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Rules Proposed for Federal Broadcast Spectrum Dispute Panel

Notice of proposed rulemaking proposes to adopt regulations governing the technical panel and dispute resolution boards

The U.S. government has proposed rules to govern panels designed to resolve disputes arising from the reallocation, or shared use, of federal broadcast spectrum bands to non-federal users.

On July 17, 2012, the U.S. National Telecommunications and Information Administration posted on the Federal Register a notice of proposed rulemaking (NPRM)—Relocation of and Spectrum Sharing by Federal Government Stations; Technical Panel and Dispute Resolution Board—which says, NTIA “proposes to adopt regulations governing the technical panel and dispute resolution boards established by Congress to facilitate the relocation of, and spectrum sharing with, U.S. government stations in spectrum bands reallocated from federal use to non-federal use or to shared use.”

President Barack Obama’s 2010 “Spectrum Initiative” seeks to reform broadcast spectrum policy seeks to attract public and private sector investment in emerging wireless broadband services and to promote the more efficient use of spectrum, according to the notice. “One of the key themes of the president’s Spectrum Initiative is the need for the U.S. government to develop new tools and provide new incentives to free up spectrum from both federal government users and non-federal licensees,” the notice says.

Consistent with that goal, the Middle Class Tax Relief and Job Creation Act of 2012 (P.L. 112-96) expanded the types of costs for which federal agencies can be reimbursed for costs associated with the planning for Federal Communications Commission auctions and relocations, spectrum sharing, the use of alternative technologies, the replacement of existing government-owned equipment with state-of-the-art systems and the research, engineering studies and economic analyses conducted in connection with spectrum sharing arrangements, including coordination with auction winners, the NPRM says.

While the technical panel’s “primary role” is to review each federal agency’s transition plan and to deliver a report on its sufficiency to NTIA and the agency, it is also to create a dispute resolution process through which any disagreements that may arise over the execution, timing or cost of transition plans can be resolved within 30 days after the request is made to NTIA.

Therefore, the NPRM “proposes regulations to govern the operation of the technical panel and the workings of any dispute resolution boards that would be called on to adjudicate disputes, should any arise, between non-federal users and federal entities during the transition period.”

The NPRM also covers the operation of the technical panel, including membership, organization and basic functions of the standing three-member panel. It says the respective agency heads of NTIA, the FCC and the White House Office of Management and Budget will appoint the initial members of the technical panel by Aug. 20, 2012, and each member serves a non-consecutive, 18-month term.