In Re Application of CITY OF ST

In Re Application of CITY OF ST. LOUIS (MO.), METROPOLITAN POLICE DEPARTMENT FOR

MICROWAVE FACILITIES IN THE 2500-2690 MHZ BAND

File No. 16068-PP-59X

FEDERAL COMMUNICATIONS COMMISSION

21 F.C.C.2d 475 (1969)

November 25, 1969

[*475] The Commission by Commissioners Bartley, Robert E. Lee, Cox, Johnson, H. Bex Lee and Wells, with Commissioners Johnson and H. Rex Lee dissenting and issuing statements, granted the application by city of St. Louis Metropolitan Police Department to operate microwave facilities in the 2500-2690 MHz band in connection with police activities.

DISSENTING STATEMENT OF COMMISSIONER NICHOLAS JOHNSON

I join in the dissenting statement of Commissioner H. Rex Lee.

I recognize fully the needs of the St. Louis Police Department. I applaud its imaginative proposal. I deeply regret our inability to respond to it intelligently.

But I believe the Commission should deny the application of the St. Louis Metropolitan Police Force for spectrum space in the 2500-2690 MHz band until this Commission completes its review of the service being provided by the present users of the space, the Instructional Television Fixed Service (ITFS) -- a review which is now 3 years overdue. At the least, I would impose a freeze on the acceptance of future applications in this band.

I cannot, however, agree with one statement in Commissioner Lee's statement. He says: "I recognize the critical needs of the other users for additional spectrum space, but they can be better accommodated in a different part of the band." Given the facts before us, I cannot make such a determination. In fact, given the past record of this Commission, and the facts which we have concerning the spectrum in general, no spectrum management determinations can be made in a proper manner. I have made the point before: Without rational and consistent criteria for choosing between spectrum users, without intelligent long-range planning, and without data on the present spectrum utilization, it is impossible for this agency to properly perform its role as the Nation's spectrum manager. See, e.g., In the Matter of Lehigh Cooperative Farmers, Inc., 10 F.C.C. 2d 315, 317, 11 P & F Radio Reg. 2d 1560, 1562 (1967).

I cannot at this time decide that giving spectrum space to ITFS is of greater value to this Nation than giving it to any of the many other [*476] users. Perhaps after the completion of the review of ITFS service, I will be able to make a more informed decision.

I dissent.

DISSENTING STATEMENT OF COMMISSIONER H. REX LEE

By granting the application of the St. Louis Metropolitan Police Force for operation in the Instructional Television Fixed Service band (2500-2690 MHz), the Commission has dealt a totally unnecessary setback to the future development of this new educational technology. The majority's decision may have moved a great distance toward permanently damaging the maximum development of ITFS.

The Commission's action is deplorable in that it approved this application without acting on the overall problem of whether this hand shall be allocated for the exclusive use of educational institutions. The July 1963 "Report and Order" in docket No. 14744 (25 R.R. 1785) which created the ITFS service stated that after an initial period of 3 years, the Commission would review the use of the service by educators to determine a future course of action. It is now over 6 years, and the Commission has yet to undertake such a review.

There is nothing in the rules governing these bands which prevents other services from becoming licensees. However, this is the first such application approved since the 1963 decision. I recognize the critical needs of the other users for additional spectrum space, but they can be better accommodated in a different part of the band. I also realize some people in the Commission made an informal commitment to the St. Louis Police Department. Nonetheless, this agency should not have allowed this grant without imposing a freeze on acceptance and consideration of all other non-ITFS applications for these frequencies pending the institution and completion of the promised, but long overdue, rulemaking dealing with the future use of the band.

Several serious consequences result from today's decision. First, the Commission has suddenly opened a Pandora's box which will lead to numerous applications from other services. Secondly, the widely aclaimed work of the ITFS subcommittees in some 47 States and the District of Columbia will be seriously undermined, if not ruined. This Commission has made a farce of the Committee's proper name -- the National Committee for the Full Development of ITFS. These 1,000 member educators have worked diligently with the Commission in coordinating and planning this technology to insure that entire groups of children will not be denied access to this service because of various geographic, social, or economic reasons. Suddenly, the time and efforts of the Committee has been literally vanquished.

Since 1965, the Commission has wholeheartedly encouraged the growth of these subcommittees on the assumption that the 2500-2690 MHz band would be allocated exclusively for ITFS without sharing by other interests or services. The National Committee recently asked its members to evaluate the current and future needs for ITFS services in their geographic regions. Their comments indicated a unanimous belief in the need for setting these frequencies aside for educational purposes and a reexamination of the service at the end of a 10-year period.

[*477] If such action is not taken, the educators may loss another media resource, as they did in failing to obtain AM reservations. Then the Commission will have defaulted again in not encouraging the full use of the instructional media.

Part of the responsibility for this unfortunate situation must rest not only with the Commission but also with educators. Many educators, both on the local and Federal level, are still not aware of the educational, social, and cost benefits which flow from the use of the instructional technology. Many do not understand how the technology may be used as a meaningful part of the learning process with both the student and teacher participating, rather than as a mere frill for classroom enrichment.

Consequently, the majority of educators have not made their voices heard at the Commission. Rarely does this agency receive comments from State or local educational leaders (except, of course, through their national educational organizations) in response to proposed rulemakings or notices of inquiry in matters that should be of great importance to them, such as CATV, computers, or domestic satellites.

In this context, their rule awakening many times comes too late. When educators suddenly realize that their school districts may have lost the possibility for fully implementing a medium like ITFS, then they come knocking at the Commission's door.

I recognize that the use of ITFS and other technologies is hampered by a lack of school funds. The Educational Television Facilities Act of 1962 did not contain any provisions for matching grants for ITFS; nor did the Public Broadcasting Act of 1967 specifically mention funding for this technology. However, title III of this act did set up a Commission on Instructional Technology. It has now completed a study of this field, and that Commission's report will perhaps soon be released. Hopefully, it will recommend the implementation of ITFS. If it does, this may provide Congress with the needed impetus to release more funds for this service.

While the educational systems in this country are in a period of transition, this Commission has a paramount obligation to preserve and protect those frequencies which we know will be required to serve educational needs of present and future generations.

It is hoped that the Commission will remedy the consternation and confusion among the ITFS committees and other educators by moving quickly toward instituting the needed rulemaking and imposition of an interim freeze.