On February 22 President Obama signed the Middle Class Tax Relief and Job Creation Act of 2012 (P.L. 112-96) into law. Despite its name, this 101 page bill is one of the more significant pieces of legislation in the spectrum area in several years.

While trying to solve the budget crisis and the economy, Congress could time to give gifts to its favorite industries. One provision that has attracted little attention is Section 6409 which Don Evans at CommLawBog describes as

a small measure of relief in the on-going struggle to get tower modifications approved and constructed. Buried in a collection of odds and ends dumped, seemingly as afterthoughts, at the end of the law, Section 6409 requires state and local governments to approve modifications of wireless towers and base stations as long as those modifications don’t substantially change the dimensions of the existing structures.

As Don points out, this section has little legislative history and deals with preemption issues that raise serious constitutional issues. Nevertheless, local zoning and permitting issues have slowed tower construction and put excess pressure on spectrum as the only solution. Of course, the cellular industry could have tried to hire engineers and architects to develop new tower designs more acceptable to neighbors, but in this case chose back room deals on Capitol Hill. I hope it works out well for them.

GAO is given some new temporary roles in the new legislation. In Section 6408 GAO is told “ to consider efforts to ensure that each transmission system is designed and operated so that reasonable use of adjacent spectrum does not excessively impair the functioning of such system.” This task is explicitly supposed to consider receiver standards, use of adjacent spectrum, and use of guardbands. Perhaps GAO will be able to address the issue of receiver standards that FCC and NTIA have been unable to deal with. In Section 6412 GAO is also told to study the rejection of FCC licenses in the 11, 18, and 23 GHz bands.

Sect 6201-6303 deal with first responder networks and hopefully will break the impasse in this area which has endangered public safety for decades.

Sect. 6403 has the TV incentive auction favored by CTIA and condemned by NAB, presumably with compromises to try to pacify both. The mysterious “unlicensed auction” has disappeared.

Sec. 6406 requires an NTIA study to determine if the U-NII band can be expanded to cover 5350–5470 MHz and 5850–5925 MHz .

Sect. 6601 and 6002 end the odd saga of the Telecommunications Development Fund which was created in the Telecommunications Act of 1996, 47 USC 614, to fund private sector telecom R&D projects with revenue that was a byproduct of FCC auctions. While perhaps a good idea, TDF was implemented badly with declining transparency. For example, search the FCC website for information on it and see how information has decreased over the years to almost no new information. TDF itself seems to be in a serious state of denial about where its funding came from - federal resources. The presence of an FCC-appointed board member at TDF has created serious appearances of conflict of interest and it is just as well that Congress is ending federal funding and granting in dependence to this group. Spectrum Bridge is a recipient of TDF funding and that creates an appearance that it gets unequal treatment from FCC.

Section 6701 expands the role of OMB in federal spectrum management which is a major improvement since the current legislation under which NTIA functions creates a basic conflict about whether NTIA is supposed to focus on the public interest in the needs of the federal spectrum users. There are created within NTIA 2 new entities: the “Technical Panel” and the Dispute Resolution Panel” to deal with federal spectrum relocation issues. Both panels have 3 members: one appointed by FCC, NTIA, and OMB. There is no requirement that they be federal employees, but there is also no pay for these positions. Guess what will happen? In any case, it is a move in the right direction.

Tags: Spectrum policy, NTIA