Carlin Could Curse in TV White Spaces

WASHINGTON: George Carlin was before his time when it came to using foul language on the air. The late comedian would be able to let fly on unlicensed devices in TV white spaces.

Federal indecency standards apply to TV and radio broadcasts because of their presumed ubiquity. No such rules apply to the spectrum that carries them, so white-space transmissions will not be subject to regulations. Consequently, rules that apply to video content transmitted over the air by a broadcaster do not now apply to the same content transmitted between broadcast signals to unlicensed devices.

“For example, if a video program is broadcast over-the-air on a TV channel by a television station, it is subject to numerous restrictions and regulations, including the prohibition on indecent material, limitations on commercials in children’s programming, rules governing political advertising, etc.,” writes Brendon Holland of law firm Davis Wright Tremaine LLP.

“However, if a video program is transmitted through the Internet, which is then, in turn, streamed into the home via a vacant television channel, there would be no such restrictions, despite the fact that it is an identical video program that is being delivered via the same television spectrum,” Holland said. “In that scenario, it would be possible to essentially provide a broadcast-like service on a broadcast TV channel but with no broadcast restrictions and with no license.”

Holland’s observation comes a week before the Federal Communications Commission is set to deliver the final rules on the use of unlicensed devices in TV white spaces. The commission will consider a second Memorandum Opinion and Order on white spaces at its regular monthly meeting Sept. 23. The ruling is expected to resolve issues raised since the initial order was adopted in November of 2008.

And issues aplenty were raised. More than 300 comments, petitions and ex parte notifications have been filed with the commission in the last year. The two main broadcast lobbies--the National Association of Broadcasters and the Association for Maximum Service Television--have hammered hard for modifications of the 2008 rules. Their primary concerns are summarized in a Sept. 15 ex parte filing.

The NAB and MSTV want the final white-space rules to be paired with those governing a geolocation database that unlicensed devices would have to check for open airwaves. Database parameters, including the selection of an administrator, are currently being hashed out in a separate proceeding. The NAB/MSTV filing also contains concession language on another requirement upon which the pair had previously held fast--that of spectrum sensing.

“The bifurcation of the white spaces rules from the requirements for geolocation/database operations, particularly in light of the possible deletion of the sensing requirement, raises serious legal and policy concerns,” their filing stated, inferring a potential court challenge.

Microsoft is among those companies agitating to toss out spectrum-sensing, technology within unlicensed devices that would sniff out open spectrum. Microsoft was a member of the ad hoc White Space Coalition that rallied to open white spaces, and contributed prototype devices for FCC testing.

As of Sept. 3, the NAB and MSTV said spectrum sensing was “critical” to prevent interference with broadcast channels as well as wireless microphones. The NAB and MSTV circled the wagons in the Sept. 15 filing, asking that two channels be set aside for licensed wireless mics. Unlicensed mics, primarily those in churches, schools and theaters, would evidently be on their own.

Dell, a member of the Coalition, noted that unlicensed wireless mics have heretofore operated illegally in TV white spaces. Dell, represented by former FCC attorney Paul Margie, asked that unlicensed wireless mics not be granted priority over unlicensed personal communications gear.

Motorola supports elimination of sensing for wireless mics and recommends setting aside channels for them in each market.

“The separation of high-power TV band devices and general wireless microphone operation will benefit both communities,” Moto said in an Aug. 18 filing. The electronics manufacturer also advocates the authorization of multiple, independent database administrators “to encourage greater reliability, innovation and competition.”

Motorola threw in with dozens of small wireless Internet service providers in asking to increase base-station antenna height from 30 to 100 meters. WISPS now operate in the 900 MHz, 2.4 GHz and 5 GHz bands. The taller antennas would increase coverage, in some cases by 350 percent.

Returning to the content implications of white-space devices for broadcast TV, Holland said the FCC has extended program rules before. Broadcast-like services launched in Chs. 52-69 after those channels were reallocated from TV had to adhere to the rules of over-the-air TV. No such provisions would apply to TV services delivered via unlicensed WiFi operation, Holland observed.

“What effect this evolution of media and technology has on the foundation of broadcast regulation remains to be seen,” he said.

Holland’s complete analysis is available at Davis Wright Tremaine’s Broadcast Law Blog.
-- Deborah D. McAdams

September 8, 2010: “FCC to Issue Second White Spaces Order”
The order will finalize provisions for unlicensed wireless devices operating in unoccupied swaths of TV spectrum, aka white spaces.

August 18, 2010
: “Broadcasters Urge FCC to Retain White Space Spectrum-sensing Requirement”
The two major broadcast lobbies in D.C. are urging regulators to maintain a requirement that unlicensed devices employ spectrum-sensing technology.

April 22, 2010
: “Wireless Group Asks FCC to Relax White Space Rules”
The Wireless Internet Service Providers Association met with the FCC Office of Engineering and Technology to discuss changes to TV white space rules that would help wireless ISPs provide better service.

January 4, 2010: “White Space Database Manager Proposals Due”
The commission first put out a call for a database manager in late November. The database is intended to prevent interference between emerging unlicensed devices and TV stations.