The State of Michigan filed a request for waiver from the FCC to allow for construction and deployment of a 700 MHz public safety interoperable broadband network, and as part of the waiver, the State proposes to share the network with Consumers Energy and other utilities. This waiver is important and recognizes the public safety role of utilities. It is the second such waiver that has been filed with the FCC, following the lead of Nevada which partnered with NV Energy as part of a consortium proposing to operate a statewide 700 MHz public safety broadband system.  As such, it reflects the growing interest of public safety in sharing these networks with utilities. 

 

In its waiver, Michigan explained that “[e]lectric utilities protect the safety of life, health or property of Michigan citizens, as defined under Section 337 of the Communications Act of 1934, as amended, and should be allowed the use of 700 MHz next generation broadband applications and services. For that reason, MPSCS is seeking a public/private partnership with utility companies in Michigan to build-out a 700 MHz public safety network in the State of Michigan. Consumers Energy, among others, has expressed a strong interest to participate in a public/private partnership help fund the construction of a Public Safety Broadband solution in Michigan that they would have authority to use as a secondary user on the system.” Michigan also explained that utilities will “expand the user base of the network to help lower the cost of the system, will extend our emergency response capabilities in our mission to protect the public, and are an integral part of the deployment of this much needed network, as they bring the dedicated funding required for its construction in return for use of the network.” 

By way of background, the FCC has questioned whether Section 337(f) of the Communications Act can be interpreted to allow utilities to use the 700 MHz public safety broadband spectrum. That provision allocates the 700 MHz public safety spectrum for “public safety services” which are defined as services, “the sole or principal purpose of which is to protect the safety of life, health or property,” and which are provided by government or authorized non-government entities and not made commercially available to the public at large. While the FCC recognized in its National Broadband Plan that there are many public interest benefits that can be gained by allowing utilities to share the spectrum with public safety, it questioned whether its legal authority under Section 337(f) would allow such sharing. The FCC has invited comment on this issue, both in conjunction with the filing of the Nevada waiver last year and in conjunction with a Fourth Further Notice of Proposed Rulemaking regarding rules for interoperability of 700 MHz public safety broadband networks that was issued early this year. Comments filed by UTC and others on the record at the FCC widely supported allowing utilities to share the 700 MHz public safety broadband spectrum.   

 

In the Michigan waiver, the State reminded the FCC that the FCC’s National Broadband Plan supported sharing the spectrum with utilities, and it explained that sharing with utilities will promote “coordination and control between police and fire responders, and the utility responders in events involving imminent threats to the public safety from critical infrastructure.”   It also reassured the FCC that “secondary use is manageable for a utility. While it is sometimes thought of as ‘ruthless pre-emption,’ in fact it does not need to mean that at all,” because “today’s LTE technology can easily accommodate the different priority levels required for the low bit rate, ancillary fixed use applications and mobile voice and data applications utilities would utilize on the public safety broadband network.”

 

In addition to the existing 700 MHz public safety spectrum, Michigan also requested that it be allowed to use the commercial 700 MHz D-block, if it is reallocated for public safety. The combined spectrum would provide 20 MHz of spectrum that would be available for sharing with utilities, if the waiver is granted. “The additional capacity that can be provided by adding the D block spectrum to the public safety network should eliminate the need for the State to artificially limit its use of beneficial broadband applications going forward,” according to Michigan. Therefore, Michigan noted that “should Congress reallocate the additional spectrum in the D block to public safety, Michigan would subsequently seek a modification of its waiver grant to allow operation also on the D block spectrum.”