Much ink has been spilled to date on the question of whether and how, and under what conditions, Wi-Fi and LTE unlicensed technologies can peacefully co-exist in existing and new unlicensed bands.  I don’t propose to add to that growing body of literature.  I write instead to endorse a path forward: One that side-steps the prolonged battle of the interference testing that is currently underway; one that walks back from the invitation to the FCC to crawl inside the inner workings of new LTE unlicensed technologies to examine everything from received energy to exponential back-off mechanisms; and one that was originally proposed by Harold Feld in his epic multi-installment blog on this issue.

I start from the battle lines as currently drawn.  Wi-Fi proponents have asserted, and appear to fervently believe, that LTE unlicensed proponents are completely indifferent toward Wi-Fi services deployed in bands like 5 GHz, and are prepared to launch new LTE unlicensed services that will destroy them.  As a result, Wi-Fi proponents have engaged in a multi-front campaign against the new LTE unlicensed technologies at the Commission, on the Hill and at football stadiums across the country – focusing, at least at the outset, on LTE-U but reserving some healthy skepticism for LTE-LAA as well.

LTE unlicensed proponents have responded with a clear demonstration that their new unlicensed devices will fully comply with Part 15 of the FCC’s rules and they have provided a detailed catalog of reasons why they believe the Wi-Fi proponents are wrong and their fears badly misplaced.  They have also pointed out that there appears to be no way to meet the ever-changing threshold of co-existence proof that the Wi-Fi proponents are demanding.

And while the proponents advance their arguments, the FCC is in the middle, trying to referee a debate that continues to digress down rabbit holes, increasingly untethered from some pretty important fundamental propositions about unlicensed services.

Unlicensed spectrum – which has been called the sandbox for entrepreneurship and innovation – plays an increasingly important role in our mobile and interconnected world.  Unlike licensed spectrum, which comes with high costs and significant regulatory burdens, unlicensed spectrum has long held out the promise of permission-free access with minimal regulatory oversight – an approach that facilitates experimentation and innovation by all and for the benefit of all.  To renege on that promise would be to undermine the core thesis of the unlicensed success story to date.

It is also a widely-held belief that any innovator, entrepreneur or consumer should be able to gain access to and rely on unlicensed spectrum as long as they comply with Part 15 rules.  Part 15 requires that users of unlicensed spectrum accept the potential for congestion and the type of interference generally experienced in a crowded RF environment.  But there is an implied notion that all users of the unlicensed commons will act in good faith and will conduct themselves reasonably and play fair.  In the same way that while all are entitled to use a public park and must tolerate crowds and noise, it is well understood that one park lover is not entitled to bar others from the park, or throw them off a park bench, or fling rocks at them while they picnic.

Given these propositions, I agree with Mr. Feld that the answer to the Wi-Fi / LTE unlicensed debate should not be in new rules or regulations around the use of unlicensed bands – the very existence of which would redefine the unlicensed experience to the detriment of innovators and users.  The answer instead should be found in the FCC’s existing authority to protect wireless services authorized by the 1996 Telecommunications Act from interference that is intentional or malicious.

Section 333 of the Act states that “No person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this chapter or operated by the United States Government.”  This section has long provided the Commission with the authority to police interference into licensed operations and, more recently, albeit with some controversy, has been relied on by the FCC to police conduct in unlicensed bands.

If this provision were broadly interpreted as applying to licensed and unlicensed services alike, it could provide protection against the very type of apocalyptic results that the Wi-Fi proponents fear.  It could stand for the proposition that, while no existing unlicensed technology is entitled to any specific incumbency protections, no new unlicensed technology will be permitted to do the spectral equivalent of throwing existing users off park benches or flinging rocks at them.

As applied to the LTE unlicensed debate, it could mean that LTE unlicensed proponents would be expected to listen and respond in good faith to co-existence concerns, but they would not be required to adopt specific protocols, achieve standardization in any specific governing body, or remain mired in some endless loop of interference testing before deploying.  As long as devices employing new technologies comply with Part 15 rules and operate in a manner consistent with the sharing of unlicensed spectrum with other devices on a fair basis – accepting interference, but not intentionally or maliciously interfering with other users of the spectrum – proponents of new technologies should be free to innovate and deploy in any available unlicensed bands.

Part 15, however, would not provide a safe harbor from Section 333 scrutiny.  In the event that new unlicensed devices indeed act maliciously toward established unlicensed services, the FCC would have the authority under Section 333 to require the operators of such devices to drop their rocks and back their devices down to a friendlier posture.

I acknowledge that this interpretation of Section 333 is novel and not without baggage.  Accordingly, the FCC will likely need to open a rulemaking to provide greater clarity around its interpretation of terms like “willfully” and “cause interference” in the unlicensed context.  Also, as Commissioner O’Rielly points out, the use of the word “station” in the section needs further consideration and review.  But a rulemaking can sort these types of issues out and provide the interested stakeholders with the needed clarity and guidance.

Finally, reaching clarity on these issues seems to us to be essential.  If this country is to take the fullest advantage of the new unlicensed bands being brought forward for shared use, technologies beyond those discussed here will no doubt emerge that will also seek to share the unlicensed commons.  We need a clear framework that will allow those technologies and the innovators behind them to continue to deliver on the promise that unlicensed spectrum offers – to innovate free from burdensome regulatory requirements and exclusionary conduct by incumbents for the benefit of wireless consumers everywhere – while ensuring existing users that all will be required by the FCC to act reasonably and play fair.

Share this