Marty Stern, Partner K&L Gates LLP marty.stern@klgates

1. Broadcast Spectrum Reallocation: With Change Comes Real Opportunity Marty Stern, Partner K&L Gates LLP marty.stern@klgates.com

2. National Broadband Plan • Finds spectrum shortage to meet exploding needs for mobile/wireless broadband • Recommends making 500 MHz available for mobile, fixed and unlicensed use • Given view of broadcast spectrum as underutilized, recommends 120 MHz coming from broadcast television bands

3. Broadcast Spectrum Reallocation • To free up broadcast spectrum for broadband, FCC floats idea of reallocating broadcast spectrum for flexible, broadband use • Today, with digital transition, broadcasters use less than their full 6 MHz allocation • Idea is to relocate broadcasters to fewer, adjacent channels, and allow 2 or more to share single 6 MHz allocation, freeing up balance for auction and deployment to wireless broadband • “Incentive” Auction being considered – Broadcasters voluntarily give up existing license and relocate, and get to share in proceeds from auction • New approach. This piece of it would require legislation • Not surprisingly, broadcasters opposed

4. FCC Broadcast Spectrum NPRM • FCC Releases Notice of Proposed Rulemaking 11/30/10 • Proposes to allow broadcasters to share single 6 MHz channel, likely 2 per channel, required to have primary SD video feed with all obligations and benefits of current scheme • Proposes to make mobile and fixed wireless services co-primary with broadcast (setting up ability to assign in the future) • Seems to express preference for retaining lower, VHF bands for broadcasting, and upper UHF bands for flexible allocations • Comments due March 18; Replies due April 18

5. Issues/Options for White Spaces • TVBDs operate in unused broadcast channels • In event of reallocation, however, any TVBD device operating on channel later designated for another use, has to cease operation on that channel. See 2d MO&O, para 133 • Fundamental Question: So what happens to White Spaces in reallocation?

6. Issues/Options for White Spaces • Don’t Panic. Proceeding actually presents opportunities for White Spaces • While at one extreme, could push broadcasters down to VHF, and auction rest of spectrum, which would leave White Spaces in the dark, this seems unlikely • Instead, NPRM silent on specific spectrum allocations or band plan, but recognizes in future FCC will optimize spectrum, selecting specific frequencies for new licensedand/or unlicensed use • Also buried in Reg Flexibility Analysis (para 15): • Possibility of recovering upper portion of UHF (above 600 MHz) and designating for WCS as part of adjacent 700 MHz • Possibility of designating portion of spectrum for unlicensed use, recognizing current use of spectrum for White Spaces and NBP recommendation for creation of nationwide contiguous band for unlicensed use • Here’s your chance: Specifically seeks comment on whether new band plan should incorporate unlicensed block of spectrum, of if other bands better suited

7. Issues/Options for White Spaces • Also consider “broadcast spectrum flexibility” as an alternative to or adjunct to reallocation • Section 336 of Communications Act: • FCC has authority to grant broadcasters flexibility for channel capacity not used for primary video feed • Also provides for Treasury to get payment equivalent to what would have gotten in auction for such use • FCC gave little flexibility to broadcasters, and today used for weather, traffic, and supplementary programs • Broadcasters pay % of revenue

8. Issues/Options for White Spaces • Section 336 presents significant opportunity for White Spaces • Imagine if FCC gave full flexibility to broadcasters, including ability to do secondary market deals, agreements among broadcasters to reallocate, and to pool remaining spectrum for broadband use • Presents opportunity for White Space providers to drive deals with broadcasters and expand available spectrum for White Spaces across ALL markets • Suggest reading McDowell concurrence where he mentions Section 336 • Chance to take bull by the horns and turn spectrum reallocation into significant positive for White Space providers

9. Questions? marty.stern@klgates.com