Satellite Digital Radio Searching for Novel Theories of Action
Erskine, Daniel, The Journal of High Technology Law
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)
I. 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.
II. SDAR TECHNOLOGY, TERRESTRIAL RADIO, AND WIRELESS DEVICES
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. …