Tim Shepard wrote:

I am not sure what you mean by "everything permissible" Part 15.

There are a number of authorizations in 47 CFR 15 which allow intentional radiation. All such authorizations are (I have been told)properly called license-by-rule authorizations. I've read many of them (all of them as of the early 1990s) and *none* of them say anything approximating "everything permissible" (as much as I might wish that one or more would).When I've used the term "unlicensed", I have sometimes been corrected with the explanation that there are *no* unlicensed intentional radiation allowed (by US law and by treaty), and that the various specific authorizations in 47 CFR 15 sub-parts C, D, E, and F (which all starts at 47 CFR 15.217) are all properly called "license by rule".But I expect that when you say "license by rule" you must mean something more in particular, some constraint or rule which is not already in any of the existing 47 CFR 15 rules.Could you be more specific about what additional rule or constraint you are considering? Tim, this is an excellent question. Unfortunately, it takes a long answer. It is entirely grounded in the peculiarities of the Communications Act and FCC precedent. I will avoid legal cites here, but if folks want them contact me.

Section 301 of the Communications Act states "No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio" without a license from the FCC.

As early as 1938, however, the FCC was allowing "unlicensed" uses at low power. The justification for this was that because these devices operate at such low power, they had no interstate effect and therefore fell outside the licensing requirement of 301, which at the time required licensing only of _interstate_ use of "radio."

Much of this had to do with the legal climate of 1938. Agency law was still developing, and the Supreme Court a few years previously had only begun to expand the ability of Congress to closely regulate commerce and the Supreme Court had only just affirmed the constitutionality of licensing on what would become known as the "scarcity doctrine." But even as late as the 1950s, the FCC continued to justify "unlicensed" access on the grounds that it was purely _intra_state and, because of its limitations, could not have any effect _inter_state effect and therefore fell outside of Section 301. The FCC continued to certify equipment under Section 302 (47 USC 302a), which gives the FCC a separate authority to regulate devices that either intentionally emit RF energy (called "intentional transmitters") or do so as a consequence of functioning ("unintentional transmitters").

In 1982, Congress amended Section 301 to include intrastate emissions. Congress acted to make it easier for the FCC to crack down on CB users that were jacking up their power, but resisting prosecution by the FCC on the grounds that the use was purely intrastate.

In the same legislation, however, Congress decided to make life easier for people to use CBs legally. Technically, everyone using a CB radio was supposed to fill out a postcard license application and mail it back to the FCC, but no one did. Also, people wanted to be able to develop more remote control technologies without having to apply to the FCC for every new device or use.

So Congress created Section 307(e). 307(e)(1) states that "notwithstanding any license requirement established in this act...the Commission may by rule authorize operation of radio stations without individual licenses" in four radio services: (a) citizen's band radio service; (b) radio control service; (c) certain kinds of aviation service; (d) certain kinds of maritime service. Congress gave the FCC flexibility to define the relevant services, and Section 307(e)(3) says that these services mean whatever the FCC says they mean. The citizens band and radio control rules are in Part 90 of the FCC's rules.

Congress said nothing about the existing devices operating under the old intrastate theory. In theory, all these devices were now illegal or, at the least, the FCC needed to find a new justification for them. But no one ever made this argument and the FCC never really reexamined its authority.

In 1987, the FCC proposed a radical change to unlicensed access and, in 1989, created the modern Part 15 rules. As 47 CFR 15.1 states, the Part 15 "sets out the regulations under which an intentional, unintentional, or incidental radiator may be operated without an individual license." Sub-part C sets out the rules for intentional radiators, going frequency band by frequency band of what is permitted and what isn't. However, under the 1989 revision to the rules, one thing remains true universally of all emitters using Part 15: any emitter operating without an individual license must accept any interference from any other licensed service, and cannot itself interfere with any licensed service. Nor does the FCC regulate the general nature of a service provided by a device authorized under Part 15 Sub-part C, provided it meets the technical certification requirements set forth in Part 2 and Part 15 of the FCC's rules.

This is in marked contrast with the licensing by rule of Section 307(e). Devices licensed pursuant to 307(e) are entitled to as much or as little protection and exclusivity as the Commission may wish to define by rule. But the use of a device operating under 307(e) is limited to what the rules say. That is the price of exclusivity: no flexibility.

So, as the FCC itself has explained, this has created a three level system. At the top of the pyramid are "licensed services." The defining mark of "licensed services" are that individual transmitters are licensed. Under Section 301, individual licensees have enforceable legal rights based on these licenses. While a licensee may be subordinate to another licensee, any licensee is protected against any unlicensed use.

But the trade off is a complete lack of flexibility unless granted as part of the license. When I was in private practice, I once had an emergency call from a client who was demonstrating a device that operated pursuant to a special temporary emergency licenses. A part had been damaged in transit, and the device now operated at a slightly different frequency. Since they had a demo that day, they could not get a new part. I had to call the FCC and fill out a bunch of forms for an emergency alteration to the special temporary authority.

The next level of the pyramid is "license by rule" under 307(e). These services receive some of the benefits of individual licensing. That is to say, they do not share with anyone else the FCC makes them and they can exclude any Part 15 device that causes interference. But 307(e) does not enjoy the same exclusivity as a standard licensee. They must accept any "interference" from similarly situated licensees and, usually, from any exclusive licensees while protecting exclusive licensees. And they have the same limits on flexibility as exclusive licensees. The service is limited to whatever the FCC defines in its rules, and any change must be approved by a rule making process that will impact the entire class of 307(e) licenses.

At the bottom is Part 15 sub-part C. It takes any interference from anywhere and must protect any 301 or 307(e) license from interference. But as long as you stay within the certification constraints, you can do whatever the heck you want. This is why IEEE and anyone else can crank out whatever standards they want, and why RFID manufacturers can embed as much functionality as they can in the device. As long as they comply with the certification rules, they can use it for anything.

Now the FCC has never done a good job explaining where it's authority for Part 15 comes from. Most recently, it has relied on its authority under Section 302. I have a much longer piece that I will eventually get out on the various sources of FCC authority for Part 15, but that goes beyond what I can do here and besides, I'd like to get that one in publishable shape.

I fear that you might have no particular rule in mind, but hope for*some* kind of rule to ensure that only good things (and no bad things) can happen in the future. I hope that you have a (or some)concrete additional rule(s) or constraint(s) in mind that could be understood in technical terms and that we can attempt to evaluate on its (their) technical merit.My concern wasn't to try to ensure only good things and no bad things. That is impossible.

But I have heard some WISPs, notably at the FCC Rural Forum in November '03, complain that they cannot guarantee a sufficient quality of service because 2.4 GHz has too many devices operating in it and that what is needed is a slice of spectrum that is exclusive to broadband use but not necessarily exclusive to a single licensed transmitter.

MAP has a longstanding institutional concern, going back to 1998, that cable and ILECs will become a dominant duopoly (or monopoly in some markets) in broadband. This is bad from a First Amendment perspective (we feel) because it allows a few powerful gatekeepers to control the flow of information. Exclusive licensees or power line broadband providers provide little relief. While this may help with competitive pricing, it is still a small enough and collusive enough industry to provide incentive to screen out potentially disruptive technologies or content. For example, while the cell phone companies compete on price, they generally offer the same types of services and do not permit potential competitors to offer new services over their spectrum.

So I decided I would float an idea: what about taking some spectrum that is now used for FRS or other Part 90 services -- or someplace that does not permit significant Part 15 activity -- and pushing for exclusive use for data networking. This arguably falls under either the citizens band or radio remote service, depending on if the FCC can be so persuaded. It need not lock in any particular protocol or technology, but it would lock in particular uses as the cost of exclusivity.

And indeed, whether CB service can be stretched so far, even with the broad grant of authority given the FCC by 307(e)(3), is questionable. It would be no easy fight, either. And the prize may very well not be worth it. But it may prove a useful transitional measure in some areas. In particular, in our current fight in Docket No. WT 03-66. We are pushing to extend the 2.4 GHz underlay rules to the 2.5-2.69 band. It may be easier to resolve certain political fights if the rules for that underlay are more restrictive that what is permitted under 2.4 GHz.

Now it is perfectly reasonable to argue that any sort of interim or compromise approach is a bad idea for several reasons. For one thing, it arguably makes it easier for the FCC to say "no" on the big changes if it can do small ones that it can trumpet as serving the public interest. For another, it may be that the cognitive radio proceeding or the interference temperature proceeding offer better ways to address the broadband issue and benefit all unlicensed use of the spectrum. It may also be argued that the potential payoff for an effort to license by rule is so small compared to the effort required that those resources are far better devoted to trying to make broader changes.

And, of course, everyone is free to do what they want. WISPA or individual WISPs may think its a great idea, even if we at MAP never do it.

(And forgive me if I have failed to keep up with the language and am stuck on last year's definition of "license by rule". If that is the case, someone please explain to me exactly what "license by rule" means this year.)No problem. There's a lot of jargon floating around and, for all the simplicity of Part 15, the legal issues can be confusing, obscure, and come with its own set of jargon.

Harold Feld