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Summary:
This report summarizes salient points of the FCC rules regarding the creation of a public-private partnership to build and manage a national communications network for public safety use. The Communications Act of 1934, as amended, empowers the FCC to set rules for auctions and to take steps to ensure the safety of the public. The FCC has used this authority to create a governance structure allowing a Public Safety Broadband Licensee to share spectrum rights with a commercial enterprise and to collaborate in the construction and management of a shared network. The two licensees and the network will operate according to requirements set out by the FCC as part of its rulemaking for the upcoming auction of frequencies within the 700 MHz band. These frequencies are being vacated by television broadcasters in their switch to digital technologies. As mandated by the FCC, the partnership is to build a shared network on spectrum capacity assigned to two separate entities. One partner will be a not-forprofit corporation, created for this purpose, that will hold a Public Safety Broadband License. The other partner will be the winning bidder for a national license, known as the D Block, that will be offered as part of the 700 MHz auction. Both licensees will be required to conform to rules set by the FCC in creating a Network Sharing Agreement (NSA). The NSA will in effect be the business plan and the contractual foundation for the shared network. The FCC has assigned itself the role of champion and protector for public safety interests, nationwide emergency communications, and interoperable networks. Under the umbrella of the Communications Act, it will undertake to monitor and regulate the actions of the Public Safety Broadband Licensee and the companies formed to manage the obligations of the D Block license holder. Congressional oversight of the public-private partnership therefore is placed squarely within the jurisdiction of the committees dealing with telecommunications. There appears to be no policy in place to bridge the gap between the FCC rules for the network sharing agreement and the laws passed by Congress that direct the Office of Emergency Communications, within the Department of Homeland Security, to put in place a national capacity for emergency communications and interoperability. These laws notably include the 21st Century Emergency Communications Act of 2006 (P.L. 109-295, Title V, Subtitle D) and the Implementing Recommendations of the 9/11 Commission Act of 2007 (P.L. 110-53). Congress may wish to evaluate whether FCC rule making is an adequate mechanism for creating a structure to govern a shared network that will serve the nation's first responders and meet other public safety needs. Another option that could provide governance of a shared network, a Congressionally-chartered corporate structure, is also discussed in this report. Although the benefits of a federal corporation must be weighed against its disadvantages, one of the benefits is the opportunity to create joint jurisdiction for Congressional oversight.
