Intellectual Property Law

700 MHz and the D block

By Susan Crawford

I want to applaud Harold Feld for writing energetically about what has happened to the planned public-private partnership for creating a dedicated public safety network.  Key post is here.

The FCC paired the upper band D block (a single 10 MHz nationwide license) with 10MHz of public safety spectrum located next to the D block, and conditioned the D block license on an obligation to negotiate with public safety representatives towards the construction by the D block licensee of a nationwide public safety network.   The idea was that a robust, dedicated public safety network would be built to the specifications of the public safety community, and in exchange the commercial licensee of the D Block would be permitted to use the public safety spectrum (in addition, of course, to the D Block spectrum) when it was not otherwise needed. Absent this private participation, funding for a shared public safety network was unavailable.

Frontline Wireless, a privately held company headed by former FCC Chairman Reed Hundt, submitted a proposal along the lines eventually adopted by the FCC for the upper band D block.  In the event of an emergency, Frontline proposed that public safety would have immediate, preemptive use of the entire network.  Frontline won a substantial victory when the FCC decided to allow the D Block licensee to obtain “designated entity” small business bidding credits even if the licensee planned to operate on a wholesale basis.   Frontline dropped out before the auction, however, apparently unable to convince investors of the certainty of the enterprise.

Now Harold tells us that the leader of a competitor to Frontline may have scuttled Frontline’s chances by (in his capacity as a contractor to the public safety entity) purportedly telling “Frontline?s investors that it would cost $500 million over ten years as a flat fee to access the [public safety] spectrum.”  That appears to have driven Frontline away.

So now we have an auction in process.  How’s the D block doing?  Nothing going on.  Apparently there is no one even approaching the reserve price for that D block, and no other bidders in the offing.  All that planning is down the drain, and Harold’s position is that the auction should be stopped by the Commission while staff investigates what happened.

Meanwhile, two bidders appear to be fencing over the much-discussed C block.  Maybe it’s Verizon and Google.  We won’t know for a while.  I still think Verizon will win in the end, but it would be fine to be proved wrong.

The D Block plan always seemed a distant prospect at best, and both Frontline’s plans and rhetoric were high-flown.  But surely it shouldn’t have been blocked in this particular way from the auction - if indeed that’s what happened.  And we’re facing a lot of questions:  if this block is re-auctioned, what rules will govern it?  what will be the basis for those rules if indeed a public-private partnership is unworkable?

Full post as published by Susan Crawford Blog on January 28, 2008 (boomark / email).