CAPITAL CURRENTS: Old waiver requests never die

Tue, 06/30/2009 - 8:10pm
Jeffrey Krauss, President of Telecommunications and Technology Policy

Lawyers just appeal and appeal...

Back in 2006, a company called Clarity Media filed a waiver request under the FCC’s Cable Television Relay Service (CARS) rules to deliver multichannel digital television service at some 250 truck stops around the country. How would they do this? By using spectrum at 2 Jeffrey KraussGHz allocated for the FCC’s CARS and Broadcast Auxiliary Service.

In a rare example of rationality in anything affecting the cable industry under the Kevin Martin regime at the FCC, the waiver request was denied. But the case still goes on because Clarity has appealed, in the form of an “application for review.” Anyone could tell them that their cause is hopeless. Anyone, that is, except their own lawyers, who keep raking in the fees.

The frequency band in question is the 2025-2110 MHz band, which I have written about before (see “The other digital video transition,” December 2008). This band is used for portable electronic newsgathering (ENG) – carrying video from a remote news event back to a TV station or cable headend. While the majority of users are broadcasters, any cable operator that produces its own news programming is also eligible to use this band for portable CARS transmitters.

Clarity claimed that it would be providing a “first service” to “a community of approximately 2.5 million unserved and underserved Americans,” namely long-haul truck drivers.

But in order to provide the service, Clarity needed waivers of several FCC rules. It needed a waiver of the underlying purpose of the CARS service, which is to relay signals from one point to another within a cable system. Clarity wanted to use the frequencies for direct delivery of video to customers, rather than as a relay within a network. It needed a waiver of the eligibility rule, since Clarity is not a cable TV operator, nor proposing a cable TV service. It needed a waiver of the frequency plan, which specifies that the channels must be used for mobile or portable, not fixed, operations. It requested a waiver of the rule requiring frequency coordination, the process that assures users won’t interfere with one another. It requested waivers of the rules on power limits and occupied bandwidth. Requests like these are certain to draw opposition, and they did.

Clarity promised to deliver up to 75 channels of digital video, including one called the “Safety, Security and Alert Channel,” which would publicize Amber Alerts and would post information about missing children. As a result, Clarity drew support from the Lost Children’s Network, the Missing Children Task Force and the Klaaskids Foundation.

But everyone else objected, including numerous broadcaster groups, the NCTA and NASA. NASA uses the band for uplink communications during launches of space missions. And, most recently, the cell phone industry registered its opposition. The cell phone interest is the adjacent frequency band, used for AWS by T-Mobile and others. They all complained about interference issues.

Clarity, it turned out, had done some interference tests in 2005. But according to the FCC, they were unrealistic, and in any case did not include the digital ENG links that were then being introduced. Clarity promised to turn off its transmitters when interference occurred. But the biggest problem is that portable ENG and CARS units may be dispatched and relocated without notice, and there would not be time to investigate the cause of interference that might occur during a breaking news event.

The Clarity system operates at distances up to 0.7 km (less than half a mile). Thus, it seems odd that Clarity chose the 2 GHz band. The 2 GHz band is favored by broadcasters because of the propagation characteristics of that band – the signal can travel 40 or 50 miles. In contrast, the higher microwave frequencies are typically used when short distance paths are needed, which seems more appropriate for broadcasting to a truck stop. If they specifically wanted to use CARS frequencies, 18 GHz CARS frequencies are better suited for their multichannel video plans. There might also be suitable spectrum available in the 20 to 40 GHz range. In fact, there may be spectrum at 18 GHz or above that Clarity could use without needing any rule waivers at all.

So why choose 2 GHz? Clarity was planning to use transmitters made by Loma Scientific International, a supplier of MMDS transmitters. As you recall, MMDS (once called “wireless cable”) is a multichannel video broadcasting service that is largely defunct in this country but still quite popular in South America. MMDS operates in the 2500-2690 MHz band. So the Loma equipment could most likely be used with little or no modification. At 18 GHz or higher frequencies, however, it might be necessary to develop new equipment – a much more expensive proposition.

Clarity is a subsidiary of Flying J, the largest retail distributor of diesel fuel in North America. Flying J is ranked among the top 20 in Forbes’ list of America’s Largest Private Companies, with 2008 sales exceeding $18 billion. In other words, plenty of money to pay the lawyers with, right? Maybe not. On Dec. 22, Flying J filed petitions to reorganize under Chapter 11 of the U.S. Bankruptcy Code. Ouch! But somehow the lawyers always seem to be first in line to get paid.


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