UTC Asks Full Commission to Review Higher Ground Order

February 21, 2017–The Utilities Technology Council has asked the full FCC to review an order and authorization granted to Higher Ground LLC last month.The order by the International and Wireless Telecommunications bureaus and Office of Engineering and Technology authorizes Higher Ground to deploy up to 50,000 mobile satellite earth stations in the 5925-6425 megahertz band. The Fixed Wireless Communications Coalition has asked the FCC to stay the order and authorization pending action on its application for review (TRDaily, Feb. 10). The Association of Public-Safety Communications Officials-International and the Enterprise Wireless Alliance also have submitted applications for review (TRDaily, Feb. 17).

“The Order is contrary to the record in the proceeding, which overwhelmingly opposed the application and the waiver,” UTC said in its application. “As the record shows, Higher Ground’s mobile operations threaten to cause massive and widespread interference to thousands of fixed service microwave systems that are used by utilities across the country to support mission critical voice and data communications. These systems are used to direct personnel working in the field and for substation SCADA, protective relaying, corporate data network traffic, voice tie trunks, and utility land mobile radio traffic that ensures the safe, reliable and secure delivery of essential electric, gas and water services to millions of Americans, including military installations, federal buildings, bridges, tunnels, railways, traffic control systems, airports, hospitals, police departments, fire departments, emergency medical services and offices of emergency management.

“Any interference to these communications systems can have catastrophic consequences for safety of life and protection of property. Despite the threat of interference to these mission critical communications systems and objections on the record, the Order requires only that Higher Ground correct interference after the fact and declines to require Higher Ground to accept responsibility and liability for any reported interference it causes,” UTC added. “The public interest is not served by granting Higher Ground’s application, nor is there a sufficient basis for waiving the rules. Clearly the broader public interest in protecting these fixed service microwave systems from interference outweighs the narrow interest of Higher Ground. In addition, there are alternative spectrum bands in which Higher Ground could operate on a mobile basis without a waiver. The Bureaus should not have granted a waiver because it would frustrate the underlying purpose of the rules, which prohibit mobile operations in the 6 GHz band and which require prior coordination of all operations to prevent interference.”

UTC also said that “Higher Ground failed to show any unique circumstances that would support a waiver of the rules, particularly given the significance of the potential for interference. The Bureaus should have denied both the application and the waiver. At the very least, the Bureaus should have initiated a rulemaking to provide reasonable notice and an opportunity for parties to comment and fully address the complex issues that were raised in the proceeding. The Order fundamentally effects a change in the rules that will affect all fixed microwave systems across the entire 6 GHz band and across the nation for the foreseeable future. It allows mobile operations in a band that prohibits mobile operation, and it exempts Higher Ground from obtaining prior coordination – process that prevents interference. This is far beyond a narrow waiver. As such, the Bureaus should have initiated a rulemaking, rather than grant a waiver of the rules.”

UTC also said that “the Order is contrary to the intent of Congress, because it was issued in the waning days of the last Administration and it addressed controversial and complex issues. The Order is exactly the kind of controversial and complex decision that the leadership of the oversight committees in the U.S. House of Representatives and the Senate told the FCC that it should not make until after the new Congress and new Administration took over. Given the opposition on the record and the Bureaus’ refusal to conduct a rulemaking, the Order clearly was controversial and was rushed out the door in the eleventh hour of the last Administration. Accordingly, the full Commission should immediately revoke and rescind the Order, just as it revoked other midnight regulations that were issued during this period.”

Meanwhile, Higher Ground has filed an opposition to FWCC’s stay request.“The spectrum involved here, C-band frequencies at 5925-6425 MHz, comprises a 500 megahertz swath that includes unoccupied frequencies across virtually the entire country. Higher Ground has developed a way to realize more intensive, non-interfering use of those frequencies to provide consumer messaging and IoT services via a satellite transceiver embedded in a protective case attached to a smartphone,” Higher Ground said. “Higher Ground will operate at very low power levels in 4- or 8-megahertz channels that do not interfere with Fixed Service (‘FS’) microwave point-to-point receivers and satellite links operating in the band. As the Bureaus concluded, Higher Ground’s ‘use of a single database that authorizes and manages the devices within a single network is relatively simple,’ and ‘Higher Ground has demonstrated that its proposed system should prevent or minimize the risk of harmful interference to FS operators in the 5925-6425 MHz frequency band.’

“The Motion does not present any new facts or law in support of FWCC’s position or refute the underlying facts of Higher Ground’s proposed operations,” Higher Ground added. “As such, FWCC will not succeed on the merits of its concurrently filed Application for Review. Further, FWCC fails to show any irreparable injury or otherwise satisfy the prerequisites for issuance of a stay, and the balance of equities strongly favors denying the request for stay.” —Paul Kirby, paul.kirby@wolterskluwer.com

Courtesy TRDaily