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FCC backs some 'open' wireless requirements

But critics say the move doesn't go far enough in ensuring small entrepreneurs aren't shut out of access to prime airwaves set to be auctioned off next year.

WASHINGTON--In a partial political win for Google, federal regulators on Tuesday ruled that whoever buys a portion of a prime chunk of wireless spectrum must allow Americans to use whatever mobile devices and applications they please.

As expected, the Federal Communications Commission on Tuesday approved that requirement as part of broader rules governing an auction of the coveted 700 mHz band set to occur by next year.

FCC Chairman Kevin Martin said he was "committed to ensuring that the fruits of wireless innovation swiftly pass into the hands of consumers." He added that he recognizes the rules are not necessarily what any one company wants, but "the public interest is not what any one company wants, its about serving the people."

The move is a partial nod to the "open access" campaign spearheaded by Google and consumer advocacy groups. But those groups and the two Democratic commissioners on Tuesday said they would have preferred to go farther, attaching mandatory wholesale access requirements to the airwaves as well.

The open access rules drew a rare dissent from Republican commissioner Robert McDowell, who accused his colleagues of "rushing headlong to regulate...without a sincere effort to broker a private sector solution to any perceived imperfections." He argued that "in an effort to favor a specific business plan, the agency has fashioned a highly tailored garment that may fit no one."

The airwaves are set to go vacant in February 2009, per a congressional mandate forcing analog TV broadcasters off that chunk of spectrum as part of a long-anticipated switch to all-digital television. Current and would-be wireless broadband operators are eager to get their hands on that spectrum because of its inherent scientific properties, which allow signals to travel farther and more easily penetrate walls.

Of the spectrum being auctioned, 62 mHz will be up for grabs by commercial operators. About one third of those airwaves that will be subject to the "open access" rules and would allow bidders to purchase a single, regional license covering a large geographic footprint. The remaining portion, which will not be forced to comply with the unfettered devices mandate, will be divided into licenses of various sizes covering smaller and medium-sized geographic markets.

Another primary motive for the spectrum is improving communications among public safety workers. The adopted order sets aside 24 mHz of spectrum to be dedicated to that purpose and licensed to a single non-commerclal, non-profit group that represents the public safety community. It also sets up a framework for a public-private partnership to build a nationwide, interoperable public safety broadband network on a shared 10 mHz of the spectrum. It would be up to the commercial licensee to build out the network for use by emergency workers, and the public safety licensees would also have priority access to the commercial spectrum in times of emergency.

The FCC also agreed to employ "anonymous" bidding procedures, which means the agency will withhold information about specific applicants' license selections and bidding activity until the auction ends. No particular start date for the auction was set on Tuesday, but by congressional mandate, it must begin no later than January 28, 2008.

Update: Click here to read our full coverage of the new FCC rules.