Waxman Draft Bill Would Fund Public Safety Network with Auction Proceeds

Commerce Committee staff from both parties worked on the Waxman draft. “While the discussion draft still needs substantial work, I am glad we are finally moving down the path of auctioning the D-block for commercial purposes and using the proceeds to build an interoperable public safety broadband network,” said Ranking Member Joe Barton, R-Texas. “As 15 of my colleagues from both sides of the aisle and I said in a June 2007 letter, this is the most realistic option for making such a network a reality."

There are some important differences between the approach of the draft bill and that proposed by the FCC in the National Broadband Plan. The legislation would set up two $5.5 billion funds in the U.S. Treasury, one for construction and another for maintenance and operation of the public safety network. The two funds would be filled by proceeds from the D-block auction and a later auction of the 1675 MHz-1710 MHz and 2155 MHz-2180 MHz bands. NTIA is empowered to borrow up to $2 billion from the Treasury after Oct. 1 to establish the construction fund.

The FCC has estimated construction costs would run $6.5 billion, with operating costs as high as $1.3 billion annually by the 10th year of operations (CD April 26 p 10). The $11 billion proposed in the draft would not cover these combined costs. The Public Safety Bureau suggested a fee on all broadband subscriptions to cover the operating costs. That was not proposed in the draft legislation.

Making the two other bands available for auction, as proposed in the bill, might not be a slam dunk. The 1675-1710 MHz and 2155-2180 MHz bands have been under examination for reallocation for mobile broadband, likely for pairing with the AWS 3 band. The NTIA and FCC are just starting to look at whether part of the former could be reallocated if weather system communications now located there could be confined to parts of the band. That proposal has already run into opposition by users of these systems. The 2155-2180 MHz band contains Department of Defense and other government communications and NTIA has already concluded that the band could not be quickly reallocated for mobile broadband, since all of these systems would have to find a home somewhere else (CD June 4 p2).

The first $5.5 billion from auctions would be deposited in the construction fund and any money after that would go to the maintenance fund. Leftover construction money would be deposited into the maintenance fund, and leftover maintenance money would go back to the Treasury. The draft bill would authorize appropriation of additional money to fill each fund up to $5.5 billion in and after fiscal year 2012.

The Commerce Department, consulting with the FCC and Homeland Security Department, would set up a grant program using construction funds to build the public safety network in the 700 MHz band. Grant program rules would have to be written within six months of the law’s enactment. The grants could fund projects to construct a network using commercial and/or public safety infrastructure, or to improve existing commercial networks or build new infrastructure to meet public safety requirements. Under a matching requirement, the government would not be able to pay for more than 80 percent of a project’s eligible costs.

The FCC would administer a maintenance program to reimburse no more than 50 percent of maintenance and operational costs related to the public safety network. The commission would have to start a rulemaking to determine rules for the program no later than a year after the law’s enactment. Seven years after establishing rules, the FCC would have to submit a report to Congress on whether to continue maintenance funding 10 years after construction of the network is done. The draft bill would also allow public safety to get General Services Administration rates for communications services and devices. And it would give public safety agencies access to federal infrastructure to construct and maintain the network.

The draft would require the FCC to “take all actions necessary to ensure the deployment of a nationwide public safety interoperable broadband network in the 700 MHz band.” That would include adopting nationwide technical and operational requirements, interoperability rules, and user authentication and encryption requirements. The FCC would have to finish all of the above no later than one year after the draft bill’s enactment.

The FCC would consult with the Commerce and Homeland Security Departments, and the National Institute of Standards and Technology. Within 90 days of the law’s enactment, the FCC would have to establish an advisory board including representatives for (1) state, local and tribal governments, (2) public safety groups, (3) wireless carriers and (4) communications manufacturers. The board would dissolve within 10 years.

The FCC within one year would have to make rules allowing flexible use of narrowband, guard band and unoccupied guard band spectrum, including for public safety broadband. Public safety groups could allow access to their licensed spectrum, and the commission would have to approve the agreements. Access would only be allowed on a “secondary basis,” and all funds received would have to be reinvested in the public safety network. The draft bill also would require the FCC to report every five years on spectrum held by public safety or dedicated to the public safety network. The FCC would also report how spectrum is being used and whether more is needed. Two years after the law’s enactment, GAO would have to send Congress a report on satellite broadband’s ability to help public safety in emergencies.

CTIA applauds the committee’s “efforts to find a pairing for the AWS spectrum and for recognizing the need to bring more commercial spectrum to market” as it works on an interoperable public safety network, said Jot Carpenter, government affairs vice president. The draft “cuts to the heart of the problem that has blocked the construction of a nationwide interoperable public safety broadband network: the lack of funding,” said Tom Sugrue, T-Mobile government affairs vice president. “In one of the most challenging budget environments in memory, this bipartisan effort would ensure that public safety has the necessary funding, through the auction of D block and other spectrum, to meet the needs of first responders, as well as foster competition for new technologies, products, and services in the 700 MHz band."

Meanwhile, the National Association of Police Organizations has endorsed arguments that the D-block should be allocated directly to public safety and not auctioned, APCO said Monday. “NAPO believes that the National Broadband Plan falls short of making certain that public safety has an interoperable mobile broadband network to support not only everyday first responder activities, but also emergency prevention and response,” NAPO Executive Director William Johnson wrote FCC Chairman Julius Genachowski. “In these tough economic times, it is not practical to believe that there will be a consistent funding source to build out the nationwide network if the D-block is auctioned off for commercial purposes."

"Contrary to what was said during the FCC’s testimony before the House Appropriations Committee’s Financial Services and General Government Subcommittee last week, allocation of the D-block to public safety is the only sure way to make the National Broadband Plan a reality and to meet the demands of the 9/11 Commission Report by establishing a nationwide interoperable public safety broadband network,” said APCO President Richard Mirgon. “As more and more organizations continue to come out in support of D-block allocation and we continue to shed light on this vitally important issue, we are confident Congress and the Administration will take the necessary steps to ensure this critical asset lands in the hands of our first responders and not commercial carriers.”