.com/8301-1035_3-10081864-94.html.
93. See InterferenceZones, supra note 9.
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capitalizing on the new availability of the airwaves.94 The recent FCC decision
can and already is creating a vast new world of high-speed wireless technology
without undue interference.95 White spaces can provide cheaper internet to
those who cannot afford broadband and to those in isolated rural areas who are
currently unable to get internet services.96 Although the opposition has raised
valid concerns, the FCC has made a decision that will change the availability
of internet throughout the United States and have positive effects on the public
welfare.97
III. ANALYSIS
The FCC‘s adoption of the new rules on November 4, 2008, which
approve the unlicensed use of white spaces for wireless broadband
technologies, unleashed new opportunities for long-range, high-speed wireless
internet access and a platform for innovation of new creative devices and
services.98 In its Second Report and Order, the FCC claims that ―these new
rules will allow the development of new and innovating types of unlicensed
devices that provide broadband data and other services for business and
consumers without disrupting the incumbent television and other authorized
services that operate in the TV bands.‖99
As previously discussed, interference is the primary concern of those
opposed to the unlicensed access to white spaces.100 The FCC has assured,
however, that the newly adopted rules will allow both fixed and portable
unlicensed devices to operate on white spaces in a manner that will not result
in ―harmful interference‖ to television services and other services using the
television spectrum.101 Harmful interference is a central concept of the FCC‘s
spectrum policy, yet is not clearly defined by the FCC.102 Although this may
be helpful to new unlicensed users of the white spaces portion of the spectrum,
it may prove damaging to those who are seemingly protected from this
interference.
The following Analysis provides an overview of the rules adopted by the
FCC for unlicensed white space devices, in addition to discussing how these
94. Joelle Tessler, FCC OKs Use Of White Spaces To Deliver Broadband, U.S.A. Today, Nov. 5, 2008,
at A3, http://www.usatoday.com/ news/ nation/2008-11-05-white-space_N.htm.
95. Id.
96. Id.
97. See Second Report and Order, supra note 2, at 19 (―. . .it is in the public interest to allow TV band
devices to operate in these bands on an unlicensed basis pursuant to restrictions carefully designed to protect
users of incumbent licensed services.‖).
98. A National Broadband Plan for our Future, Notice of Inquiry, 24 FCC Rcd 4342, 4348 (2009)
(―[T]he [FCC] recently established provisions for unlicensed devices to operate in the TV white spaces, which
hold promise for the introduction of new broadband services.‖]; see also Second Report and Order, supra note
2, at 123.
99. Second Report and Order, supra note 2, at 3.
100. See infra Part II.D.
101. See generally Second Report and Order, supra note 2 (discussing the FCC‘s findings generally with
regards to interference); Eggerton, supra note 74 (discussing the FCC‘s vote to keep ―white spaces‖
unlicensed).
102. Posting of Mitchell Lazarus to COMMLAWBLOG, http://www.commlawblog.com/2009/01/articles/
broadcast/finding-the-harm-in-harmful-interference/ (Jan. 30, 2009).
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rules will protect incumbent users of the spectrum and allow new opportunities
to advance wireless technologies.
A. A Brief History of Unlicensed White Spaces
In May 2004, the FCC adopted a rulemaking initiative that would permit
unlicensed radio transmitters to operate in unused television white spaces on a
much larger scale. 103 This proposal suggested that unlicensed wireless
broadband operations, including Wi-Fi, should be allowed access to white
spaces that exist in a given area.104 There were limits proposed, however, to the
white space availability for unlicensed devices. For example, the FCC‘s plan
required these devices to incorporate ―smart radio‖ features to identify unused
channels in a given area in order to minimize interference.105 The FCC sought
comments on a proposal that would require Global Positioning System (GPS)
receivers on fixed devices, and also on ―spectrum sensing,‖ which would
identify and automatically limit themselves to use on vacant channels.106
In September 2006, the FCC issued a public notice setting forth a detailed
schedule for FCC action in resolving issues regarding the use of white spaces
by unlicensed devices.107 Pursuant to that schedule, the FCC adopted the First
Report and Order / Further Notice of Proposed Rule Making on October 12,
2006.108 In that report, the FCC found that:
Allowing low power devices to operate in the TV bands on
frequencies that are not being used by authorized services could have
significant benefits for the public by enabling the development and
operation of new wireless communications devices and systems that
would promote access to broadband internet and other services.109
As a limitation on the use of the unlicensed spectrum, however, the FCC
decided not to permit operation of unlicensed devices on channel 37 to protect
radio astronomy and medical telemetry services.110 In addition, these devices
are prohibited from operating on channels 14 20 in certain markets in order to
avoid potential conflicts with public safety services on those channels.111
At this time, the FCC also sought additional comments on how white
space devices should operate and whether such devices can operate on
television channels without causing harmful interference to licensed
103. Notice of Proposed Rule Making, 19 F.C.C.R. 10018 (released May 25, 2004).
104. Id.; See also Catherine Wang, A Review of Wireless Developments: October 2003 – September
2004, 2004 Practising L. Inst. 3202, available at 813 PLI/Pat 103, 136 (discussing the FCC‘s May 2004 Notice
of Proposed Rulemaking).
105. Notice of Proposed Rule Making, supra note 103.
106. Id.; See discussion infra Part III.B. regarding spectrum sensing technology.
107. FED. COMM. COMMISSION, OFFICE OF ENGINEERING AND TECH., ET Docket No. 04-186, OFFICE OF
ENGINEERING AND TECHNOLOGY ANNOUNCES PROJECTED SCHEDULE FOR PROCEEDING ON UNLICENSED
OPERATION IN THE TV BROADCAST BANDS (Sep. 2006).
108. FED. COMM. COMMISSION, ET DOCKET NOS. 04-186, 02-380, UNLICENSED OPERATIONS IN THE TV
BROADCAST BANDS, FIRST REPORT AND ORDER AND FURTHER NOTICE PROPOSED RULEMAKING (2006),
available at 2006 WL 2986547 (F.C.C.).
109. Id.
110. Id.
111. Id.
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operations.112 The FCC recognized that testing of these proposed unlicensed
devices was important to ensure that incumbent radio services were protected
from any interference.113
In July 2007, the FCC‘s Office of Engineering and Technology (―OET‖),
released two technical reports providing the initial findings on whether two
prototype white space devices that were submitted for testing would cause
interference with broadcasters and devices that already operate in the television
band.114 Although the OET found that the prototype fixed, low power devices
caused interference, the OET remained confident that significant unused white
spaces would be available after the DTV transition and that existing
technology could be properly adapted to enable these new devices to operate
without disrupting incumbent operations. 115 Subsequently, in January 2008,
the OET announced a second testing phase of white space devices. 116 The
second phase of testing prototype white space devices occurred in October
2008 and yielded slightly more positive results. Low-power devices were
submitted by Adaptrum, Motorola, Philips Electronics North America
Corporation, Microsoft Corporation, and the Institute for Infocomm
Research117 and various degrees of interference again occurred depending on
the presence of other signals, such as DTV signals.118 However, Motorola‘s
device was able to not only sense other signals within a certain range, it also
contained a database of registered licensees in that range, which enabled the
device to report all occupied channels where the device was operating and
avoid interfering with those signals.119 This technology proved to be the most
beneficial for incumbent licensees of the spectrum and viewed by the FCC as
the safest approach to allowing new devices to access white spaces on an
unlicensed basis.
After over four years of study, six years of public scrutiny, and eighteen
months of intensive testing, the FCC voted on November 4, 2008, to open
white spaces for unlicensed low-cost, high-speed internet use by the public.120
112.
113.
114.
Id.; Tritt, supra note 24, at 150.
First Report and Order, supra note 108.
Tritt, supra note 24, at 151; FED. COMM. COMMISSION, OFFICE OF ENGINEERING AND TECH. INITIAL
EVALUATION OF THE PERFORMANCE OF PROTOTYPE TV-BAND WHITE SPACE DEVICES, OET Report FCC/OET
07-TR-1006; Direct-Pickup Interference Tests of Three Consumer Digital Cable Television Receivers
Available in 2005, OET Report FCC/OET 07-TR-1005 (July 31, 2007).
115. Lawrence J. Movshin, Major Issues in Wireless Telecommunications 2006-2007, in
TELECOMMUNICATIONS POLICY & REGULATION 112, 112 (2007); STEVEN K. JONES & THOMAS W. PHILLIPS,
OFFICE OF ENGINEERING AND TECHNOLOGY, INITIAL EVALUATION OF THE PERFORMANCE OF PROTOTYPE TVBAND WHITE SPACE DEVICES, (2007). Devices were submitted for this initial testing by Microsoft
Corporation and Philips Electronics North America Corporation. One device was not able to reliably sense
wireless microphones in either laboratory or field tests. The other device caused co-channel and adjacent
channel interference to TV services. Id.
116. Office of Engineering and Technology Announces Plan for Conducting Measurements of Additional
Prototype TV White Space Devices, 23 F.C.C.R. 417 ( 2008).
117. Microsoft also submitted a device for testing; however, it quit working during the test process and
was not repaired or replaced.
118. Evaluation of the Performance of Prototype TV-Band White Space Devices Phase II, 23 F.C.C.R.
16008 (2008).
119. Id.
120. Olga Kharif, FCC Opens New Airwaves to the Public, Businessweek.com, Nov. 5, 2008, available
at http://www.businessweek.com/technology/content/nov2008/tc2008115_197440.htm; Eggerton, supra note
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By a 5-0 vote, the FCC agreed to set rules governing the use of the unlicensed
white spaces and also addressed concerns that white space devices will cause
interference by promising safeguards to prevent this problem.121
B.
Overview of the Rules for Unlicensed White Space Devices
The rules adopted by the FCC in its November 2008 Second Report and
Order for the unlicensed use of television white spaces recognize the social
benefits of allowing new unlicensed devices to provide a wider range of
wireless services, but also address the interference concerns addressed by
hundreds of dissenters and commenters. 122 Because unlicensed white space
devices will be sharing the spectrum with incumbent licensees, the FCC
formulated the requirements and conditions imposed on these devices in a
manner that protects television station signals and wireless microphones from
prohibited harmful interference.123 By requiring devices to be equipped with
spectrum sensing capabilities and registered with a database system that
contains information on services using the channels in a particular area, the
FCC has required that white spaces are accessed free of harmful interference
and in the overall public interest.
1.
Types of Unlicensed Devices and Registration of Devices
The FCC rules allow for two types of unlicensed devices to operate on the
white space spectrum and provide broadband and other types of
communications services: fixed devices and personal/portable devices. 124
Fixed devices operate with relatively higher power from a fixed location and
personal/portable devices use lower power and operate from a non-fixed
location.125
Fixed unlicensed white space devices could be used in both commercial
and non-commercial operations to provide wireless broadband Internet access
on a larger scale in both urban and rural areas.126 These devices can service
homes and businesses from a fixed outdoor location which covers a substantial
74.
121. Press Release 1, supra note 2; Eggerton, supra note 74. For an explanation of the FCC rulemaking
process see The Rulemaking Process, FCC, http://www.fcc.gov/rules.html and http://wireless.fcc.gov/wtb/
index.htm?job=rulemaking_process (last visited Mar. 30, 2010).
122. See Second Report and Order, supra note 2, at 14.
123. See generally Second Report and Order, supra note 2; Eggerton, supra note 74; Janet Hernández,
Summary of FCC‟s Second Report & Order for Unlicensed Operations in the TV Broadcast Bands (White
Spaces Order), Nov. 4, 2008, http://www.tmglegal.com/_pdfs/Client%20Alert%20-%20FCC%20Whites%
20Spaces%20Order.pdf.
124. SECOND REPORT AND ORDER, supra note 2, at 15. The FCC proposed allowing fixed devices to
operate under Section 15.247 of the rules, which provide technical provisions for digital transmission systems.
Under those rules, fixed unlicensed devices would be allowed to operate using directional antennas within
certain output criteria. However, given the unused white space spectrum available after the DTV transition, the
FCC decided to allow these fixed low power devices to operate in the television bands. 47 C.F.R. § 15.247.
125. Second Report and Order, supra note 2, at 22.
126. Id. at 113 Wireless Internet Service Providers (WISPs) are currently using unlicensed devices to
provide limited broadband services over distances of several kilometers. New fixed unlicensed white space
devices are expected to deliver these services at ranges far exceeding those. Id. at 22.
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geographic area, or may be part of a service infrastructure.127
Personal/portable devices, on the other hand, could operate similar to WiFi cards in laptop computers and wireless home networks.128 These unfixed
white space devices are used indoors within a smaller area and can provide
faster broadband wireless connectivity between computing devices, home
entertainment operations, or business applications, such as wireless inventory
control.129
The FCC‘s rules impose a burden of registration on all unlicensed devices
seeking to access white spaces.130 These type of devices will not be allowed to
transmit unless they are registered with the database131 and receive a response
authorizing access from the database system.132 Personal/portable devices, on
the other hand, are not required to register their operations with the database.133
Registration of the unlicensed white space device is similar to the existing
registration procedures for registering internet access equipment and
computing software. 134 The unlicensed white space device is required to
provide the database system the device‘s FCC identifier and serial number, the
geographic coordinates of the device‘s location (from the geolocation
capability), the responsible party‘s name, the name of a contact person, and the
contact‘s address, email address and telephone number.135
2.
The Database and Geolocation Sensing
In accordance with the FCC rules, both types of white space devices are
required to be able to ―reliably determine which channels are occupied by
licensed operations at their location at any given time and to avoid interfering
with services on those channels.‖136 The FCC has imposed two conditions to
allowing unlicensed white space devices to operate: white space devices must
sense local transmissions from incumbent licenses, such as television and
wireless microphones in order to avoid transmitting on those frequencies, and
the devices must also access a database of known transmitters as a backup
solution in case spectrum-sensing is failing.137 This mandate was the FCC‘s
127. Id.. The FCC limits the operation of fixed devices to 4 watts EIRP to decrease the risk of
interference in congested areas and to take a more cautious approach to preventing interference based on the
inexperience with these types of devices. See Id. at 41. For a detailed analysis of the technical requirements for
white space devices, see STEPHEN J. SHELLHAMMER ET AL., TECHNICAL CHALLENGES FOR COGNITIVE RADIO
IN THE TV WHITE SPACE SPECTRUM, (QualComm Corporate Research and Development), available at
http://ita.ucsd.edu/workshop/09/files/paper/paper_1500.pdf.
128. SECOND REPORT AND ORDER, supra note 2, at 22.
129. Id.
130. See infra Part III.B.3.
131. Id.
132. SECOND REPORT AND ORDER, supra note 2, at 41.
133
SECOND REPORT AND ORDER, supra note 2, at 36. The FCC believes that personal/portable devices
can accurately determine available channels via the geo-location/database method, without requiring these
devices to register their operations with the database system. Id. at 46.
134. Id.
135. Id. at 41.
136. Id. at 5.
137. Id. at 23 5; Nate Anderson, WiFi on Steriods? First “WhiteFi” Prototypes Hit Testing Stage, ARS
TECHNICA (Aug. 27, 2009), http://arstechnica.com/tech-policy/news/2009/08/wifi-on-steroids-first-whitefi-
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way to ensure that the devices will avoid transmitting on television channels
being used by television stations, wireless intercoms, wireless microphones,
and other users.138 As a result, all unlicensed white space devices must have
both ―geolocation/database and spectrum-sensing‖ technology before being
allowed to operate on the television spectrum.139 Geolocation methods, such as
GPS, use the device‘s longitude and latitude coordinates to establish its
location and then refers to the database to determine which television channels
are available for use in that area.140 Spectrum sensing technology uses a ―listen
before talk‖ approach to detect whether a television channel is vacant in the
device‘s area.141 Fixed devices must employ both geolocation/database access
and spectrum sensing capabilities, while personal/portable devices must either
be under control of a fixed device with such capabilities or employ the
geolocation/database access and spectrum sensing itself.142
Unlicensed white space devices must contain the requisite technology to
detect signals of protected services and avoid transmitting on those channels.143
Personal/portable devices can rely solely on spectrum sensing technology to
access available channels, however, spectrum sensing alone is not enough to
provide protection against interference for fixed devices. 144 All unlicensed
fixed and personal/portable white space devices must access a database to
obtain information on the available channels at their location and all fixed
devices must register their operations with the database. 145 The FCC will
appoint one or more database administrators who will be charged with
maintaining the database and including in the database information on
devices-hit-testing-stage.ars.
138. Second Report and Order, supra note 3, at 23–25, 29; Technical Crew News, Radio Frequency:
Electro-Voice Wireless Microphone Products and the FCC ―White Space‖ Legislation (Nov. 5, 2008, 18:00:00
EST), http://www.technicalcrew.com/modules/news/article.php?storyid=152.
139. Second Report and Order, supra note 3, at 29 30. The FCC stated that white space devices that rely
only on spectrum-sensing technology would have to undergo further ―proof of performance‖ interference
testing. Id. See also Lynn Stanton and Paul Kirby, FCC Authorizes Devices for Use in “White Spaces,” to
Weigh Rural Backhaul Use in Inquiry, Telecommunications Reports, Nov. 15, 2008, available at 2008 WL
214819932 (noting that devices which rely on geolocation technology need only pass FCC equipment
certification); Calabrese, supra note 9, at 495 (explaining the multi-step process by which the FCC will ensure
that WSDs will cause no harmful interference); Press Release 1, supra note 2 (differentiating between the two
approval processes for devices utilizing spectrum-sensing technology and geolocation technology).
140. Second Report and Order, supra note 3, at 76, 108 10.
141. Id. at 84; see also Neeraj Srivastava & Sharon Hanson, EXPANDING WIRELESS COMMUNICATIONS
WITH ―WHITE SPACES”, Dell White Paper, (October 2008), available at http://www.dell.com/
downloads/global/vectors/White_spaces.pdf.
142. Second Report and Order, supra note 3, at 4.
143. Id. at 30 31. Although DTV, analog television and wireless microphones all operate at different
minimum received signal levels, the FCC did not specify separate minimum sensing threshold levels for each
service, but rather adopted a single minimum required sensing detection threshold value of -114 dBm/6 MHz
for all television band services. The FCC believes that this minimum sensing level is technically feasible and is
adequate to protect authorized services operating in the TV band. The service threshold values for signals in
the UHF TV band are: DTV signals -84 dBm, analog TV -63 dBm, and wireless microphones -87 dBm. Id.
144. Personal/Portable devices that rely solely on spectrum sensing capability and do not include
geolocation and database capabilities must meet a ―proof of performance‖ standard and demonstrate with an
―extremely high degree of confidence‖ that they will not cause interference to incumbent services on the
spectrum. Second Report and Order, supra note 3, at 4, 89.
145. Second Report and Order, supra note 3, at 71 (personal/portable devices that operate under control
of a fixed or other personal/portable device will not be required to register separately and access the database
to obtain information on available channels).
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incumbent licensed users of the television band and other users of the spectrum
within a certain range. 146 The database will allow a white space device to
identify vacant channels at the unlicensed device‘s location that are available
for the device‘s operation. 147 Google, along with nine other entities, have
asked the FCC to name them as database administrators for white space
devices.148
Full and low power television stations, cable system headends and
wireless microphones will all be included in the database, which will allow the
white space devices to detect which area of the spectrum is available in a given
location. 149 The FCC considers this one of the best approaches to avoid
interference and this approach can be used along with other interference
avoidance mechanisms to verify that the channels are unused and available.150
3.
Certification of White Space Devices
As previously mentioned, the FCC OET has undertaken considerable
testing and analysis to determine the best way to provide widespread wireless
broadband access using white spaces without causing harmful interference to
those already using the spectrum. 151 All devices will be required to obtain
certification from the FCC OET verifying that they meet the FCC‘s
requirements before companies are allowed to market the devices to the
public.152 This enables the FCC to act as a gatekeeper to all devices seeking
access to the white space spectrum.
The device applicant must meet all of the requirements for equipment
certification under Parts 2 and 15 of the FCC rules.153 Prior to certification, all
devices must be tested by the FCC OET to ensure they meet all of the pertinent
FCC requirements.154 This testing process is currently used by the FCC for
new technologies that raise significant interference concerns. 155 This
safeguard will cause the release of new devices to be delayed; however, it will
146. See 47 CFR §§ 15.713, 15.715 (containing the regulations relating to TV bands database creation,
and who will be responsible for administering it).
147. Second Report and Order, supra note 3, at 36, 72, 78.
148. The FCC reserves the right to select more than one entity to operate the database but ensures that
sufficient safeguards will be put in place to ensure that users of white spaces will receive the same set of
available channels regardless of which database it accesses. The database(s) will be privately owned and
operated by a third party and can charge fees for registration of fixed devices. Id. See also FED. COMM.
COMMISSION, ET DOCKET NO. 04-186, DA 09-2479, PROPOSAL BY GOOGLE INC. TO PROVIDE A TV BAND
DEVICE DATABASE MANAGEMENT SOLUTION (January 4, 2010) (Google, Inc‘s proposal to the FCC to
designate Google as administrator of a TV bands geolocation database).
149. Id. at 36; Cable Digital News, FCC Publishes „White Spaces‟ Rules, Nov. 17, 2008,
http://www.lightreading.com/document.asp?doc_id=168155&site=cdn.
150. Second Report and Order, supra note 3, at 30, 71.
151. See supra Part II.D (discussing concerns with white space interference).
152. Second Report and Order, supra note 3, at 88.
153. Id.; See also 47 C.F.R. parts 2 and 15 (listing regulations for Frequency Allocations and Radio
Treaty Matters, and Radio Frequency Devices).
154. Devices that rely solely on spectrum sensing technologies will be tested by the FCC in both the
laboratory and real-world settings. Press Release, supra note 2, at *1; For a discussion of the FCC‘s
certification procedure, see Second Report and Order, supra note 3, at 89.
155. See id. at 88. (providing example of current FCC certification requirements similar to those now
required for unlicensed white space devices).
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allow the OET to thoroughly test the prototypes and recognize any interference
concerns before allowing them to access white spaces.
4.
Sale and Operation of White Space Devices and Networks
―Allowing for unlicensed use of white spaces means consumers will see a
new generation of wireless broadband devices.‖156 However, the question of
when these devices will be launched for consumer use is still open. The FCC,
in its October 2006 First Report and Order, specifically restricted the operation
of the devices until after the original DTV transition date of February 17,
2009.157 There was a concern that the white space devices would interfere with
the DTV transition, but the transaction was completed before the release of
white space devices. White space devices were allowed to go on sale on
February 18, 2009, but there were no such sales as of that date and, as of this
publication, this technology has yet to enter the consumer market.158 It will
take time for manufacturers of new white space devices to build the new
devices and it will take even longer for the FCC to test and certify the
devices. 159 This delay is justified, however, if harmful interference is
addressed before devices enter the spectrum.
At the inception of the white space phenomena, Google, along with
Philips and Microsoft, also submitted their own white space devices for testing
by the FCC OET. 160 These prototypes of white space wireless broadband
devices are ―intended to demonstrate the viability of leveraging the ‗white
spaces‘ in the spectrum currently devoted to broadcast TV for unlicensed
wireless broadband use.‖161 These devices have a variety of characteristics,
and are in the form of access points, a mobile communications device, and
home media devices, such as a receiver box or server. 162 However, these
devices are currently only being used on limited networks in controlled areas.
Microsoft has built a prototypical network, called ―WhiteFi‖, which it
claims will overcome the challenges of ―classical‖ wireless networking
problems and uses technological advancements and the FCC rule specifications
to network over white spaces. 163 The WhiteFi operates on the KNOWS
156. Ganapati, supra note 39.
157. Press Release 1, supra note 2, at 10.
158. Radio Frequency: Electro-Voice Wireless Microphone Products and the FCC ―White Space‖
Legislation, http://www.technicalcrew.com/modules/news/article.php?storyid=152 (Nov. 5, 2008, 18:00:00
EST).
159. Calabrese, supra note 9, at 507–08.
160. Susan Crawford, Tying Together DTV, 700 MHz, and White Spaces, Public Knowledge Policy Blog,
http://www.publicknowledge.org/node/1315 (Dec. 17, 2007, 15:25 EST); see also Dell, supra note 136
(discussing expanding wireless communications with white spaces).
161. Paul Mah, Prototype “White Space” Broadband Devices Submitted to FCC for Testing, IT NEWS
DIGEST, Jan. 19, 2008, http://blogs.techrepublic.com.com/tech-news/?p=1942 (last visited Feb. 9, 2009).
162. See, e.g. Stirling, supra note 48 (discussing different types of white space devices); Shellhammer,
supra note 124; TV White Space Device Sensor, Industry Development Department, Singapore, available at
http://www.exploit-tech.com/etp_tec/slot/u1/Resources/News/2009/150609_12Breakthrough/CommunicAsia+
‘09_TV+White+Space.pdf (last visited Nov. 20, 2009).
163. KNOWS – Microsoft Research, http://research.microsoft.com/en-us/projects/knows/. KNOWS is
Microsoft‘s coined term for the Network solution and stands for Networking Over White Spaces.
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platform, 164 which is a hardware prototype for white space networking that
incorporates a Wi-Fi card, a UHF band converter, and a software-defined
radio. 165 WhiteFi seeks to create a Wi-Fi-style system in which multiple
clients can connect to a local access point operating in the white space
spectrum.166 Although the first prototype device did, in fact, cause interference
with television signals, a second round of tests on a second prototype device
did not have the same interference issues.167 Microsoft‘s WhiteFi initiative
―incorporates a new adaptive spectrum assignment algorithm to handle
spectrum variation and fragmentation‖ and introduces a technique, known as
SIFT,168 which reduces the time to detect transmissions on a channel to avoid
interference. 169 Microsoft‘s WhiteFi white spaces network is currently
connecting multiple Microsoft campuses and may be ―the first live white
spaces network ever.‖ 170 Success of this network may define the future of
white space networks.
In addition, rural cities and county governments are testing the white
space rules and beginning to deploy white space technology in order to take
advantage of wide-range Internet access for their municipal governance and
emergency first responders.171 In October 2009, the first public white spaces
network was officially launched in the small, rural town of Claudville,
Virginia.172 The white spaces network operates within the realm of the FCC‘s
rules and uses sensing technology and a database provided by Spectrum
Bridge.173 The network ―assigns non-interfering frequencies to white space
devices, and can adapt in real time to new TV broadcasts, as well as to other
protected TV band users operating in the area.‖174 Claudville‘s network, like
Microsoft‘s WhiteFi network, serves as a model white spaces network and has
provided a small, rural town ―middle mile‖ connection to high-speed
broadband services previously unavailable.175 The white space network carries
a broadband signal over the white space spectrum about 1.5 miles, which is
much farther than the 300 feet Wi-Fi signals can travel, and wirelessly
connects the town. 176 The FCC granted an eighteen-month experimental
164. PARAMVIR BAHL, ET AL, MICROSOFT, WHITE SPACE NETWORKING WITH WI-FI LIKE CONNECTIVITY,
available at http://research.microsoft.com/pubs/80952/whitefi.pdf.
165. Id.
166. Id.; KNOWS, supra note 163.
167. Posting of Julie Bort & Denise Dubie to Microsoft Subnet Blog, Microsoft, Dell, Spectrum Bridge
Launch First Public White Spaces Network, http://www.networkworld.com/community/node/46577 (Oct. 21,
2009, 16:23 EST).
168. Bahl, supra note 164. SIFT is short for Signal Interpretation before Fourier Transform. For a
detailed explanation of Microsoft‘s SIFT technique, see Id.
169. Id.
170. Bort & Dubie, supra note 167.
171. Lennett, supra note 25.
172. Bort & Dubie, supra note 167; SPECTRUM BRIDGE, IMPROVING ACCESS TO HIGH SPEED BROADBAND
IN CLAUDVILLE, VIRGINIA WITH TV WHITE SPACES, http://spectrumbridge.com/web/images/pdfs/
whitespaces_casestudy-spectrumbridge.pdf (last visited Mar. 16, 2010).
173. Spectrum Bridge, supra note 172.
174. Bort & Dubie, supra note 167.
175. Id.; Spectrum Bridge, supra note 172. Dell and Microsoft donated white space computer equipment,
internet video systems and software to the school. Id.
176. Spectrum Bridge, supra note 172; see also Kenneth Corbin, Greeting the World‟s First White
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license for the Claudville network, which will serve as a testing ground for
interference issues, as well as the cost and reliability of such a network.177
The FCC rules expand the availability of television spectrum to users on
an unlicensed basis. By placing strict restrictions on the types of devices and
how those devices can operate on the white spaces, the FCC has effectually
allowed for extensive innovation and development in wireless technology. As
companies and consumers begin to recognize the limitations of current
wireless technologies and the benefits that unlicensed white spaces offer, the
FCC will be charged with enforcing these rules, certifying devices, and
ensuring that the societal benefits are being fully capitalized.
C.
Addressing Interference Concerns
As previously stated, the FCC provides for the operation of unlicensed
white space devices under Part 15 of its rules. 178 These rules allow for
considerable flexibility to provide wireless services on a non-interference
basis.179 Unlicensed devices must operate on the condition that they accept
any interference received.180 In addition, the rules specifically grant current
licensees of the spectrum protection by requiring unlicensed white spaces
devices to avoid causing ―harmful interference‖ to authorized users.181 The
FCC does not provide a clear definition of this requirement. Under the present
rules, ―harmful interference‖ has two parts: (1) for radionavigation service182—
such as GPS or safety services such as police, fire, or distress beacons—
harmful interference includes anything that ―endangers‖ its functioning; and
(2) for any other licensed service, harmful interference includes anything that
―seriously degrades, obstructs, or repeatedly interrupts a radiocommunication
service[.]‖183 Thus, the standard for interference is rather high for unlicensed
white space users. If the devices cause interference, the incumbent licensee
who has suffered must prove not only that the interference rose to the level of
―harmful,‖ but also that it either endangered its service or seriously degraded,
obstructed or repeatedly interrupted the service. To complicate matters,
neither the FCC regulations nor courts have clarified the meaning of
Spaces Network, INTERNETNEWS.COM, Oct. 21, 2009, http://www.internetnews.com/government/
article.php/3844841.
177. Corbin, supra note 176.
178. See Infra, II.B. (discussing unlicensed Wi-Fi operations under Part 15); FCC Radio Frequency
Devices, 47 C.F.R. § 15 (2009).
179. See Fostering Innovation and Investment in the Wireless Communications Market, A National
Broadband Plan for Our Future (Notice of Inquiry), 24 F.C.C.R. 11322, 11334 (2009) [hereinafter NOI]
(noting several possible definitions of ―efficiency‖ in spectrum use).
180. 47 C.F.R. § 15.5(b) (2009); Second Report and Order, supra note 3, at 6–7, ¶ 11; NOI, supra note
174, at 11327, ¶ 23.
181. 47 C.F.R. § 15.5(b) (2009); Second Report and Order, supra note 3, at 6–7, ¶ 11; NOI, supra note
174, at 11327, ¶ 23.
182. ―The radionavigation service is: ‗a radiodetermination service for the purpose of radionavigation‘
and furthermore, radionavigation is defined as: ‗radiodetermination used for the purposes of navigation,
including obstruction warning.‘‖ U.S. DEP‘T OF COMMERCE, SPECTRUM MANAGEMENT FOR THE 21ST
CENTURY: THE PRESIDENT‘S SPECTRUM POLICY INITIATIVE B-69 (2008), available at
http://www.ntia.doc.gov/reports/2008/FederalStrategicSpectrumPlan2008.pdf.
183. See 47 C.F.R. § 2.1 (2008) (defining ―Harmful Interference‖); NOI, supra note 174 at 11332, ¶ 34.
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―degrades,‖ ―obstructs,‖ or ―repeatedly interferes.‖184
Yet, unlicensed devices, such as garage door openers and keyless entry
systems, have successfully used television bands in accordance with Part 15
without causing interference for several years.185 The FCC, through adoption
of the standards and requirements contained within the Second Report and
Order, claims that the rules for white space devices are similarly designed ―to
prevent harmful interference‖ and allow for peaceful spectrum sharing through
several safeguards for which a white space device must adhere to. 186 In
addition to the feasibility testing, certification and registration restrictions, the
FCC has recognized the potential for harmful interference caused by
unlicensed operations and has developed specific device requirements
designed to protect existing services. 187 The rules require devices to have
geolocation/database and spectrum-sensing technologies, 188 but also provide
detailed technical criteria that will be used by the FCC to determine how
channels are considered vacant for the purpose of allowing the unlicensed
device to operate on that channel.189 These specific standards will be used to
protect current services accessing the television spectrum, including, but not
limited to, full service television stations and wireless microphones.190
The FCC‘s rules protect both low-power service and full-service
television stations from harmful interference by prohibiting unlicensed devices
from operating co-channel to a television station.191 Fixed white space devices
are prohibited from operating on a channel adjacent to a television station and
personal/portable devices are limited to operating within specified minimum
service thresholds on channels adjacent to an active channel. 192 Although
NAB and incumbent television broadcast stations sought rules that lower the
allowable power level of unlicensed devices, the new rules adopt permissible
output levels and the existing services will have to show that those levels cause
―harmful interference‖ before the FCC will remove the devices from the
spectrum.193
The interference concerns raised by existing wireless microphone
manufacturers and users have also been addressed. 194 The FCC expressly
states that ―[w]ireless microphones will be protected in a variety of ways.‖195
Operations of these auxiliary services under Part 74 of the rules are licensed
and are thus protected from ―harmful interference‖ by unlicensed white space
184. Renee Dopplick, Hidden Costs of the Wireless Broadband Lifestyle: Comparing Consumer
Protections in the United States, Canada, and the European Union, 15 RICH. J.L. & TECH. 5, 10 (2008).
185. See Meinrath, supra note 8, at 515 (citing wireless microphones and ―smart‖ radio technologies as
success stories).
186. Second Report and Order, supra note 3, at 2.
187. Id. at 56.
188. Id. at 37.
189. Id. at 56.
190. See id. at 56–68 (describing criteria regarding the protection of broadcast television services).
191. Id. at 61.
192. Id.
193. See Second Report and Order, supra note 3, at 3 (providing that the FCC will remove from the
marketplace equipment found to cause ―harmful interference‖).
194. See infra, II.D.
195. Press Release I, supra note 2, at *1.
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devices. 196 The FCC rules diminish the possibilities for interference by
requiring that venues and other devices be registered in the online database as
an ―off-limits‖ area. 197 At locations where events are planned, wireless
microphone operators can register the location, time, and television channels
used for the program or event and the wireless microphone or other device
using the spectrum will be granted unfettered access to that location for a
certain amount of time.198 Once registered with the database, unlicensed white
space devices will not be allowed to interfere or operate within one kilometer
of the registered event. 199 In addition, as aforementioned, the white space
devices must include the spectrum sensing ability to listen to the airwaves to
sense wireless microphones within a minimum signal level and use that
capability in determining the availability of channels in that area. 200 As an
additional safeguard, the FCC reserves the right to request the database
administrator remove inaccurate data or data that is filed for the purpose of
limiting the other parties‘ legitimate use of the white spaces.201 This provides
added protection for the microphones and other devices that operate under Part
74 of the rules by giving the FCC authority to ensure the database contains
accurate and updated information.202
Allowing for unlicensed devices to be used over white spaces presents
several unique challenges that the FCC has carefully tested, deliberated, and
considered prior to release of the new regulatory rules.203 By recognizing a
multitude of possibilities for interference and formulating the rules around the
prevention of this interference, the FCC has laid out a framework for which
unlicensed white spaces can operate without causing incumbent licensees
harm.204
D.
Social Benefits of Unlicensed White Spaces
The policy interests underlying the FCC‘s new white space rules are
enormous when consumer benefits and economic outcomes are considered.
The new rules encourage capital investment in the wireless marketplace and
bestow upon consumers new and empowering technologies that will build on
the success of wireless communication. 205 Not only will more Americans
potentially be able to use high-speed internet at a lower cost, this new wireless
world will spawn a wave of opportunities for innovation and creativity in the
196. See 47 C.F.R. § 74.861(d).
197. Second Report and Order, supra note 3, at 20, 43, 48.
198. Id. at 36, 70.
199. Id. at 35, 70.
200. Id. at 38. The FCC concluded that sensing at a -114 dBm minimum detection threshold was both
appropriate and feasible to protect wireless microphones and the signals of other services. Id. For a more
technical discussion of detection thresholds, see Shellhammer, supra note 124.
201. Second Report and Order, supra note 3, at 70.
202. See id. at 69 (discussing the necessary protection of Part 74 devices).
203. See generally Shellhammer, supra note 124 (noting the challenges that the FCC will face with
unlicensed devices, including the requirement of spectrum sensing and the need to ensure reliable service).
204. Id.
205. FCC Inquiry Notice, supra note 28, at 2.
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realm of wireless technology.206
1.
Access to All Americans
Low-frequency spectrum is currently available in large quantities
throughout America.207 Tapping into these white space frequencies will allow
rural areas, underserved urban areas, and other ―blackout areas‖ to receive
wireless broadband internet service. 208 The need for high-speed broadband
internet service is greatest in rural areas where there is also the greatest amount
of unused television spectrum.209 The cost of laying fiber in rural areas is high
and allowing high-speed wireless access through white spaces in these areas
can allow Internet access at a lower cost.210 Free Press takes the position that,
―[u]sing these white spaces, the wireless broadband industry could deliver
Internet access to every American household at high speeds and low prices—
for as little as $10 a month. . . .‖211
Unlicensed white space devices can also increase the availability of
mobile, high-speed internet access in high schools and middle schools, similar
to the technologies major universities currently have.212 In addition, it can be
used to ―increase the reliability and decrease the cost of video conferencing on
[both] college and commercial campuses.‖213 Ed Felton, a computer science
and public affairs professor at Princeton University, states the economic effect
plainly: ―bandwidth makes people more productive.‖ 214 Thus, by allowing
new devices to provide high-speed Internet to a wider area, production and
options in terms of work locations have the possibility to increase
dramatically.215 As our society continuously evolves into a more fast-paced
and interconnected network, these technological advances can help sustain and
expand the use of technology to provide substantial societal and economic
benefits.
206. Sascha Menrath & Victor Pickard, Revitalizing the Public Airwaves, New America Foundation 1
(New America Foundation, Working Paper No. 24, 2009), available at http://www.newamerica.net/
publications/policy/revitalizing_public_airwaves.
207. NEW AMERICA FOUNDATION PUBLICATION, EXAMPLES OF CONSUMER BENEFITS FROM ―TV WHITE
SPACES‖ LEGISLATION 1 (2006), http://www.newamerica.net/files/White%20Space%20Consumer%20
Benefits.pdf.
208. New America Foundation, Wireless Future Program, http://wirelessfuture.newamerica.net/home
(last visited Mar. 16, 2010).
209. Evslin, supra note 90.
210. See id. (explaining that service providers will not have to pay for access to the unlicensed spectrum
and competition among providers will also lower costs).
211. BEN SCOTT & MICHAEL CALABRESE, MEASURING THE TV ―WHITE SPACE‖ AVAILABLE FOR
UNLICENSED WIRELESS BROADBAND 1(2005), http://www.freepress.net/files/whitespace_analysis.pdf; Free
Press, http://www.freepress.net (last visited Mar. 16, 2010).
212. Michael Calabrese, Examples of Consumer Benefits from TV „White Spaces‟ Legislation, NEW AM.
FOUND., July 10, 2006, http://www.newamerica.net/publications/policy/examples_of_consumer_benefits_
from_tv_white_spaces_legislation.
213. Id.
214. Jennie Phillips, U.S. Broadband Push Seen Gaining Steam, INVESTOR‘S BUS. DAILY, Nov. 13, 2008,
para. 5.
215. Id.
206
2.
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Competition in the Wireless Market
Another goal of using white spaces to promote broadband is to provide
new competition all across the country.216 Having unlicensed usage of white
spaces allows more innovators and entrepreneurs to enter the wireless market
and build the technologies of tomorrow.217 This will potentially allow the cost
of internet to be decreased while increasing the overall speed of the internet.
One of the key advantages of the unlicensed spectrum is that new
technological experiments can be undertaken without first seeking approval of
spectrum licensees.218 Entrepreneurs will have an open door to explore new
and novel ways to use white spaces to provide longer-range, higher-speed
Internet connections. 219 By allowing the use of unlicensed white space
devices, the FCC has prevented stagnation in the wireless industry.
Competition also means more variety for consumers. When Wi-Fi was
first introduced, manufactures vied to be the first to provide certified
equipment for hotspots and, as a result, created a multi-billion dollar
industry. 220 More innovative products, more wireless choices, and higher
wireless data speeds all became widely available. White space devices and
networks have the capability to provide even more choices and connectivity
and further escalate success in the wireless industry. In addition, the use of
white spaces could finally usher in the era of seamless roaming across
technologies.221 This means that computers and other wireless Internet devices
could travel from zone to zone without losing connectivity, much as cellular
phones do today.
As discussed, major companies such as Microsoft, Dell, and Google are
major players in the battle for unlicensed white spaces. Google co-founder
Larry Page made a trip to Washington while the FCC was considering making
white spaces unlicensed to lobby for public access to these white spaces.222
Google saw the untapped, ―natural‖ white spaces as a chance to provide ―huge
economic and social gains if used efficiently.‖223 Looking to expand its wide
range of services and diversify its control over the revolutionary era of wireless
technology, Google wants to become a major broadband service provider.224
Calling it ―WiFi 2.0,‖ Google wants to use white spaces to provide the greatest
availability of wireless networks that America has ever seen.225 ―Google sees
216. Albanesius, supra note 11.
217. Official Google Blog, Time to ―Free the Airwaves‖, http://googleblog.blogspot.com/2008/08/timeto-free-airwaves.html (Aug. 8, 2008); FCC Inquiry Notice, supra note 29, at 2.
218. Crawford, supra note 6, at 1000 (2008).
219. Id. at 1003.
220. Id.
221. Ganapati, supra note 39.
222. Olga Kharif, Google‟s White-Space Fixation, BUS. WK., May 23, 2008, available at
http://www.businessweek.com/technology/content/may2008/ tc20080522_623138.htm.
223. Peter Kaplan, Eric Auchard, Google Unveils “White Space” Airwaves Plan, REUTERS, Mar. 24,
2008, available at http://www.reuters.com/article/newsOne/idUSWA.
224. Ganapati, supra note 39.
225. Erick Schonfeld, Google‟s Election-Day Victory: FCC Approves Unlicensed Use of “White Spaces”
Spectrum, TECHCRUNCH, Nov. 4, 2008, http://www.techcrunch.com/2008/11/04/googles-election-day-victoryfcc-approves-unlicensed-use-of-white-spaces-spectrum/.
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the white-space spectrum as a natural place to operate a new class‖ of wireless
devices based on Google‘s new Android software.226
Other countries are also taking America‘s lead and are considering
opening up white spaces to new applications and devices. In the United
Kingdom, Ofcom, the U.K.‘s FCC-equivalent, has recognized the benefits that
unlicensed white spaces can provide and has committed to studying various
technological approaches for allowing white space devices to access the
television spectrum. 227 A working-group has been formed to develop a
regulatory framework similar to the FCC‘s, which will allow white space
devices to share spectrum without causing interference. 228 The European
Commission has also recognized the potential of white spaces and is working
with leading experts in spectrum regulation to develop the technical
requirements for white space devices.229
In early 2009, the FCC announced the creation of a new ―International
TV White Spaces Fellowship and Training Initiative‖ which ―will provide a
platform for the FCC to work with international regulators and their spectrum
experts on technical issues associated with the use of TV white spaces and
further build on [the FCC‘s] momentum in this area.‖230 It can be expected,
therefore, that the innovative white space devices that are being launched in the
United States will eventually provide the same economic growth and social
development in foreign nations.
White space technology has endless potential for future innovation and
economic growth in the wireless sector of society. The FCC has made a
decision that will dramatically change the way Americans, and potentially
societies across the world, access the Internet, communicate and interact.
Wireless companies, consumers, and students are among the several groups
who will benefit from the wireless communications offered by new white
space applications and devices. However, the success of unlicensed white
space access depends on adherence to the FCC‘s Second Report and Order
rules, continuous discussion regarding the appropriate rules to be in place and
voluntary cooperation in enforcing the regulatory framework that has been
adopted.
IV. RECOMMENDATION
The FCC rules do not address with specificity the legal responsibilities of
the manufacturers who will be developing and administering new unlicensed
white space devices or disruption of signal reception that the devices may
cause. Although the rules require white space device manufacturers to provide
226. Kaplan, supra note 223.
227. See Stirling, supra note 48, at 82 (noting Ofcom‘s review of ―how best to proceed with allocating
the 112 MHz‖, ―expecting [it] could be released to new applications‖).
228. Id.
229. Id.
230. Press Release, Fed. Commc‘ns Comm‘n, FCC Chairman Martin Creates New International TV
White Spaces Fellowship And Training Initiative (Jan. 9, 2009), available at http://hraunfoss.fcc.gov/
edocs_public/attachmatch/DOC-287792A1.pdf.
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a warning of the potential for harmful interference in the device‘s owner‘s
manual and provide steps that consumers can take to identify and remediate
interference, this only addresses correcting interference after it has
happened. 231 The rules also fail to address how disputes that arise over
disagreements about harmful interference should be handled.232 This section
examines how the FCC has proposed to handle harmful interference caused by
unlicensed white spaces and where these proposals fall short.
A.
Monitoring Interference
FCC Commissioner Martin assures that the FCC ―will closely oversee
and monitor the [] introduction of TV [white space] devices‖ and ―will act
promptly to remove from the market any equipment found to be causing
harmful interference [] and will require the responsible parties to take
appropriate actions to remedy any interference that may occur.‖233 The FCC
requires that fixed devices ―automatically and periodically transmit a unique
identification so that any harmful interference situation, should one occur,
could be quickly identified and remedied.‖234 A concern, however, is that the
FCC‘s rules address interference only after it occurs and, as a result,
contradicts one of the FCC‘s core responsibilities of managing use of the
spectrum to prevent such interference.235 In addition, it has been suggested
that after-the-fact enforcement will deter investment in the wireless industry
due to the uncertainty surrounding the time-consuming and inadequate
remedies. 236 If the goal of the new FCC rules is to ―prevent‘ harmful
interference and allow for harmonious spectrum sharing, ex post remedial
action might not adequately provide the protection that opponents have
demanded.
However, the FCC has assured that that rules for pre-screening
certification and geolocation/database and spectrum sensing technologies will
effectively protect incumbent licensees from potential interference and help
remedy potential interference should it occur. 237 For example, registration
with the database system and adaptable power control requirements, which
mandate the minimum power levels for which the devices can operate, have,
among other requirements, been determined by the FCC to provide sufficient
231. 47 C.F.R. § 15.105(b) (2010); Second Report and Order, supra note 3, at 86–87.
232. 47 C.F.R. § 15.105(b).
233. SECOND REPORT AND ORDER, supra note 2, at 2, 3; 47 CFR § 15.715(j) (―The database must have
functionality such that upon request from the Commission it can indicate that no channels are available when
queried by specific [white space devices].‖). This would allow for the FCC to shut down white space devices
that are causing or expecting to cause interference. See Doug Lung, White Space Rules Show FCC Interference
Fears, TV TECH., Nov. 21, 2008, http://www.tvtechnology.com/article/69304 (discussing the concerns about
the impact white space devices will have on TV viewers); Dopplick, supra note 184, at 4 (stating the
deficiencies of the FCC enforcement action in the event of ―harmful interference‖).
234. Second Report and Order, supra note 3, at 39.
235. Brief of The Association For Maximum Service Television, Inc. and The National Association Of
Broadcasters as Amici Curiae Supporting Commission, Fostering Innovation and Inv. in Wireless Commc‘n
Mkt, & Nat‘l Broadband Plan for Our Future, GN No. 09-157 at 10–11.
236. Id.
237. Second Report and Order, supra note 3, at 3.
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protection against interference and allow for safe investment in the newly
available open spectrum.238
As mentioned, a licensee, by obtaining a license, is afforded protection
from harmful interference which might be caused by other users of the
spectrum.239 One of the primary conditions to operation under Part 15 is that
the device operator must immediately correct whatever interference is caused,
even if correction of the problem requiring ceasing operation of the device
causing the interference.240 Therefore, if interference does occur despite the
safeguards put in place, the FCC needs a detailed standard of what constitutes
―harmful‖ interference in the context of unlicensed white space access that will
put users of the white space spectrum on notice of when required remedial
measures must be taken to mitigate the interference. Database administrators,
incumbent licensees and white space device users and manufacturers should
clearly understand the definition of ―harmful interference‖ along with the
incumbent‘s spectrum rights and the limitations that the unlicensed devices are
required to respect. The technical requirements for unlicensed devices are
thoroughly outlined in the FCC‘s rules and provide a basis that users of the
white spaces can follow; however, an objective standard for determining the
limits of ―harmful interference‖ would obviate the need for court intervention
to determine the boundaries.
In addition to more clearly defining the standard of harmful interference,
the FCC can also require that any interference be immediately reported upon
its occurrence. The third party database administrator appointed by the FCC is
responsible for assuring that the information entered into the database is
correct and up-to-date in order for the unlicensed white space device to
accurately detect other services on the television spectrum.241 The registration
information provided by each device will assist in identifying the source of any
interference to licensed services that occur. As a result, the database
administrator should be charged with notifying the FCC of the violating device
and the incumbent licensee if interference occurs.242 This would immediately
place all interested parties on notice of the interference and allow the FCC to
remove the device from the spectrum and/or market and impose any penalties
it deems appropriate.243
The FCC‘s Second Report and Order has suggested this approach for the
white space databases as a way to ensure that white space services are fair and
reasonably priced; however, these third party administrators need to be
carefully selected and utilized to leverage existing standardized
238. Id.
239. See 47 U.S.C. §§ 302(a–b), 303(f), 303(m)(1)(E) (2000) (establishing the Commission‘s rights to
protect licensed users from interference).
240. See 47 C.F.R. § 15.5 (2010).
241. Second Report and Order, supra note 3, at 71–72.
242. Id. at 116–17. The Second Report and Order suggests that the database administrator must report
the registration information to the device causing interference only if the FCC asks the database administrator
for this information. Id.
243. The FCC, through its Enforcement Bureau and with consultation with the OET, investigates
complaints of interference and takes appropriate action with all cases of interference. Id. at 128.
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communication protocols and become the driving force in the development and
adoption of a safe and enduring white space standard.
B.
Penalties and Enforcement
The FCC has recognized that the rules lack in specifying the legal
liabilities of those developing and operating unlicensed white space devices
and has stated that the party responsible for causing harmful interference
―will . . . be responsible for rectifying the problem and assume the cost.‖ 244
Yet the rules do not delineate how costs will be assessed or how disagreements
over harmful interference or compensatory damages should be handled. This
is not the first instance where the FCC has failed to clearly define the extent of
responsibility for actually remedying interference.245 In the Second Report and
Order, the FCC suggests that some companies have voluntarily agreed to
correct any harmful interference caused based on ―good business‖ practice
concerns. This suggests that outside of those companies who will voluntarily
cooperate to manage interference, the only remedy available to licensees and
consumers of licensed services for disrupted signals caused by white space
devices operating on the spectrum is a legal or administrative action for
compensatory damages.246 These routes to terminate interference can be costly
and time-consuming for those harmed by the interference. Alternative dispute
resolution techniques may be an efficient and less burdensome way to resolve
disputes regarding harmful interference.247 The FCC or a dispute resolution
forum could thereinafter be authorized to award damages or injunctions to
inhibit continued harmful interference.248
Cases involving interference under Part 15 of the FCC‘s rules are very
rare.249 Therefore, it is hard to predict or analyze with certainty how the FCC
evaluates interference caused by unlicensed devices or how the FCC penalizes
the party causing interference. Regardless, a prudent recall process and a clear
exposition of fines and penalties for violations of the new FCC white space
rules is necessary.250 Penalties related to specific violations must be clearly
defined and publicized. In the context of spectrum trespass, it has been
suggested that damages should include both compensatory damages and some
form of ―prescribed damages in cases where a party presented evidence of a
substantial deviation from the interference authorized. . .and the firm failed to
244. Id. at 129; Lung, supra note 228.
245. See Ellen P. Goodman, Spectrum Equity, 4 J. TELECOMM. & HIGH TECH. L. 217, 238 n. 84 (2005)
(describing the lack of clarity as a big problem (citing R. Paul Margie, Can You Hear Me Now? Getting Better
Reception from the FCC‟s Spectrum Policy, 2003 STAN. TECH. L. REV. 5)); see also FEDERAL COMM.
COMMISSION, SPECTRUM POLICY TASK FORCE REPORT OF THE UNLICENSED DEVICES AND EXPERIMENTAL
LICENSES WORKING GROUP 5 (2002), available at http://www.fcc.gov/sptf/ files/E&UWGFinalReport.pdf.
246. Dopplick, supra note 184, at 4.
247. See Philip J. Wesier & Dale Hatfield, Spectrum Policy Reform and the Next Frontier of Property
Rights, 15 GEO. MASON L. REV. 549, 596–97 (2008) (describing the possibilities of a dispute resolution
forum).
248. Id. at 597.
249. Kenneth R. Carter, Policy Lessons from Personal Communications Services: Licensed vs.
Unlicensed Spectrum Access, 15 COMMLAW CONSPECTUS 93, 115 (2006).
250. Id.; SECOND REPORT AND ORDER, supra note 2, at 129; Lung, supra note 233.
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take effective measures to correct the interference.‖251 This approach could be
adopted by the FCC for cases involving a claim of harmful interference on the
white space spectrum. As a suggestion, the FCC could develop a systematic
approach to determining the amount of damages caused by the harmful
interference and require the unlicensed white space operator to compensate the
licensee for the violation of the rules. Alternatively, the FCC could prescribe
statutory damages that would put white space device operators on notice of the
penalties to be imposed if harmful interference occurs.
As a regulatory creation, it is important that the white spaces rules protect
incumbent users of the spectrum while allowing new innovation to flourish.
The new FCC rules balance unnecessary regulatory burdens that could delay
development and marketing of innovative devices with necessary technical
standards designed to minimize the risk of causing harmful interference to
incumbent services. Clarity with regards to the definition of ―harmful
interference‖ and the procedure and penalties to be imposed upon violation of
the defined levels of interference would help extend the benefits and protection
provided by the FCC‘s new rules.
V. CONCLUSION
America is on the brink of revolutionizing the availability of high speed wireless internet. The FCC‘s decision on November 4, 2008, to
allow unused channels on the television spectrum to remain unlicensed has
created a once unfathomable opportunity for not only technology
companies and wireless technology entrepreneurs, but also for consumers
who have yet to acquire access to the internet or are connected at very
slow speeds. While there are still some interference issues that need to be
addressed before the gates are opened, the white space devices and
networks recently developed could be a proper way to test and address
interference concerns and allow the benefits that will result from this
decision to be carried out for the benefit of society as a whole. Once the
white spaces devices are unleashed, accessibility to the internet at higher
speeds and lower costs will provide a level of interconnectivity previously
unknown.
251.
Wesier & Hatfield, supra note 247, at 597.