SpectrumTalk

The independent blog on spectrum policy issues
that welcomes your input on the key policy issues of the day.

Our focus is the relationship between spectrum policy
and technical innnovation.

VA & FCC: Similarities?
Is the Real Problem Inadequate Throughput Capacity in Both?

VA-FCC

Clearly there has been a lot of news recently about the VA and it poor treatment of veterans who have served our country. But no one has said the VA medical staff was sitting by idly as patients were denied treatment or waited excessive times, perhaps to die before treatment. Your blogger believes that while the medical staff was treating patients as fast as they could, the administrative staff at VA covered up a shortfall in capacity by “cooking the books” about waiting times, even if some patients died from delayed treatment.

But is the FCC that different? Consider the recent CG Docket 14-97, “CGB Seeks Comment On Termination of Certain Proceedings as Dormant” in which FCC seeks to close out a 78 page list of proceedings, the first page of which is shown below:

FCC-dormant


FCC has a glut of open dockets, in February 2011 it estimated there were “more than three thousand open dockets”. While some of these are inevitable, some result from the old “justice delayed, justice denied” metaphor. Readers may recall that after 5 years FCC disposed of the M2Z petition for use of the then vacant AWS-3 band with a phone call saying they were too busy to take formal action. (With later Congressional mandate that federal users had to move out of the lower part of AWS-3, both parts of AWS-3 are now slated for auction).

In Docket 10-44 FCC decided to deal with this glut of open dockets in the following way

“(W)e accordingly amend Section 0.141of our organizational rules to delegate authority to the Chief of the CGB to review allopen dockets periodically. When the CGB Chief identifies an open docket that appears to be a candidate for termination, the CGB Chief will consult with the Commission bureau or office with responsibility for that docket and, with the concurrence of the relevant bureau or office, will take the appropriate action to close the docket after public notice (as discussed in the nextparagraph). Proceedings that are candidates for termination might include dockets in which no further action is required or contemplated and dockets in which no pleadings or other documents have been filed for several years. (Emphasis added)


FCC does not say how many proceedings are on this new list, but I estimate 385 dockets. This follows on a November 1, 2011 order that terminated 999 dockets and a September 27,2012 order that terminated an unspecified number of dockets that I estimate to be about 330. This is a total of 1714 dockets closed as “dormant” in 3 years. Is this a cause for celebration or should someone be asking why are there so many dormant dockets?

Now some of these are truly procedural problems, some are mergers that are now moot because of delays and some are enforcement issues where the violator is no longer in business. But some of these dockets are requests for technical changes in FCC rules that FCC action has delayed to the point where the proponents have just given up and the issue has “died”. We note that the Wireless Innovation NOI, was launched with great fanfare by FCC in 2009 saying it

“seeks to identify concrete steps the Commission can take to support and encourage further innovation and investment in the wireless marketplace. This NOI also seeks to better understand the factors that encourage innovation and investment throughout this area.”


However, by many standards this proceeding is dormant due to FCC inattention. Fortunately, the eccentric serial filer/process abuser Maneesh Pangasa routinely files odd unrelated documents in this docket (145 to date!). Your blogger cross filed in this docket a millimeterwave filing on 02/11/2014. But if only filings by Fortune 500 corporations or their trade associations count, then the last filing was from CTIA on 07/29/2010. So is the Wireless Innovation NOI now dormant and subject to termination by Chief CGB under delegated authority?

Are some of FCC’s termination of dormant dockets analogous to VA’s “cooking the books” on waiting times to give the appearance of well functioning organization? While FCC has now created a termination mechanism, it has not done anything to make sure proceedings do not become dormant, perhaps by acting on them before they become dormant! As I indicated in my comments to the House Energy & Commerce Committee I suspect that the fundamental issue here is that FCC as presently structured and operating just does not have the capacity to do its spectrum job. This may not need new legislation to solve, but it at least needs recognition as an real problem, not one swept under the carpet with termination of 100s of proceedings.

When I joined FCC in the Carter Administration, Chmn. Ferris had a phrase “a government worthy of its people” as a test of possible FCC actions. It is still a good phrase as a goal!

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FCC@80: Bob Weller's Farewell Talk to FCC on WWII-era Radio Intelligence Division

In 2007 we reported here that my former FCC/FOB colleague Bob Weller was rejoining FCC to head the RF Safety Program. For reasons that are unclear that was only partially true. By August 2008, it was clear that Bob had become Chief, Technical Analysis Branch, OET - the descendent of a position your blogger once held.

The ever mobile Bob is now
joining NAB, effective today, as Vice President of Spectrum Policy reporting to Rick Kaplan, Executive Vice President of Strategic Planning - another FCC alum. It is rumored that he will be replacing Vic Tawil, another FCC alum, who is about to retire.

rw poster
As a farewell gift to FCC (and probably because he had to recuse himself from most substantive work while he negotiated with NAB on the job change) Bob gave a presentation at FCC last Wednesday that was not announced to the public although open if you knew about it. Perhaps this is because FCC leadership had some misgivings about this aspect of FCC history - even though the basic details are well documented. Indeed, Bob’s talk ended with a showing of the 1944 MGM short film Patrolling the Ether which is described on both IMDb and Wikipedia. While Bob was forbidden to research the talk at the National Archives “on company time”, he did “group source” information from the FOB alumni group.

The FCC’s Radio Intelligence Division (RID) and the Foreign Broadcast Intelligence service (FBIS - later “Foreign Broadcast Information Service”) were formed on the eve of WWII to harness the then formidable and unique technical capabilities of FCC in support of the war effort.

As a result of the group sourcing, the following publicly available histories were found:



The video of Weller’s talk has is not on the FCC website, but has been uploaded to
Dropbox. (Download by hitting the “download” button after using this link.)

(During Bob’s talk he worked in some mild criticism of FCC’s current engineering staffing system: FCC used to have central hiring of entry level engineers with recruiting tied to the academic year and a common training program in the former Norfolk VA field office and briefly at the Columbia MD field office. This program allowed competitive recruiting when other employers were recruiting as well as a common core of technical training for FCC engineers. [Realistically many electrical engineering degree programs today do not include much material on communications technology.] Such recruiting and training has been erratic for over a decade now due to budget uncertainties and may well be a problem in a few years as current senior engineers retire.)

One aspect of RID that was not mentioned is of great interest to your blogger and was not publicly known until the 1980s: FCC (along with FBI) disagreed with the Army on the disloyalty of Japanese-Americans after Pearl Harbor, particularly with the Army allegations that Japanese-Americans were transmitting information to Japan from covert transmitters. Peter Iron’s book
Justice at War documents how both FCC Chairman James Fly and RID Chief George Sterling responded to requests from the Attorney General about the pending appeal of the Korematsu case to the Supreme Court.

In particular, Irons describes an April 1, 1944 memo to Attorney General Biddle from Chmn. Fly that left the AG “in a virtual state of shock”:

The FCC chairman provided documentation that (Army General) DeWitt had been personally informed by the FCC staff, both before his evacuation recommendation and afterward,that not one of the reports of illicit radio transmissions had been verified. .. (Fly wrote) “The fact is that military personnel was entirely incapable of determining whether or not the many reports of illicit signals were well founded. The basic trouble observed (by RID) was the lack of training and experience of military personnel carrying on the monitoring and direction-finding work.”…(Fly added that the Army) ”repeatedly made wholly inaccurate reports of illicit stations along the West Coast”. (p 282 - paperback edition)


Chmn. Fly also sent the AG summaries of George Sterling’s confrontational 1942 meetings with Gen. DeWitt, the main advocate of “internment/relocation” in which he heard DeWitt’s concerns about how “the woods were full of Japs with transmitters” and how Sterling wrote “I had never seen an organization so hopeless to cope with radio intelligence requirements”.

Since a major justification for the “internment/relocation” was “the interception of illicit radio transmissions” this unpleasant news from FCC to DOJ put DOJ in an awkward position as it prepared for the Korematsu case. So being bureaucrats, they solved the problem by “deep sixing” the FCC memos and fuzzifying their brief to the Supreme Court. The memos were rediscovered in the 1980’s by Korematsu’s legal team in a
coram nobis petition and in September 1987 the 9th Circuit Court of Appeals granted the petition for Korematsu and the related Hirabayashi case, reversing their wartime convictions because it found if “suppressed (FCC) material been submitted to the Supreme Court its decision probably would have been materially affected ”.

While this seems like ancient history, recall what happened after 9/11 when speaking about civil rights became secondary to fear and constitutional concerns lost their primacy. For Fly and Sterling to speak out during WWII on the erroneous justification for the treatment of Japanese-Americans required supreme courage to go against the flow of the times. I believe that FCC should recognize and acknowledge the heroism of these two as one of FCC’s proudest contributions to our country.



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Jammer Enforcement Actions at FCC

Jammer-NAL-6-14

In the above “landmark enforcement action” FCC issued a Notice of Apparent Liability(NAL), i.e. a fine, against a Chinese jammer company for marketing in the US by way of Internet and some unidentified shipping mechanism, “285 different models” of jammers targeted at cellphones, GPS, Wi-Fi, Bluetooth, etc. The amount of the proposed fine is $34,912,500! However, none of this goes to FCC and it is unlikely that any of it will ever be paid in any case.

Lest you think this is the only Chinese company doing this, your blogger has received dozens of e-mail ads for such devices from a different firm and has routinely forwarded them to FCC/EB. So clearly C.T.S. Technology is not the only offender.

Para. 5 of the new NAL states

“We also again warn U.S. consumers that importing a cell, GPS, or other signal jammingdevice (i.e., purchasing such a device online and having it shipped into the United States via the U.S. mail or other transport or courier service) is unlawful and may subject them to civil and criminal penalties.”


This is followed by a citation to fn. 4 which cites 18 U.S.C. § 1362 and 18 U.S.C. § 1367(a) as well as the 2010 Phonejammer.com FCC NAL. The only problem is that the 2 cited laws have nothing to do with ordering jammers - they deal with actually jamming a federal communications system or a communications satellite - something unlikely with the jammers involved here, but remotely possible. (The cited Phonejammer also has nothing to do with ordering jammers.) So was this section of the NAL sloppy legal work in EB or is there a legal ambiguity under present statutes on the issue of importing jammers for personal use? It is clear that § 333 forbids actual jamming of licensed/authorized transmitters:

No person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this chapter or operated by the United States Government.


The cellular industry prefers to read § 333 as forbidding FCC from ever authorizing any jamming, even in remote prisons. Thus they were successful in stopping FCC from even asking for public comment on the GTL petition on both jamming and “managed access” - notwithstanding the § 1.403 requirement to issue “promptly” a PN asking for comments on such petitions. They even managed to get FCC to draft the Docket 13-111 NPRM to exclude any discussion about what is the scope of § 333 even though this rulemaking is partially responsive to the GTL petition.

The cellular establishment is betting that its interpretation of § 333 will be able to drive all jammers from US territory. However, as we have stated repeatedly, there is a demand for jammers that arises from perceptions of antisocial use of communications. While there are some possible uses of jammers that are beneficial financially to the perpetrator of such use, (e.g. a hotel owner jamming cellphone to force use of expensive hotel room calling services), in practice such use is very rare. Most cellular jamming and GPS jamming is in response to perceptions of antisocial behavior or invasions of privacy. Until the cellphone and GPS industry address those perceptions about the harmony of using their products and the impact on others there will always be consumer demand for jammers. Discussing nonexistent laws that ban consumer ordering of jammers, as in para. 5 of the NAL, or banning all prison jamming use under a specious interpretation of § 333 may feel good to the cellular industry, but are doomed to be ineffective.

Hopefully this NAL might spur Customs and Border Protection to try harder to intercept jammers on their way to the US and might spur carriers like FedEx to ask more questions from shippers like C.T.S. Technology.

UPDATE

Our friends at CommLawBlog, who actually are lawyers when not blogging, also have questioned the legal basis of this NAL stating:

We also can’t help questioning the extent to which C.T.S. actually violated the law.

True, it shipped ten devices to U.S. addresses, but it performed its acts in China, where it may be perfectly legal to ship jammers to U.S. addresses. One unquestionably unlawful step in the transaction was the importation of the ten devices – but FCC staffers, not C.T.S., did that by initiating the transactions and accepting delivery.

Penalizing C.T.S. for the 275 models that it advertised but did not ship to the U.S. is even more tenuous. There is only one Internet; a company cannot easily promote its products on line in some parts of the world but not others. The FCC’s best arguments are probably that (a) some of the advertised products jam wireless frequencies used only in the United States and (b) the company quotes prices in U.S. dollars. True, C.T.S. could refuse to fill U.S. orders and could display a notice on its website stating that policy. But the failure to have the policy and to display the notice may not add up to an actionable violation.

To be clear: C.T.S.’s jammers are disruptive and potentially dangerous. We agree with the FCC that they have no place in the United States. We fully support the FCC’s efforts to keep them out of the country. We just wish the FCC could manage it from a more secure legal platform.


So if the goal is to actually stop the sale and use of such jammers in the USA, not just to posture to the cellular industry, perhaps some more pragmatic actions are needed.

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Field of Dreams & Spectrum Policy



This week, the 80th anniversary of the Communications Act of 1934, is also the 25th anniversary of “Field of Dreams”, the movie most remembered for the line “If you build it … they will come”. While I recall that President Bush (41) publicly said he was confused about the movie, President Bush (43) actually was a great fan.

The connection to spectrum policy? Classic FCC spectrum policy (along with spectrum policy in other places) was prescriptive - that is users could do A and B, but not C if C was not explicitly allowed. Thus when I joined FCC in 1979, land mobile (Part 90) users were allowed AM and FM modulation and it took a long series of rule makings, some of which inconsistent in their final technical details details, to allow digital modulation for all users. By contrast, today’s rules are generally (broadcasting and public safety being major exceptions) proscriptive in that they tell you what you may not do - generally things that would result in interference to other users.

Hayes book cover
The reason why the 1981-85 rulemaking that brought forth Wi-Fi, Bluetooth, ZigBee and many other less known products was so controversial that it resulted in an attempt to fire your blogger after the rules were adopted was that it was an earlier action to move away from this prescriptive model. The rules adopted in Docket 81-413, now updated and codified as 15.247, did not say “let there be Wi-Fi”, they said “here is this spectrum, here are rules that prevent harm to anyone else, feel free to innovate and offer new products to the public and let’s see where this goes! “ (In truth, in 1985 wired/Ethernet LANs were nonexistent in offices and homes and there are no interest in any type of wireless LAN as a product for serial production. But the flexibility grand in the Docket 81-413 R&O meant that when interest developed for RLANs within a few years those interested did not have to come to FCC and grovel for permission for years. Thus they had timely market access and history was made!)

So as we near the 1 year anniversary of the IEEE-USA petition for FCC on the spectrum above 95 GHz that now lacks any rules (and is hence implicitly forbidden for normal licensed or unlicensed use) today let us ponder what we gain by having no such rules or even a defined path to such rules. In the Docket 81-413 rulemaking most commenters were opposed saying the technology under discussion was “blue sky” and had no demand. Yet within 2 years commercial products were available. A few years later came Wi-Fi and Bluetooth -- now “applications that have changed our world”.

Let us ponder of the lessons of “If you build it … they will come” and also the spectrum policy variant: “If you allow it .. they may well build it”. Let’s see if we can convert most FCC spectrum rules from prescriptive to proscriptive structure. (The cellular rules generally have this approach already.)


ABC US News | ABC Celebrity News
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FCC@80

This week is the 80th anniversary of the Communications Act of 1934.

According to the FCC’s first annual report in 1935, here are the key dates
  • June 19, 1934 - Passage of the Communications Act

  • July 11, 1934 - Swearing in of the first commissioners (7 in number until the 1980s)

  • July 17, 1934 - First commission meeting
The FCC was formed by a merger of the Federal Radio Commission and the telephone and telegraph components of the Interstate Commerce Commission, 2 very different agencies. As the following section of your blogger’s recent comments to the House Energy and Commerce Committee’s NOI-like inquiry on spectrum policy says, the 1934 7 commissioner FCC had a lot simpler job than today’s FCC and worked in a legal environment where it was ease to get things done.

When FCC was created in 1934 the world was much simpler than today and the FCC had a somewhat different structure than today although it was not reflected in the statute. Like the Interstate Commerce Commission that was the predecessor to the FCC’s Title II jurisdiction, the initial 7 commissioner FCC divided itself into 3 “divisions” of 3 commissioners at creation in 1934 – dealing with: telephone, telegraph, and radio. The original intent was that the whole commission would meet en banc for issues affecting multiple industries or key decisions. Note that this was prior to the 1946 Administrative Procedures Act (APA) when the procedures for adopting and enforcing rules lacked today’s checks and balances, but were also much faster. Note also that prior to World War II the maximum frequency of practical use and the number of technological options for radio technology were very limited. While the 1934 FCC Annual Report mentioned in passing the “possibility” of VHF use “above 30 megacycles” or what would be called 30 MHz today, the highest frequency mentioned in actual routine use was 2.5 MHz.

At the same time of the arrival of the APA in 1946 came the postwar rapid explosion of available spectrum for practical use, many new technologies for using that spectrum, and an ever expanding categories of uses that have benefited both our economy and our society. But is the FCC, as presently structured able to deal with this workload efficiently? Experience shows that technical spectrum policy decisions are just not keeping up to the pace of today’s complex industry. While major players are able to demand timely action on some issues, e.g. DTV transition and incentive auctions, even these major players have to choose between which of their actions will get attention in a sort of informal rationing system. Entrepreneurial firms that are the hot bed of innovation in other technical areas just do not have access to much of the FCC’s limited decision-making throughput in the spectrum policy area and as a result get turnaround on technical policy issues that discourages investment in wireless technology requiring nonroutine FCC approvals. Even major incumbents are not getting a timely response of new unanticipated types of interference to their systems that need rulemaking action to resolve.


Your blogger has fundamental doubts whether today’s FCC as presently structured has the decision making throughput to do its basic spectrum management functions in timely way while faced with simultaneous issues such as incentive auction, net neutrality, and several megamergers. We believe that if the Commission will recognize this shortfall that it has the flexibility under Section 5(c) of the original Communications Act to increase its throughput by delegating more technocratic issues to the staff as its UK counterpart Ofcom does under the policy guidance of its “Board” which is analogous to the FCC commissioners. The Ofcom Board delegates most actions to its senior staff while maintaining policy control.

(We note that in Canada the politically sensitive issues of most interest to the 8th Floor are handled in the FCC-like Canadian Radio-television and Telecommunications Commission, while most technocratic issues are handled by the less politicized Spectrum, Information Technologies and Telecommunications sector of Industry Canada. While a Canada-like dichotomy would require legislation, much of the UK Ofcom functionality and improved productivity could be achieved under the terms of Section 5(c).)

We hope that FCC and the spectrum policy community will use this anniversary to contemplate whether the presently structured FCC is adequately keeping up to the task at hand in spectrum policy or whether the commissioners should use their Section 5 power to delegate more functions that they do not personally add value to.

original-FCC-seal
Original FCC seal in 1934

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