Marty Stern, Partner K&L Gates LLP Broadcast Spectrum Reallocation: With Change Comes Real Opportunity

National Broadband Plan Finds spectrum shortage to meet exploding needs for mobile/wireless broadband Recommends making 500 MHz available for mobile, fixed and unlicensed use Given view of broadcast spectrum as underutilized, recommends 120 MHz coming from broadcast television bands

Broadcast Spectrum Reallocation To free up broadcast spectrum for broadband, FCC floats idea of reallocating broadcast spectrum for flexible, broadband use Today, with digital transition, broadcasters use less than their full 6 MHz allocation Idea is to relocate broadcasters to fewer, adjacent channels, and allow 2 or more to share single 6 MHz allocation, freeing up balance for auction and deployment to wireless broadband “Incentive” Auction being considered – Broadcasters voluntarily give up existing license and relocate, and get to share in proceeds from auction – New approach. This piece of it would require legislation Not surprisingly, broadcasters opposed

FCC Broadcast Spectrum NPRM FCC Releases Notice of Proposed Rulemaking 11/30/10 Proposes to allow broadcasters to share single 6 MHz channel, likely 2 per channel, required to have primary SD video feed with all obligations and benefits of current scheme Proposes to make mobile and fixed wireless services co- primary with broadcast (setting up ability to assign in the future) Seems to express preference for retaining lower, VHF bands for broadcasting, and upper UHF bands for flexible allocations Comments due March 18; Replies due April 18

Issues/Options for White Spaces TVBDs operate in unused broadcast channels In event of reallocation, however, any TVBD device operating on channel later designated for another use, has to cease operation on that channel. See 2d MO&O, para 133 Fundamental Question: So what happens to White Spaces in reallocation?

Issues/Options for White Spaces Don’t Panic. Proceeding actually presents opportunities for White Spaces While at one extreme, could push broadcasters down to VHF, and auction rest of spectrum, which would leave White Spaces in the dark, this seems unlikely Instead, NPRM silent on specific spectrum allocations or band plan, but recognizes in future FCC will optimize spectrum, selecting specific frequencies for new licensed and/or unlicensed use Also buried in Reg Flexibility Analysis (para 15): – Possibility of recovering upper portion of UHF (above 600 MHz) and designating for WCS as part of adjacent 700 MHz – Possibility of designating portion of spectrum for unlicensed use, recognizing current use of spectrum for White Spaces and NBP recommendation for creation of nationwide contiguous band for unlicensed use – Here’s your chance: Specifically seeks comment on whether new band plan should incorporate unlicensed block of spectrum, of if other bands better suited

Issues/Options for White Spaces Also consider “broadcast spectrum flexibility” as an alternative to or adjunct to reallocation Section 336 of Communications Act: – FCC has authority to grant broadcasters flexibility for channel capacity not used for primary video feed – Also provides for Treasury to get payment equivalent to what would have gotten in auction for such use FCC gave little flexibility to broadcasters, and today used for weather, traffic, and supplementary programs Broadcasters pay % of revenue

Issues/Options for White Spaces Section 336 presents significant opportunity for White Spaces Imagine if FCC gave full flexibility to broadcasters, including ability to do secondary market deals, agreements among broadcasters to reallocate, and to pool remaining spectrum for broadband use Presents opportunity for White Space providers to drive deals with broadcasters and expand available spectrum for White Spaces across ALL markets Suggest reading McDowell concurrence where he mentions Section 336 Chance to take bull by the horns and turn spectrum reallocation into significant positive for White Space providers

Questions?