New technologies and services(a) It shall be the policy of the United States to encourage the provision of new technologies and services to the public. Any person or party (other than the Commission) who opposes a new technology or service proposed to be permitted under this chapter shall have the burden to demonstrate that such proposal is inconsistent with the public interest.
(b) The Commission shall determine whether any new technology or service proposed in a petition or application is in the public interest within one year after such petition or application is filed. If the Commission initiates its own proceeding for a new technology or service, such proceeding shall be completed within 12 months after it is initiated.
Indeed, a prominent communications attorney in private practice told me a few years ago that FCC would punish any party who had the temerity to claim entitlement to timely action for new technology under this provision by delaying any action even more than usual! (As Mitchell Lazarus showed in his comments in the still pending after 7 years "Innovation NOI", Docket 09-157, 2-5 year delays are common even for noncontroversial policy changes for new technology!)
Along the same lines, a senior current 8th Floor staffer told me that mergers at FCC should get higher priority than new technology issues because mergers add more to the US economy! (Note this staffer was not from Comm. Rosenworcel's staff since she believes that FCC's past unlicensed spectrum decisions "contribute $140 billion in economic activity annually".)
Your blogger is not opposed to mergers or FCC merger reviews, just puzzled why merger reviews have a published timetable that is usually met while the provisions of § 7(b) are consistently ignored.
But my unnamed lawyer friend does not represent NAB and its ATSC 3.0 copetitioners. Thus my surprise when I read this introductory section of NAB's ATSC 3.0 Petition for Rulemaking.
Did NAB touch the "third rail" of FCC policy deliberations: § 7 ? Will FCC punish NAB for claiming Section 7 status?
Actually various senior FCC staffers over the years have said this is not a problem because "everyone knows" that § 7 is just advisory and doesn't mean what its plain language says it means. Well apparently NAB and its copetitioners Association of Public Television Stations, AWARN Alliance, and Consumer Technology Association (former CEA) didn't know that! But if such knowledgeable groups as NAB and CTA were fooled by the apparent plain language of § 7 isn't it reasonable that an "outside the Beltway" startup might also believe what the law appears to state?
Isn't time for FCC to take the Chevron decision precedent and state clearly what it really thinks § 7 means? Clearly a lot of people are confused here. If FCC decides after 30+ years that § 7 needs updating or clarification, it has an annual opportunity to ask Congress for such changes. To my knowledge it never has, preferring to ignore the issue.
Will FCC punish NAB with extra delay for having raised this ugly issue as my unnamed friend predicted? NAB is nowhere as powerful it was two decades ago since CTIA is clearly the alpha male of FCC regulatees these days. (You don't see CTIA raising § 7 issues - they don't have to in order to get their way!)
Broadcasters no longer "alpha male" at FCC
But acknowledging the § 7 issue in any FCC action on this petition would be very awkward for the § 7 denialists at FCC who redact the section from all paper copies of the Comm Act on 12th St., SW and use the FCC "great firewall" to keep the staff from finding it on WestLaw.
Perhaps FCC insiders can convince NAB et al. to quietly amend their petition and bury this awkward issue?
But the statement was a learning experience. Much of what FCC does is really "economic regulation":
- it affects how much income licensees and regulated entities such as carriers can earn,
- it affects the division of spectrum among industries which indirectly affects their profitability,
- it deals with who can own certain types of licenses and how many of those licenses they can own,
- it affect inter service interference which also affect profitability, etc.
For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communications, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is created a commission to be known as the "Federal Communications Commission", which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this chapter.
So safety issues should be deep in FCC's DNA. The creation of the Public Safety and Homeland Security Bureau on 9/25/2006 was a positive attempt to get public safety issues away from the main industry focused bureaus of FCC that in many respects like most regulators were captured to some degree by the commercial entities they regulate. Hence WTB was really unable to resolve the long standing NEXTEL/public safety interference issue of the late 1990s and it was only resolved when Nextel came in with a "deal" that public safety entities were willing to agree with - whether or not it was really in the public interest.
(There is an oral tradition in the FCC staff that an engineer of WTB's predecessor was concerned about the possibility of such interference and pressed for protection of public safety as a condition of the original Nextel waiver that permitted their Part 90 licenses to be used for cellular-like technology. However, this was overruled by higher level managers who were focused on the issue of increasing competition in the cellular industry. Hopefully with the creation of PSHSB such decisions will not be so one-sided in favor of commercial interests.)
But there are a few ongoing spectrum policy issues that are really related to life or death issues and that the Commission is not resolving expeditiously. Here are some of them:
Texting & driving. CDC states "Each day in the United States, over 8 people are killed and 1,161 injured in crashes that are reported to involve a distracted driver." While FCC has a webpage entitled "The Dangers of Texting While Driving" and another entitled "Distracted Driving", what is it really doing to decrease the number of deaths associated with this use of FCC licensed technology? Is FCC really paying more attention to CTIA's desires on this issue than on the overall public safety issue? How often are senior FCC officials talking about the death toll resulting from this misuse of radio technology? FCC held a "Distracted Driving Technology Showcase" in April 2013. What has been the progress of implementation of such technology on either a voluntary or mandatory basis? NYTimes recently had a discussion on this issue, but is FCC actually doing anything?
Capt. Robert Johnson (Ret.) SCDC, shot 6 times
as a result of an order given over a contraband
cellphone, with Gov. Haley & Comm. Pai.
Use of contraband cellphones in prisons. This is the subject of Docket 13-111. Note the first 2 digits are "13" indicating that this NPRM was issued in 2013, actually 3 years ago this week. But this NPRM was in turn based in part on a petition filed by the South Carolina Department of Corrections in July 2009 which was never even put out for public comment. (This explains why the NPRM cryptically refers to the SCDC petition by the mysterious code "PRM09WT" rather than the usual RM number.) But the CTIA-favored approach of "managed access" and continuing the absolute prohibition of any jamming by nonfederal users is basing all progress on a quixotic technology. Meanwhile real people die as a result of crimes ordered by incarcerated criminals. Can't FCC give the cellular industry a date certain to show whether managed access under their preferred approach and conditions is an adequate solution for this life or death issue?
Aviation Tower Marking and Lighting Enforcement: One of the more bizarre statements in the nearly $1M study FCC ordered to justify downsizing field enforcement that has never been formally released (but a leaked version was first made available on this blog) is shown below:
Since tower inspection compliance is good, it can be cut back significantly the consultants reason. But tower lighting and marking issues are different than most other FCC compliance issues like frequency and power regulation. As the Coinjock NC helicopter crash incident dramatically showed major screwup can result in multiple deaths. This different than interference which is typical of most Title III technical violations.
Instrument Landing System (ILS)
FM Pirate Interference to Aircraft Navigation: As we have written previously, the FAA's Instrument Landing System has its "localizer" (left/right determination) signal just above the FM broadcast band. ILS receivers have some sensitivity to interference resulting from overloads of two signals that have a certain relationship to the ILS channel used at a given airport and another local FM station. In normal FM licensing this is considered and the threatening frequency is not allowed near an airport. But illegal FM stations do not go through normal licensing! And if the mathematical relationship with another FM station and the ILS frequency is correct, not much power is needed to create interference if the other FM station has a strong signal near the airport. So downsizing enforcement without leaving an alternative mechanism to address this issue is an invitation to aviation safety issues.
Public Safety Interoperability: The January 13, 1982 Air Florida crash in the Potomac River was the beginning of a national dialogue on public safety interoperability. The 9/11 tragedy was another milestone.
There have been improvements since 1982, but has it really been adequate. Now there are a lot of agencies involved in this area and Congress has had a key role in starting FirstNet. But FirstNet is not going to make a big dent in the basic problem for this is what its website says:
FirstNet will enhance public safety communications by delivering mission-critical data and applications that augment the voice capabilities of today’s land mobile radio (LMR) networksWhen the FirstNet network is initially deployed, it will provide mission-critical, high-speed data services to supplement the voice capabilities of today’s LMR networks.
So while the broadband capabilities of FirstNet will be interoperable, today's land mobile radio networks in a myriad of bands will be around for the foreseeable future and will continue to serve as a Tower of Babel as in 1982. Does FCC even talk about this issue?
Most FCC decision do not involve safety issues and they are basically "economic regulation" in the terms of my former colleague. Thus FCC is structured to deal with such issues.
The few issues that are really matters of life and death do not easily fit into this framework and theus don't get the attention they deserve. The FCC's inability to resolve the issues in Docket 13-111 is a classic ongoing example of this problem. Will FCC ever give the cellular establishment a firm time limit for implementing their preferred solution or will people just continue to die because of this ongoing problem? There are other solutions besides the quixotic "managed access". FCC has moved heaven and earth to meet cellular industry spectrum demands for 4G and 5G, when will the industry either act to decrease the prison contraband problem or stop blocking other solutions?
A reliable source in the Office of the Managing Director, knowing that I was the victim of their bosses' efforts, told me in the mid 1980 that FCC tested the lead levels in water coolers in its various buildings near the corner of 20th and M St., NW and found that the lead levels in the main FCC building at 1919 M St. exceeded a new EPA regulation that would be going into effect.
What did FCC do?
- Provide lead free water to all staff members?
- At least provide it to all pregnant staff members?
- Advise the staff of the issue so they could make their own decisions?
The Office of the Managing Director management swore their staff to secrecy on this issue and proceeded to make repairs to get the lead level down to EPA standards before the new regulations went into effect. Did the Chairman know? Possibly. Did the commissioners know? Probably not.
So you may ask, isn't some level of lead exposure for a small time safe? Here's what EPA says:
This type of cynical attitude towards the FCC staff has been part of FCC's DNA going back decades. While I did not necessarily agree with all of Chmn. Powell's telecom policy positions, he was a welcome breath of fresh air. For example, he restored a reasonable training budget for the FCC staff as a whole, not just a few elite senior staffers and reinstated the master's degree program for Commission engineers that had been unfunded for over two decades.
I suspect because Powell had been a junior military officer and had grown up in a military family he understood the importance of motivating staffers and earning their respect. Most other chairmen in memory came from small organizations and lacked management experience in a 2000 person organization. Typically the chair and commissioners are focused on getting as much done as possible during their terms with little concern about the infrastructure of the organization including its staff. But I must admit that the lead coverup of the 1980s was a new low in FCC mistreatment of its staff.
This week Wireless & RF magazine published the above article on terahertz (THz) technology R&D in Japan. While we do not necessarily believe it is now time to sell your Corning stock because fiber optic telecom is doomed, this clearly demonstrates continuing foreign interest in technology that FCC is at best apathetic about and which NTIA has allowed certain IRAC members to discourage.
While the major regulatees who routinely show up on the FCC's 8th Floor have little interest in these frequencies, these same corporations and trade association also showed little interest in Docket 81-413 that ultimately spawned Wi-Fi and Bluetooth and Docket 94-124 that stimulated the R&D that showed the surprising result that mmWave/"spectrum frontier" mobile systems were practical. Thus FCC's mainstream spectrum regulatees can sometimes be myopic and sometimes have "crystal ball" problems.
Lest you think that this article about 275+ GHz technology in Japan is isolated, here is a quote from an ETSI report last year:
“With respect to the aforementioned, the mission of ETSI ISG mWT is to promote the use of millimetre wave spectrum from 50 GHz up to 300 GHz for present and future critical transmission applications and use cases. Moreover, ETSI ISG mWT will focus on enhancing the confidence of all stakeholders and the general public in the use of millimetre wave technologies.”
Here are several other article on foreign R&D above FCC present 95 GHz service rule limit and 275 GHz allocation limit:
- Japanese 120 GHz system used at Beijing Olympics
- Japanese 72-100 GHz components
- Japanese 300 GHz receiver — Note that this article indicates that "A portion of these research results were obtained through 'R&D Program on Multi-tens Gigabit Wireless Communication Technology at Subterahertz Frequencies,' a research program commissioned by Japan's Ministry of Internal Affairs and Communications as part of its 'Research and Development Project for Expansion of Radio Spectrum Resources.' " This confirms direct involvement of the Japanese regulator as part of its "industrial policy" program.
- German 237 GHz outdoor experiment - Note that the authors of this experiment have never revealed the exact upper and lower frequency limits of their transmissions and it is likely that it intruded into a passive allocation. Certain IRAC members routinely try to block such experiments regardless of whether they actually impact passive spectrum use and NTIA has not been assertive in overview of such actions.
FCC is moving ahead on Docket 14-177 on "spectrum frontier" mobile use in 28-71 GHz and that is not an issue here. The problem is that FCC has turned its "blind eye" to all other "spectrum frontier" issues while our foreign competitors are marching full speed ahead.
It gets worse! Google "terahertz spectroscopy" and you will see that there are US made products now being sold above 95 GHz for noncommunications use. A careful parsing of §302a and §2.803 of the FCC Rules reveals that the sale of such equipment is presently legal, however the use of such equipment appears to be a violation of §301 since there are no licensed or unlicensed service rules at these frequencies. The manufacturers of such equipment presently have little concern since EB is easily distracted by other mood swings and is laying off much of its field staff. But sooner or later that will need capital access and will discover what "due diligence" means! Denying such firms capital access will not help US competitiveness. FCC outreach to them will! Do you have to presently be a multibillion dollar industry to get FCC attention? We certainly can recall when Wi-Fi was a tiny industry.
Isn't it time for FCC to pay some attention to upper spectrum especially since 275+GHz allocations are on the WRC-19 agenda?
At 12:06 PM on April 1, 2016 the official FCC Twitter account, @FCC, sent out the above tweet as part of "Spectrum101: Great Moments in Spectrum History". It has now been deleted, possibly because I responded to this tweet with the statement that while the unlicensed ISM band that is home to Wi-Fi and Bluetooth (and many other devices) began in May 1985, unlicensed spectrum has been around since 1938 although it is not explicitly authorized in the Communications Act of 1934. Hopefully, some readers here are old enough to remember that cordless phones predate 1985. (If you can't remember this, ask your parents.)
The video below shows the FCC's May 1985 decision and may explain why I remember it so clearly:
Former FCC staffer Kenneth Carter explained the actual history of unlicensed in a 2009 paper titled "Unlicensed to kill: a brief history of the Part 15 rules". Ken wrote:
In 1938, shortly after its founding, the FCC first permitted unlicensed devices to be sold and operated without a license. The Part 15 rules stem from what is possibly an oversight offundamental physical phenomenon by the Communications Act of 1934. Congress had intended to treat the regulation of spectrum in the way in which we traditionally think of it. Namely, the FCC was to award rights through licensing discrete individual entities, including such as radio broadcasters, the military, and the alike. This, however, failed to recognize two facts. First, that nearly all devices that employ electricity leak or reradiate electromagnetic energy, albeit at very low power levels. Second, also at this time, radio device manufacturers started introduce short range, low duty cycle communication devices which operated employing low levels of energy over very short distances. As a result, the FCC set about to promulgate rules to manage such devices based on the jurisprudence that if RF emissions that were sufficiently weak and short ranged so as to not be considered measurable, they would, therefore, not rise to the level of harmful interference. This was explained by then-FCC Chief Engineer, Ewell Jett in 1938:
"What we are concerned with immediately is the problem of interference. If certain low power devices can be used without interfering with radio communications, there would appear to be no engineering reason for suppressing their use. (Footnotes omitted)
What is the difference between 1938 style unlicensed spectrum and post 1985 style? The original unlicensed rules allowed only specific functionality in a specific band requested by a petitioner. This band could be used by cordless phones, this for garage door openers. Always with very low power. Have a new possible use? File a petition and wait!
The Docket 81-413 regime adopted in 1985 set forth some technical requirements and allowed much higher power. It did not restrict the type of use. Thus while the rulemaking never mentioned radio LANs, when they became important in the late 1980s the RLAN proponents used the Docket 81-413 unlicensed regime to get access to the ISM bands quickly without nonroutine FCC action. True "permissionless innovation" before the term was invented!
Another garble in the this short length (and short lived tweet) is the use of "allocating" as the 5th word. All real spectrum wonks know that unlicensed is not an allocation, rather it is a permitted secondary use on an NIB (noninterference basis). Why there were so many garbles in such a short tweet is puzzling and raises questions of FCC as an "expert agency in spectrum".
Or maybe we should have read the date more carefully? However the other "#Spectrum101" tweets the same day seemed correct.
Our fellow bloggers at CommLawBlog on the same day as this tweet had an April Fools post entitled "Looking for Improved Public Image, FCC Reorganizes Office of Media Relations". After reading both the tweet and the CommLawBlog post, it is hard to tell which is real!