Satellite digital radio searching for novel theories of action.

• Author: Erskine, Daniel

The law "has become a conscious reaction upon itself of organized society knowingly seeking to determine its own destines." (1) Law intrudes upon new technology to regulate its operation and determine its allowable societal impact. This note focuses primarily upon the legal effect of Satellite Digital Audio Radio (SDAR), a novel technology, upon existing wireless networks and other signal receiving devices licensed by the Federal Communications Commission. Additionally, the note seeks to find theories upon which legal actions may lie to remedy the situation caused by SDAR licensees' electrical interference with wireless services providers. (2)

1. THE PROBLEM PRESENTED

   In 1997 an auction for two SDAR licenses occurred. (3) Out of six bidders, two were successful in obtaining a license. (4) One belongs to Sirius Satellite Radio, Inc. and the other to XM Radio, Inc., both of who have constructed operational centers and satellite arrays. (5) The successful bidders expended $83 million to obtain the Sirius license and $89 million for the XM Radio license. (6) Although both companies have FCC licenses, only Sirius Radio owns patents on the type of satellite configuration and certain reception enhancing devices utilized in SDAR broadcast. (7)

   Once the licenses were obtained, the FCC, in May of 1997, issued its rulemaking order establishing the regulations governing SDAR. (8) In the order the FCC pointed to a number of compelling reasons for the operation of SDAR. (9) Among the foremost was the ability of the technology to reach portions of the United States currently receiving little or no radio broadcasts. (10) The variety of broadcast proposed by the two licensees would fill the need of certain niche programming, better accommodating minority interests. (11)

   Equally important was the capability of SDAR to broadcast continuously across the entire continental United States. (12) An individual driving an automobile from New York to Los Angles could listen to the same station without interruption or interference. (13) Lastly the ability of instantaneous communication throughout the country through this system appealed to the FCC whose governing statute permits the President of the United States in time of war to appropriate radio broadcasts for national defensive purposes. (14)

   The anywhere, anytime listening convenience of SDAR has one considerable drawback--interference. The terrestrial repeaters employed by SDAR in the major metropolitan areas cause interference with other wireless services. Most notably wireless cellular services such as cellular telephones may be subject to blanket interference. (15) Such interference results when the receiver is near a high powered transmitter. The transmitter overloads the components of the receiver preventing reception of the desired signal.

   The FCC in response to these concerns issued a Special Temporary Authority Order to both SDAR licensees to coordinate with the affected services and shut down any repeater causing interference immediately. (16) Shortly after, the Commission filed a public notice to solicit commentary on proposed rules for the operation of terrestrial repeaters. (17) The outcome of this rule making will affect the future of SDAR in those areas where repeaters are necessary.

   A legal issue arises as to the liability faced by SDAR operators interfering with other licensed entities. An exploration of what, if any, causes of action may be had against SDAR licensees consumes the rest of the article. As a starting point, a brief explanation of the technologies involved in the problem follows.

2. SDAR TECHNOLOGY, TERRESTRIAL RADIO, AND WIRELESS DEVICES

   1. SDAR

      Satellite Digital Audio Radio Service is "a radio communication service involving the digital transmission of audio programming by one or more space stations directly to fixed, mobile, or portable stations, which may utilize complementary repeating terrestrial transmitters, telemetry, tracking and control facilities." (18) The satellite used in operation of SDAR is a geostationary satellite. A geosynchronous satellite is one who's circular and direct orbit lies in the plane of the Earth's equator and which remains fixed relative to the Earth. (19) More simply, a studio on Earth creates the program and transmits the audio to the space station or satellite, which relays the program to a station or receiver like the radio in your car.

      SDAR operates on the S-Band frequency at 2310 to 2360 Megahertz (MHz). (20) SDAR is divided into two segments each of 25 MHz. (21) Within these 25 MHz, 12.5 MHz may be used as a channel to produce, through spatial diversity, 33 channels of CD quality sound. (22) The two segments can produce 132 channels at present, but with advances in the technology each 12.5 MHz segment could produce 100 channels each or a total of 400 channels between the two 25 MHz segments. (23)

      Unlike FM and AM radio, the FCC does not license the individual channels within the 12.5 MHz frequencies. The FCC only licenses each of the 25 MHz segments. (24) These 25 MHz segments represent a traditional channel or frequency classification made by the FCC, and the Commission permits only the two licensees to operate at the S-Band frequency. In contrast, the FCC allows FM and AM stations to operate upon the same channel or frequency at differing powers and times. (25) The reason for diversity in licensing between SDAR and traditional FM and AM radio is a result of technological differences. (26)

      SDAR, being a satellite signal, requires a line of sight in the same way that FM radio does. The benefit of satellites is their ability to relay a signal almost any where in the country. A problem does arise in large cities like New York or Boston where tall buildings may significantly block the signal, which affects reception. As a result, SDAR utilizes terrestrial repeaters to relay the signal around these buildings. Terrestrial repeaters are basically antenna arrays that receive the signal from the satellite and redirect it toward the receiver.

   2. Terrestrial Radio

      Conventional FM radio or frequency modulation operates at 88 MHz to 108 MHz. AM or amplitude modulation radio operates at 535 KHz to 1605 KHz. (27) Divided into several channels over specific frequencies, FM and AM radio stations obtain licenses for a block of frequency within terrestrial radio's operational spectrums. FM radio constitutes 100 channels each of 200 KHz, while AM radio comprises 107 channels divided at intervals of 540 KHz. (28)

      Both types of terrestrial radio operate by producing signals from an earth based antenna. This antenna relays the signal either to other antenna arrays or directly to a receiver. The signal is not digital. Rather an audio wave impressed upon electrical waves produce the sound you listen to from your home or automobile radio. Digital terrestrial radio is possible, but as of yet has failed to become implemented.

   3. Wireless Services (WCS)

      Wireless services are radio communications providing fixed, mobile, radiolocation or satellite communication services to individuals and businesses within their assigned spectrum block and geographical area. (29) WCS permit subscribers to send and receive data and video messages through a wireless phone connection. (30) Personal assistants like Palm Pilots and Handspring Visors equipped with wireless internet capability, allowing one to send and receive emails, pictures, and other data without the necessity of jacking into a phone line, are classified as wireless devices.

      WCS operates between 2305--2320 MHz and 2345--2360 MHz. (31) The FCC delineated 128 markets into which the preceding blocks of spectrum are divided into four blocks labeled A through D. (32) Two licenses are granted per block. (33) Each block is subdivided into Major Economic Areas and Regional Economic Area Groupings. (34) Within blocks A and B are 52 Major Economic Areas, while blocks C and D house twelve Regional Economic Area Groupings. (35)

3. THE 1934 COMMUNICATIONS ACT IN THE SDAR CONTEXT

   1. History

      The events leading to Congress' adoption of the 1934 Communications Act help explain the need for the Act and what purpose it served. Radio in the American context has been subject to regulation since 1910.36 The first uses of radio were as a communicative device for the military and a safety measure in ships. In the early years of commercial radio broadcasting Congress empowered the Secretary of Commerce and Labor to issue licenses to any individual wanting to broadcast. (37) The Radio Act of 1912 provided the statutory basis for the Secretary's authority. (38) Yet, with the rapid growth of radio and the limited amount of frequencies available, many licensees interfered with each other's frequencies. (39) The Secretary sought to remedy this situation, but found he lacked the authority to regulate radio in this manner. (40) By the 1920's radio became a vibrant commercial mechanism. The 1927 Radio Act created the basis for the present regulatory scheme under the Federal Radio Commission. (41) The object of this commission was to bring order to the chaos of rampant interference. (42)

      The 1927 Act empowered the Commission to classify stations, prescribe the nature of service to be rendered, assign frequencies to stations or classes of stations, and determine the power used and time allocated to each station for operation. (43) Also, the 1927 Act instructed the Commission to catalog the location of stations, regulate the apparatus used in the production of radio signals, establish regulations to prevent signal interference, and delineate zones within the nation for stations to serve. (44) Most importantly, the FRC required licensees to sign a waiver of any propriety rights or claims upon the particular frequency assigned to the station. (45)

      The 1934 Communications Act consolidated the regulation of radio with that of telephone and telegraph services. (46) The FRC transformed in the FCC to cover the new grant of...