Survey: Major Wireless Developments 9/10 - 9/11 by Ari Fitzgerald & Mark Schneider
Ari Fitzgerald
Mark Schneider
The paper was presented originally at the Practising Law Institute’s 29th Annual Telecommunications Policy & Regulation Institute publication in December 2011. Long time readers may recall that we have written about this event before in this blog. PLI is a nonprofit group that charges high (>$1000) prices for both attendance at its events and copies of the material presented. There is nothing wrong with this so far.
However, PLI events get ALL the “movers and shakers” from high FCC leadership, e.g. commissioners and bureau/office chiefs, who give presentations to the honchos of industry and K Street firms without making the same information available to the public. I have previously suggested to FCC that if these presentations are prepared with federal resources they should be made available to the public and if PLI is selling videos of the presentations, the FCC should demand copies of the presentations by FCC officials as a precondition for their presentations. Such videos should then be posted for the public within a few days of the PLI event.
On the FCC website I can only find the text of Comm. McDowell’s presentation for the 2011PLI telecom event and nothing for the other FCC presenters. There are, however, copies of Chmn. Kennard’s presentation in 1997 and 1999, Comm. Tate’s presentation in 2008, Chmn. Hundt in 1997, Comm. Copps in 2006, Former WTB Chief Muleta in 2003, etc. Thus there is precedent for making the presentations public, but no consistency.
Also, NTIA Chief Strickling made public his remarks at the 2011 PLI telecom event.
So if you want to hear public officials speak on telecom policy, you can sign up now for the 2012 PLI telecom event on December 6-7 for a mere $1,595.00 OR, FCC could adopt the policy advocated above that the presentations by public officials about the public business should be made public within a few days.
Meanwhile, kudos to Comm. McDowell and NTIA’s Strickling for making their presentations public along with Ari Fitzgerald and Mark Schneider for making their thorough review available to those of us who do not work for or have not hired a K Street law firm, e.g. the “99%”.
2011 Best Places to Work in the Federal Government Report
The annual Best Places to Work in the Federal Government report has been a recurring theme here. The Partnership for Public Service uses data from the Office of Personnel Management's Federal Employee Viewpoint Survey to rank agencies and their subcomponents according to a Best Places to Work index score. Agencies and subcomponents are not only measured on overall employee satisfaction, but are scored in 10 workplace categories, such as effective leadership, employee skills/mission match, pay and work/life balance.
FCC avoided the survey in 2003-2007, but has participated in 2009-20011. This year FCC ranked 17th out of 32 small agencies. In the 2009 survey, based on data collected in 2008 under FCC Chairman Martin, FCC ranked 28th out of 32 “small agencies” and was lower than all but 25 out of the 278 organizations surveyed. But in 2010, FCC was justifiably proud of being “most improved agency in the Federal Government” .
As shown in the chart at left, FCC is still in the average zone for small agencies. I suspect one factor is the lack of stability and continuity for top managers at FCC compared to other agencies. For decades FCC has lacked a top tier of senior civil servants who survived presidential and chairman transitions. (The Mark Fowler to Al Sikes transition was one of the “bloodiest” for senior managers even though the Reagan remained President.)
The reasons for the senior management changes are complex and there is fault on both the 8th Floor political level and the many of the career civil servants who do not act like nonpartisan “British civil servants” as they rise in their career, but rather tend to pander to the political crowds. Bob Pepper was a notable exception serving high positions at FCC under 6 chairmen of both parties. That is truly rare now. But this type of continuity is essential to bridge the gap between the 8th Floor and the staff and make FCC a more effective agency.
Deficit Limits, Budgets and Their Likely Impact on Wireless Innovation at FCC
In the 1970’s FCC went twice to the National Academies to ask for policy research studies on major technical controversies that were delaying industry growth. These two studies then became the frameworks of Part 25 Fixed Service/domsat sharing in C band and the Part 68 interconnection rules that opened the floodgates for CPE - units connected to the telephone line.
However, the early Reagan cutback eliminated funding for such studies and slashed technical staffing at FCC. The 8th Floor grew increasingly interested in universal service issues, broadcast ownership and content, and, more recently, in broadband issues. These are all important issues, but so are the technical issue of spectrum policy particularly as they relate to wireless innovation. While is is tempting to see broadband on in terms of repurposing spectrum to me some goal, the needed capacity is a function of spectrum, technology, and infrastructure investment - as was made clear in a recent Ofcom report.
New technology does not emerge spontaneously. Wireless technology is subject to unusual regulatory issues and the complex nature of this and resulting uncertainties is a real discouragement to wireless innovation - something acknowledged by FCC in the Wireless Innovation NOI.
The present spectrum “haves” may well prefer less FCC action in encouraging and considering new wireless technology and thus may be cheering secretly for pending cutbacks in technical policy resources at FCC. But the national interest is not always the interest of the major corporations roaming the halls of the 8th Floor. We all recall when Microsoft, Google, Apple, and RIM where small firms getting little attention among the established firms such as Motorola, RCA, GE, IBM, etc.
The excess time delays associated with many recent decisions in wireless policy, either big decisions like the AWS-3 nondecision after 4 years of deliberations and the similar delays in delays and nondecisions in much less controversial matters ably described by Mitch Lazarus in comments to the Commission, both delay new technology and discourage investment in it vis-a-vis other fields with more transparent regulation.
The 1980s shrinkage in FCC resources was repeated again in the last half of the last decade:
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FCC staffing 2003-1009 (http://bestplacestowork.org/BPTW/rankings/detail/FC00)
Sadly, it is virtually inevitable that the current budget/debt limit mess will lead to the same resource devastation. Much of the FCC constituency, like much of the EPA and SEC “constituencies”, would prefer that their regulatory agencies be cut to allow the “market” to be more effective. Indeed, Indiana Gov. Mitch Daniels calls EPA the “employment prevention agency”. Perhaps it is, but in many of its decisions FCC is the employment creation agency! A one size fits all slashing of agency budgets will adversely affect wireless innovation even if it spares the narrow issue of finding more spectrum for broadband.
NAB and MSTV might view a freeze of all present FCC regulations as being in their interest. CTIA and CEA might want a singleminded focus on more spectrum for broadband and ignoring all other spectrum issues. Indeed, by focusing exclusively on “clearing spectrum” for broadband the impact of broadband on other incumbents will be worse since new technology for either broadband applications or other incumbents, e.g. broadcaster, will be put on hold unless they are lucky enough to be already allowed under today’s anachronistic rules. Capital formation for innovative wireless technology will dry up nearly completely since there will be unpredictable delays in getting FCC action on necessary rule changes/interpretations. Under such circumstances FCC could truly become the “employment prevention agency” agency and wireless innovation would be reduced to making overseas standard making organizations like ETSI the gatekeeper to US spectrum - US startups need not apply without huge capital resources and foreign partners.
If FCC can not get a reprieve from the pending budget ax, let me point out a less desirable alternative that has not been discussed: Making new technology deliberations user fee supported. Note that this is already allowed at FDA for new drug and new device applications, at USPTO for speeding patent applications, and at USNRC for speeding reviews of new reactor technology.
FCC could ask for authority to collect fees for dealing with new technologies that raise interference questions and then use those fees to speed up deliberations by using outside resources to supplement its staff or hire more staff. In exchange for this income, FCC would have to pledge timeliness improvement from its present poor performance in new wireless technology deliberations. This might be done by asking that Section 7 be amended to make it realistic, not an unobtainable goal as at present. While this would make wireless innovation more costly by internalizing the cost of FCC deliberations into a business plan, it may well be more attractive to wireless R&D investor than the present chaos.
But FCC deliberation on innovative wireless technology consistently violate Section 7 under current funding and the expected funding contraction will only make it much worse. Innovators do not expect regulator certainty, but do expect and deserve transparency and timely resolution.
Agreeing with CTIA: Eshoo Bill is Solution to Nonproblem
“We are concerned that the bill proposes to add a new layer of regulation to a new and exciting set of services, while ignoring the fact that wireless is an inherently complex and dynamic environment in which network speeds can vary depending on a wide variety of factors. Congress should resist calls to impose new regulations and instead focus on the real issue, which is making sure that America’s wireless carriers have sufficient spectrum to lead the world in the race to deploy 4G services.”
Readers may think your blogger has a hatred of CTIA because they are often criticized here. The criticism is because of a fundamental disagreement on several issue like prison jamming, information about cell phone safety, indifference to physical appearance of base stations in populated areas, and cell phone use while driving issues. But I admire many other positive aspects of CTIA and its activities.
In this case, CTIA and I agree on a new bill, “Federal Communications Commission Process Reform Act of 2011”. The House Subcommittee on Communications and Technology majority (Republican) staff have circulated this summary of the bills new provisions:
New section 5A(d)—Bipartisan Initiation of Items. Requires the Commission to establish procedures to allow a bipartisan majority of Commissioners to put an item on the Commission’s agenda.
New section 5A(e)—Publication of Reports and Ex Partes. Requires the Commission to seek comment on reports and establish procedures for giving the public an opportunity to evaluate ex parte filings before the Commission may rely on them.
New section 5A(f)—Pending Item Publication. Requires the Commission to establish rules regarding the publication of a list of the draft items the commissioners are currently considering.
New section 5A(g)—Shot Clocks. Requires the Commission to establish shot clocks for each type of proceeding it oversees.
New section 5A(h)—Release of Documents and Reports. Requires the Commission to release reports according a schedule it has established, and all orders within seven days of adoption. The Commission must report to Congress whenever it misses its own deadlines.
New section 5A(i)—Biannual Scorecard. Requires the Commission to report every six months regarding its progress meeting its shot clocks.
New section 5A(j)—Transaction Review Reform. Preserves the Commission’s ability to review transactions but requires conditions to be: (a) narrowly tailored to remedy harms that arise as a direct result of the transaction and (b) requirements that the Commission could otherwise impose under its rule making authority. The same requirements apply to “voluntary” commitments.
New section 5A(k)—Communications Marketplace Report. Requires a biennial report to Congress giving a big-picture view of what’s happening in the industry, the challenges for jobs and economic growth, and the Commission’s agenda to address those issues.
The FCC’s actions are governed by the same Administrative Procedures Act and Government in Sunshine Act as the rest of the federal government, including the other regulatory Commissions. Many of these issues are addressed under existing legislation that is not followed particularly well. What is the need for FCC exceptionalism here?
I am sorry Comm. Copps is so upset about the Government in Sunshine Act. But the Commission under present laws and regulations have the authority to meet privately to discuss certain topics. There has not been such a closed meeting in nearly a decade. The comity among commissioners thus is not a result of the current law but of a major breakdown on the 8th Floor that can not be legislated away.
The one point I would agree with is the “shot clock” issue. The Commission has consistently ignored Section 7 of the Communications Act ever since it was passed in 1983, while it does have a “shot clock” for corporate mergers which have no legal deadline.
Section 7 & Wireless Innovation: IEEE-USA Letter to FCC
The IEEE-USA letter points out that the Commission does have explicit guidelines for review of pending mergers and forbearance petitions pursuant to Section 10(c) of the Act that both give nominal time schedules. However, there is no analogous guidance on Section 7 issues.
The letter also pointed to recent White House initiatives to speed up patent review to expedite innovation:
We believe that FCC might wish to emulate the White House’s recent Startup America initiative “to dramatically increase the prevalence and success of America’s entrepreneurs.” Under part of this program the Patent and Trademark Office (PTO) will offer an Enhanced Examination Timing Control Initiative “to give innovators more control over the application processing and support a more efficient market for innovation.” For wireless innovations subject to non- routine FCC approvals, FCC deliberations determine if and when diffusion, and thus positive cash flow, is possible. In contrast, the improved and more timely PTO decisions only scope the level of intellectual property protection were these cash flows possible. We urge the FCC to examine this PTO initiative and consider offering to entrepreneurs parallel programs to resolve policy deliberations on a faster, more predictable basis.
FCC has a poor track record in responding to this type of suggestion. Let’s hope they are more attentive this time. If others with like views tell Chmn. Genachowski their views, more may happen.
vox populi, vox dei
"If there is only one action we could take this year to reform the FCC" - What would it be?
Comm. Copps issue a statement yesterday shown in the above FCC news release. Here is the full text:
“I am thrilled that Congresswoman Anna Eshoo, Congressman John Shimkus, and Congressman Mike Doyle have introduced the Federal Communications Commission Collaboration Act. If there is only one action we could take this year to reform the FCC, this should be it.
“The inability of Commissioners to get together and talk as a group makes zero sense.The statutory bar on more than two Commissioners talking together outside a public meeting has had pernicious and unintended consequences—stifling collaborative discussions among colleagues, delaying timely decision-making, discouraging collegiality and short-changing consumers and the public interest. For almost a decade I have seen first-hand and up closethe heavy costs of this prohibition.
“Elected representatives, cabinet officials, judges and just about everyone else have the opportunity for face-to-face discussion before deciding public issues. I see no reason why Commissioners of the FCC should not have the same opportunity at their disposal—especially when balanced, as this legislation is, with specific safeguards designed to preserve transparency. Reaching agreement on the complex issues pending before us is difficult enough in the best of circumstances, but is infinitely more so when we cannot even talk about them among ourselves. Each of the five Commissioners brings to the FCC special experiences and unique talents that we cannot fully leverage without communicating directly with each other.
“The Federal Communications Commission Collaboration Act is a prudent, balanced proposal that recognizes the benefits of permitting the Commission to do its business collectively while maintaining full transparency of the process. This is a reform whose time has come. Ithank the Representatives for their leadership on this much needed reform and wish them successin seeing it through to enactment this year.”
What this bill, H.R. 1009, proposes is a major change to the Carter-era Government in the Sunshine Act, 5 USC 552b. The present law applies not just to FCC, but to the plethora of commissions throughout the federal government from the American Battle Monuments Commission to the Securities and Exchange Commission. But this pending bill only applies to FCC.
The commissioners are allowed to meet in closed meetings for certain subjects under the terms of 5 USC 552b(c). Allowed subjects include personnel matters, ITU conference preparation, and “internal personnel rules and practices of an agency”. While such meetings were infrequent but recurring when I joined FCC in 1979, I do not recall any in the past 2 decades.
FCC and other regulatory commissions are required to meet at least once a month. For more than a decade FCC has just met this minimum requirement. By contrast SEC meets twice a month and NRC meets 3 times a month.
My question for readers, if there was only one reform for FCC this year, would this be your highest priority? Note that you can post to this blog anonymously if you wish and no one, including your blogger, will know who you are.
CORRECTION
A more thorough search of the FCC website showed that there was one closed meeting in 2000 and one in 2001. The FCC site is usually reliable as far back as 1995, so this would imply 2 closed meeting in the past 16 years.
New National Research Council Report on Spectrum Technology and Policy
With funding from the National Science Foundation, the National Academy of Sciences/National Research Council today published a report entitled “Wireless Technology Prospects and Policy Options” which” describes key wireless technology trends, their implications, and options for facilitating the introduction of enhanced and new services.” The mission of the NRC is to improve government decision making and public policy, increase public education and understanding, and promote the acquisition and dissemination of knowledge in matters involving science, engineering, technology, and health. Other technical regulatory agencies routinely ask NRC for views on key policy issues - FCC has not in more than 30 years!
The report as a whole will take some digesting I note with interest the following recommendation:
Ensure That Regulators Have Access to Technology Expertise Needed to Address Highly Technical Issues
As this report argues, spectrum policy is entering an era in which technical issues are likely to arise on a sustained basis as technologies, applications, and services continue to evolve. The committee believes that the Federal Communications Commission (FCC) would therefore benefit from enhancing its technology assessment and engineering capabilities and suggests several ways to gain such expertise:
• Make it a priority to recruit topcaliber engineers/scientists to work at the FCC, perhaps for limited terms.
• Use an external advisory committee to provide the FCC with out side, highlevel views of key technical issues. (Indeed, in the past, the FCC convened the Technology Advisory Council to play just such a role.)
• Add technical experts to the staff of each commissioner.
• Tap outside technical expertise, including expertise elsewhere in the federal government such as at the Department of Commerce’s Institute for Telecommunication Sciences and the National Institute of Standards and Technology (NIST), or through a federally funded research and development center.
Readers may recall that this is similar in several ways to IEEE-USA letters to FCC that have been discussed here.
Of course I find it odd that they feel FCC needs more expertise but make no statement at all about NTIA in this area. More later about this important report after some time for review.
What I Would Have Said to Pres. Obama at his Silicon Valley Dinner Last Night
Last night, President Obama had dinner in Silicon Valley with several local CEOs and VCs as shown above. Fresh from his Saturday Night Live appearance Mark Zuckerberg was one of the guests.
Oddly, I wasn’t invited even though I was just in the area last week. We do not know what was discussed other than the official statement statement dealing with “proposals to invest in research and development and expand incentives for companies to grow and hire, along with his goal of doubling exports over five years to support millions of American jobs.”
But if I was a Silicon Valley CEO or VC here is what I would have politely told the President. Capital formation for R&D in innovative wireless technologies that need nonroutine approvals, e.g. rulemaking action, is being inhibited by the FCC’s long term inability to resolve such questions on a predictable schedule or a schedule that move anything like “Internet speed”. John Muleta, former chief of FCC/WTB spoke at my Virginia Tech class recently and used the following chart comparing new technology approvals with corporate merger (“M&A”) approvals. Both are complex and difficult.
While new technology approvals theoretically are governed by Section 7 of the Communications Act, shown at right, for almost 30 years now the Commissio
This week the White House proposed The Wireless Innovation (WIN) Fund to provide $1.0 billion to NSF over the next five year for research on experimental wireless technology testbeds, more flexible and efficient use of the radio spectrum, and cyber-physical systems such as wireless sensor networks for smart buildings, roads, and bridges as well as $15.0 million in FY2012 for Enhancing Access to the Radio Spectrum (EARS) that will support research into new and innovative ways to use the radio spectrum more efficiently. The papers I read indicate that generally the federal government is not looking for new spending opportunities and any such spending would be more effective if there were similar private investment - the very thing that is inhibited by FCC’s poor track record in resolving new wireless technology issues.
Interior Implements White House's Scientific Integrity Policy:How About FCC and NTIA?
Washington Post columnist Ed O’Keefe published an article today about the Department of Interior’s implementation of the White House’s scientific integrity policy which has been a recurring theme here.
This policy states
The public must be able to trust the science and scientific process informing public policy decisions. Political officials should not suppress or alter scientific or technological findings and conclusions. If scientific and technological information is developed and used by the Federal Government, it should ordinarily be made available to the public. To the extent permitted by law, there should be transparency in the preparation, identification, and use of scientific and technological information in policymaking. The selection of scientists and technology professionals for positions in the executive branch should be based on their scientific and technological knowledge, credentials, experience, and integrity.
Now, a lot of the FCC’s jurisdiction is nontechnical - think of the famous ‘wardrobe failure” - and even some of the technical jurisdiction in spectrum management involves trades between costs of new service with respect to technical impact on existing spectrum users and benefits of the new service. But in spectrum policy I am reminded of what a distinguished telecom lawyer once told me, “Some questions actually have (objective) answers”.
For example, as FCC and NTIA tool up for a battle over LightSquared’s ATC application, it will be very tempting for opponents of it to just say that it will cause GPS interference inevitably. Now a poorly designed MSS/ATC system in the band adjacent to the GPS L1 signal will clearly cause interference just as a poorly designed TDD AWS-3 system next an FDD AWS-2 system will cause interference. But the key policy issue is whether clever engineers can come up with a set of design details to reduce this interference to an acceptable level comparable to naturally occurring outages. This should be considered in the context of the above quote from the White House, not in smoke filled rooms without the potential for objective review of the analysis - unless it is necessary to keep certain details of the public record to protect properly classified information. But even in that case, FCC or NTIA could ask for an independent review by a contractor with clearances or could set up a technical advisory committee with cleared members similar to the Defense Science Board.
There is anecdotal evidence within FCC that the famous FleetCall waiver that allowed the creation of NEXTEL and the resulting 800 MHz interference to public safety was identified by the technical staff of WTB’s predecessor as having an interference risk and that the staff urged an explicit condition on the waiver. We now know what happened when the waiver was granted without this condition. Had a scientific integrity policy been in place at that time, the resulting public safety interference could have been resolved quickly.
So why don’t FCC and NTIA emulate the progressive move by Interior in implementing the President’s scientific integrity policy!
[Your blogger has no financial interest or relationship with LightSquared]
White House Announces
"Startup America":Maybe a Good Time for FCC to "Rediscover" Section 7 and Start Complying with it?
The White House announced today “Startup America”, “a plan for winning the future by out-innovating, out-educating, and out-building the rest of the world.”
President Obama said, “Entrepreneurs embody the promise of America: the belief that if you have a good idea and are willing to work hard and see it through, you can succeed in this country. And in fulfilling this promise, entrepreneurs also play a critical role in expanding our economy and creating jobs. That’s why we're launching Startup America, a national campaign to help win the future by knocking down barriers in the path of men and women in every corner of this country hoping to take a chance, follow a dream, and start a business.”
NTIA’s parent, the Department of Commerce seems fully committed to the program
The Department of Commerce will expand the i6 Challenge to help foster the commercialization of clean technologies, and are finalizing a plan to allow entrepreneurs to request faster review of their patents, an initiative that should lower patent pendency times overall and speed the deployment of new ideas to the marketplace.
No indication whether NTIA will be involved just as there is no indication whether NTIA will follow the President’s earlier guidance that “each agency shall ensure the objectivity of any scientific and technological information and processes used to support the agency's regulatory actions.”
Readers may recall that FCC’s long term apparent disinterest in compliance with Section 7 of the Communications Act of 1934, as amended, has been a recurrent theme here. By contrast, let’s see what Commerce’s Patent and Trademark Office is doing as part of the new program:
U.S. Patent & Trademark Office (USPTO) Gives Applicants Greater Control Over Examination Timing and Enables Fast-Track Examination Within 12 Months: The USPTO is pursuing an Enhanced Examination Timing Control Initiative (Three-track Examination) to give innovators more control over the application processing and support a more efficient market for innovation. Under this initiative, applicants would be able to request prioritized examination (Track I), obtain processing under the current procedure (Track II), or request a delay lasting up to 30 months (Track III). Entrepreneurs who are seeking capital, or accelerated market penetration, may benefit from the prioritized examination offered by the Track I option. In contrast, those entrepreneurs working to commercialize more embryonic ideas may prefer the extended timeframe associated with Track III. Another benefit to entrepreneurs will be shorter overall examination queues.
Section 7 is not a perfect piece of legislation. FCC has never implemented rules for administering it. FCC could ask Congress to amend it or even repeal it rather than just ignoring it. If anything, at present it is false hope for entrepreneurs and may discourage investment in entrepreneurial firms from VCs who get a cynical view of FCC’s treatment of startups in recent years.
But why don’t FCC and NTIA get on the President’s bandwagon and make life easier for wireless startups by promising decisions on some plausible schedule and real use of objective scientific information by NTIA in its presentations to FCC on shared spectrum - limited in public disclosure only by the need to protect properly classified information.
Excellence in Engineering: 2nd FCC Staffer Earns MSEE
Most other federal agencies that employ large numbers of engineers fund MS programs for new hires as to most private employers. Thus the existence of this program is key for FCC to stay competitive in hiring engineers. FCC had a similar program in the 1970s but it died during the Reagan era budgets
Recently, Benham (Ben) Ghaffari of OET became the second FCC staffer to receive this degree. Congratulations to Ben on this accomplishment and we should all hope this worthwhile program survives the inevitable budget crunch coming to FCC soon.
The first degree recipient, John Kennedy, was recently promoted to Chief, Spectrum Coordination Branch, OET Policy and Rules Division - the group that is the day-to-day interface with NTIA and IRAC.
Wireless Innovation and Interference
The Unfinished Radio Revolution:
New Approaches to Handling Wireless Interference
cosponsored by Silicon-Flatirons, IEEE-USA, CTIA, New America Foundation, and FCBA.
Innovative wireless communications is important not just for wireless operators and manufacturers, but also for firms in other industries that depend on the latest technology for improving their productivity and for new non-telecom firms such as Amazon, E-bay, Netflix that are enabled by cutting edge technology. It is key to the health of the US economy.
Most other industrialized nations use a state capitalism form of spectrum management and wireless industrial policy that uses Soviet-style economic planning
In contrast, since late 1970s FCC spectrum policy has focused on technical deregulation and market forces to stimulate innovation and growth. This year is the 25th anniversary of both Qualcomm’s founding and the regulatory basis for Wi-Fi and Bluetooth – all products of this deregulatory ferment.
Spectrum deregulation has a core goal of interference prevention:
- Assuring incumbents of realistic expectations so as to stimulate their investment AND
- Assuring innovators and entrepreneurs a transparent and timely red light/green light system for determining if innovative systems will cause “harmful interference”
FCC got it right in the Wireless Innovation NOI when it said
The viability of spectrum access for new radio services often centers on whether the new service may cause harmful interference to incumbent services. This can lead to delays through protracted rule making proceedings that can create uncertainty and discourage investment.
In the Northpoint/MVDDS, UWB, and AWS-3 proceedings we saw deliberations of harmful interference that not only violated the timeliness requirement of Section 7 of the Act but were totally inconsistent with any plausible business plan of a startup entrepreneur. Today’s capital markets make investments for such innovative technology almost impossible due to the excessive regulatory risk resulting from FCC’s slow deliberations.
Qualcomm got its key regulatory decision for CDMA 2 years after its founding. Such decisiveness in innovative spectrum policy is impossible today
Spectrum policy determination by fiscal exsanguination of entrepreneurs is both ineffective and inconsistent with our form of government.
If we can’t get spectrum deregulation and interference policy correct, the USA might be better off just joining CEPT and taking an active role in their spectrum management system - based on Soviet style economic planning.
Basic technical Issues in defining radio rights or interference
Receiver Standards
Explicitly stated expectations for adjacent channel rejection and intermodulation vulnerability, e.g. 3rd order intercept point, are urgently needed for each radio service in order to resolve harmful interference issues in a timely way. These standards should not be mandatory - which is just as well since FCC in general does not have such jurisdiction at present.
I/S Protection at Receiver
Made simpler by digital convergence. In most cases I/S of - 6 to -10 db is adequate, former mixed analog environment was more complex. However, CDMA systems have more complex concerns since interference translates into capacity. But environment noise levels set a natural baseline
I/S Field Strength at the Antenna vice I/S Power at the Receiver
MIMO technology is increasingly practical so in many cases some rejection by antennas should be considered
Propagation Models
Much of the controversy over TV white space results from the use of a 1966 precomputer age propagation model that FCC itself has said has severe limitations in its applicability. While propagation is an esoteric field, inappropriate models can warp any spectrum rights regime
MCL vice Stochastic Modeling
Incumbents prefer that the worst case MCL (minimum coupling loss) scenario is decisional. While FCC has a limited record of using stochastic modeling , both FCC and NTIA have no clear policy in this key area. However, in Europe, stochastic modeling is often used
Acceptable Interference Statistics
How much interference is acceptable? In the MVDDS decision FCC used naturally occurring rain outages as a baseline and decided to accept a 10% theoretical increase – something not noticeable in practice. FCC and NTIA should consider the general issue that naturally occurring outages in space and time should be considered as a reference point although the allowed increased should be determined on a case by case basis
Who should make detailed spectrum rights proposal for public consideration?
It is key that FCC and NTIA work in parallel here to develop consistent policies
Doubtful that present FCC or NTIA can develop a level playing field interference protection scheme that deals with both incumbents and new entrants fairly
In the 1970s, FCC - like other federal regulatory agencies with key long term technical policy dilemmas - asked National Academy of Sciences/National Research Council to propose regulatory framework for what later became Parts 25 and 68 – at the time exceedingly controversial issues opposed by powerful interests. The resulting C band terrestrial/satellite sharing and telephone interconnection resulted in tremendous economic growth and were emulated all over the world.
FCC and NTIA should consider asking NAS/NRC to repeat its past role – and the role it regularly plays for other agencies – to draft a specific framework for determining interference rights that balances all interests. It will never be an objective definition, but a framework that speeds up the present process will increase certainty for BOTH incumbents and innovators.
Your blogger’s detailed paper on this topic
ex parte R&O on Circulation
A recent review of the FCC’s Items on Circulation page revealed the surprising news that the ex parte rulemaking, Docket 10-43, was on circulation on the 8th Floor. While most of the FCC’s decisions are actually handled on circulation without public “discussion” at monthly meetings, it is unusual for such an initiative that was launched with great fanfare of transparency improvement to be suddenly shifted to the obscurity of circulation.
While the supporters of smoke filled rooms may be cheered by this move, those of us hoping that the new commissioners would keep to their pledges of transparency improvement are concerned.
Report on Staff Professions in National Telecom Regulatory Agencies
Steve Crowley’s blog has a new post entitled “Staff at the FCC: How Many Lawyers, Economists, and Engineers?” that describes a recent report from the German consulting firm WIK-Consult GmbH (a spinoff from the former W. German Bundespost/PTT). The report, Drivers and Effects of the Size and Composition of Telecoms Regulatory Agencies was written by J. Scott Marcus, a former senior FCC staffer and no relation to your blogger, and Juan Rendon Schneir.
The report is based on data from the following regulatory agencies: Canada (the CRTC), France (ARCEP), Germany (the Federal Network Agency, or BNetzA), the Netherlands (OPTA), New Zealand Commerce Commission (NZCC), Peru (OSIPTEL), Spain (CMT), Sweden (PTS), the United Kingdom (Ofcom) and the United States (FCC). They then tabulate the professional backgrounds of the staff at each agency.
One of the problems with this type of analysis is that the 10 agencies examined have overlapping but different jurisdictions. The Canadian CRTC only has 7 engineers because if doesn’t deal with spectrum policy which is mainly in the jurisdiction of Industry Canada. The French ARCEP is more like the old FCC Common Carrier Bureau - it also has some postal functions - and French spectrum policy is more in the control of ANFR. Thus it is difficult to compare apple with apples, not oranges.
Comparison of professions in national regulators
Based on a FOIA request to FCC, WIK found out that FCC now has 268 engineers, 55 economists and 542 lawyers. Actually I was surprised by this, because throughout most of my career engineers were the most numerous professional group although few were in policy positions. The WIK researchers then got the graph shown at the top of this post which compares ‘senior managers” among the 10 agencies. I suspect OET Chief Julius Knapp is the only engineer senior manager considered in the report, emphasizing the imbalance with respect to regulators in other countries. The WIK report comments “Particularly striking was the skills distribution among senior managers in the United States, where of 23 senior managers who were categorised for this study, 22 were lawyers, only one was an engineer, and none were economists.”
The report makes interesting reading as FCC struggles with how to deal with the technical issues that are at the core of many key telecom issues.
How About Some Transparency in the Handling of Petitions?
The top of this post is a January 2010 FCC public notice (PN) asking for comment on 3 petitions for rulemaking and 2 petitions for declaratory rulings. As the annotations in red indicate, the oldest petition involved was almost 5 years old when the PN was released. (As can be seen in the dates above, all these petitions arrive prior to the current Chairman. This is a longstanding problem going back more than a decade.)
I did some discreet inquiries after this PN was issued and was surprised to find out that 8th Floor staffers do not have routine access to lists of petitions that have been filed or even petitions that are siting with action x months after filing. It as not even clear if the Chairman’s Office has routine access to this information. Petitions apparently go to bureaus and offices and just sit around until someone decides to act on them - or not. One always has the options of going to the District Court and asking for a writ of mandamus, but that is possibly the only option. Since the existence of these petitions can be secret, it is difficult for interested 3rd parties to find out about them and try to pressure/embarrass the Commission into acting.
Some modest suggestions:
1. The Commission create an internal tracking systems for such petitions and report all filings to all commissioners within a month of filing.
2. The Commission create a public tracking system, analogous to the FCC Items on Circulation webpage, that documents all petitions more than 3 months old that have not been acted on and makes the text available for public inspection. This need not be a PN requesting comment, just an acknowledgement that the petition has been filed and is under review.
"The FCC should be a model of openness, transparency, and a fair, data-driven process."
Julius Genachowski's confirmation hearing for FCC chairman before the Senate Science, Commerce, and Transportation Committee
(Emphasis added)
While ex parte Rulemaking & Enforcement Complaint Linger in Limbo, MSTV Alternates Between Compliance and Its Old Ways
Previously we have written about our numerous complaints about MSTV’s past flagrant violation of the Commission’s ex parte rules (significantly more than any other party we are aware of), the FCC/OGC staff’s preference to dismiss such complaints out of hand in an apparently arbitrary and capricious manner, and our pending Petition for Review on this matter that has been pending in 8th Floor circulation since 02/25/2010. (In fairness to the OGC staffers involved, they may just be acting at the behest of political appointees.)
Curious readers might be wondering how MSTV is behaving during the pendency of this matter. Have they cleaned house and become perfectly in compliance as NAB has been for a long time? Or have they noticed that in the more than 3 years since these original complaints were filed that they have escaped all criticism, let alone any penalties?
The answer: A little of both as seen below.
However, March was a bad month for these fabled protectors of the rights of large TV broadcasters against the advocates of broadband for all. In March all the following filings were late:
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020397659
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020397641
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020397663
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020397644
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020397654
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020397638
Is there at the very least a “by your leave” apology for these late filings, perhaps blaming a dog for eating some paper? Not that we can find so far.
Here are some other late MSTV filings within the past year:
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020352105
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020352104
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020352103
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020036571
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020036570
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020036569
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020036568
[Note that some of these filings may be duplicates filed repeatedly. However, I do not believe that FCC Rules permits multiple late filings of the same document as a remedy for lateness. Indeed, multiple filings of the same document complicates the work of both the Commission and other parties unless they contain a correction of a previous error or omission. It is customary in FCC practice to state that is a filing is a correction of a previous filing. None of the above filings give any indication that they are corrections]
Thus out of 101 ex parte filings in the past year, a few joint with the letter perfect NAB, MSTV, the subject of a longstanding ex parte complaint, was apparently late on 13 -- even while their previous performance was under review at FCC. But since MSTV has never received as much as a warning note from the Commission staff on previous apparent violations, they probably have logically assumed that they are exempt from compliance. It is the clear Pavlovian conclusion from FCC behavior.
Thus it is interesting to read a 7/16/10 comment, actually a late filed comment, from the FCBA Access to Government Committee that says,
While the FCC should enforce its rules, including the ex parte rules, there is no demonstrated need for increased sanctions or a dedicated effort to enhanced enforcement. The FCC should be able to continue to address any violations within its existing remedies.
FCBA guys: It is clear that in the 30 years since the FCC adopted ex parte rules it has consistently shown zero interest in enforcing them. Can you point to any enforcement action FCC has ever taken?
The FCBA group also states
For instance, the NPRM asks for comment on requiring staff filings following ex parte presentations. In our experience, this would be burdensome to staff and would provide a disincentive for staff members to meet with the public. While staff members should be free to submit an ex parte notice, they should not be required to do so.
FCBA guys: Yes there are advantages of the unique system FCC has with respect to FCBA members getting quick appointments with FCC staff. But in this day of e-mail is that so important? Every other federal agency that does rulemaking uses an approach where the staff summarizes the ex parte meeting. If you want the current system to continue shouldn’t you help FCC increase its compliance with respect to your membership? Continued FCC tolerance of the few bad actors could ruin it for all! There appears to be a “code of silence” among the FCBA membership about ex parte complaints not withstanding the requirements of §1.1214
Sec. 1.1214 Disclosure of information concerning violations of this subpart.
Any party to a proceeding or any Commission employee who has substantial reason to believe that any violation of this subpart has been solicited, attempted, or committed shall promptly advise the Office of General Counsel in writing of all the facts and circumstances which are known to him or her.(Emphasis added)
Does the FCBA leadership want us to believe that their their members in the past 30 years have never had “ substantial reason to believe that any violation of this subpart has been solicited, attempted, or committed”? I am willing to believe that compliance might be in the 90% range, but it isn’t perfect.
Related MSS filing in ex parte rulemaking (Docket 10-43)
FCC Significantly Improves in OPM Employee Survey
Monday, FCC issued a press release on the results of the 2010 OPM Viewpoint Employee Satisfaction Survey that quoted Chairman Genachowski as saying,
“I am delighted that the FCC has been recognized as the ‘most improved’ federal agency. The survey results reflect the hard work being done throughout the agency to make the FCC a model of excellence in government.
"The FCC’s reform agenda, which builds on the impressive strides made by Commissioner Copps as acting chairman, includes creating new opportunities for employees to provide feedback; improving employee communication through technology and new media; and focusing on leadership development and opportunities for employees. I applaud the work of the FCC management and staff and look forward to more great things to come."
Long time blog readers may recall that this survey, previously called the Federal Human Capital Survey, has been a recurring topic here. A topic in which FCC has done extremely poorly in the past.
In May 2009 we wrote,
“FCC ranked 28th out of 32 ranked small agencies. Its score of 55.0 also put it lower than all the large agencies except the Department of Transportation. The only small agencies scoring worse than FCC were: International Boundary and Water Commission, Selective Service System, Broadcasting Board of Governors, and Federal Labor Relations Authority. Also (only) 20 out of the 216 ranked "agency subcomponents" ranked lower than FCC including FAA, FEMA, TSA, and FCC's neighbor - Bureau of Engraving and Printing.
NTIA was not treated as a subcomponent so there is no data on it.”
Earlier we described how the Commission’s ancien regime had dodged early OPM surveys even though they were a well publicized and admirable Bush 43 Administration initiative. Well FCC is now fully on board and is moving up in the ratings, although Chmn. G. did overreach a bit on the “ ‘most improved’ federal agency” a bit. As the image above from the report shows, OPM only identified FCC as one of 11 agencies with the “highest increases since 2008”.
The raw data shows the very positive improvement since the former chairman left. On the questions “I feel encouraged to come up with new and better ways of doing things”, in 2008 52% of FCC staffers either strongly agreed or agreed, now it is 62%.
On “My work gives me a feeling of personal accomplishment”, formerly 60% either strongly agreed or agreed, now it is 70%.
On “I can disclose a suspected violation of any law, rule or regulation without fear of reprisal”, there was a big jump: formerly 45% either strongly agreed or agreed, now it is 67%. Perhaps this points to the need to have a credible long term inspector general at FCC - a recurring theme in this blog. While it is laudable that there is great improvement here, what can be done to prevent a low score in the future?
There were also large increases in positive responses to both “Arbitrary action, personal favoritism and coercion for partisan political purposes are not tolerated.” and “Prohibited Personnel Practices are not tolerated” making one wonder what was really going on under the ancien regime? Perhaps another indication of what happens when there is not a credible IG in an agency or perhaps this is why the previous chairman did not want a credible IG!
Finally on “I have a high level of respect for my organization’s senior leaders” formerly 38% either strongly agreed or agreed, now it is 62%!
So congratulations to Chmn. Genachowski and the new team on this major turn around!
So When are the Comments Actually Due?
On May 20, 2010, the Consumer & Governmental Affairs Bureau of the Federal Communications Commission (Commission) released a Public Notice (Notice) seeking to gather information on the feasibility of instituting usage alerts and cut-off mechanisms similar to those required under the European Union (EU) regulations that would provide wireless voice, text, and data consumers in the United States a way to monitor, on a real-time basis, their usage of a wireless communications service, as well as the various charges they may incur in connection with such usage (e.g., roaming services, voice service “minute plans,” text message plans). Specifically, the Commission sought comment on whether technological or other differences exist that would prevent wireless providers in this country from employing similar usage controls as those now required by the EU.
The Notice was published in the Federal Register on May 20, 2010. Therefore, comments are due on July 6, 2010, and reply comments are due on July 19, 2010. Comments should be filed consistent with the instructions provided in the Notice.
Great! But what about the other umpteen ongoing FCC proceedings? How do we find out their comment dates? The bureaucratic response is to keep searching the Federal Register for the docket number and the due date which relative to the FR publication date- maybe a week after FCC release of the document, maybe a month later. Another way is the regulations.gov website which isn’t mentioned on the FCC homepage. It has many, perhaps all, the comment dates of pending FCC proceedings.
.
However, it does not appear to give reply comment dates directly since reply comments are not required by law and some agencies don’t use them. However, this site does give you access to the Federal Register notice of the docket where you can look for the dates.
At one time OET tried to keep track of the comment dates of its dockets in order to ease the task of the public. But this web page is now way out of date and other parts of FCC never even tried to help the public with this task until FCC/CGAB issued this PN.
So rather than increase the clutter on the FCC homepage with special PNs on topics of special political interest, why not have a general solution to this problem, possibly like a generalization of the OET attempt?
Do the Telecom Policy Agencies Need a "Steven Chu"?
The above item appeared recently on Scott Harris’ Facebook page. Scott worked at FCC under Chairman Hundt as the original Chief, International Bureau. He was one of the finest public servants I have ever worked with, always focusing on the bottom line public interest issues. After leaving FCC he had his own law firm for many years, but now is back in public service as General Counsel of the Department of Energy.
Steven Chu is an American physicist and currently the 12th United States Secretary of Energy. Working at Bell Labs and Stanford University, Chu is known for his research in cooling and trapping of atoms with laser light, which won him the Nobel Prize in Physics in 1997. At the time of his appointment as Energy Secretary, he was a professor of physics and molecular and cellular biology at the University of California, Berkeley and the director of the Lawrence Berkeley National Laboratory, where his research was concerned primarily with the study of biological systems at the single molecule level.
As the interview in The Atlantic shows, he clearly has a hands on understanding of his agency’s technology. Which started me wondering, in the 3 telecom policy agencies, FCC, NTIA, State/CIP why don’t we have at least one person vaguely comparable to Steven Chu as a political appointee since telecom also has many highly technical aspects? I figure there are 5 presidential appointees at FCC, 2 at NTIA, and 1 at State/CIP. In addition there are at least a dozen “noncareer”/political senior appointees between the 3 agencies.
Comm. Sterling
It is not that the current Administration’s appointees are any worse than the past few decades. Indeed, one could argue that Chmn. Genachowski has more high tech business experience than any of his predecessors. But I don’t see any National Academy of Sciences/National Academy of Engineering members or even almost members among all 3 agencies’ twenty or so senior political appointees.
Technical policy is an integral party of telecom policy. Isn’t there room for at least 1 techie among all these political appointees? Secretary Chu shows that techies can be political appointees and succeed. Why limit this to energy policy?
A Tale of 2 Regulatory Commissions
While I worked at FCC, a colleague used to criticize me for comparing FCC to NRC. But I guess it is OK now that the ex parte NPRM actually compares the two agencies in that area. Hope you surf over to the PK blog and see what I wrote there.
The PK post also includes a suggestion I made on the reboot.FCC.gov site to require conferences that host key FCC speakers to provide the FCC website with videos of the presentations in a timely way. Feel free to go to that site and blast the idea as hopeless naive or even possibly support it.
FCC ex parte NPRM - Initial Thoughts
“I believe that transparency is best achieved through the creation and publication of clear rules. However, for the regulatory regime to be successful, these rules must also be strictly enforced. Based on personal experience, I know that the U.S. regulatory model has only been successful when the FCC has enforced its rules vigorously. Failure to enforce rules sends the inappropriate signal that companies may engage in anticompetitive behavior or other unlawful conduct with impunity.”
Let me provide for potential commenters some facts that are not in the NPRM.
1. In 2009, there were 6070 ex parte notifications filed at FCC. The numbers for 2008 and 2007 were 10,046 and 7,960 respectively. I assume that the drop in 2009 was due to both the inevitable drop in activity with major changes at the Commission and the distraction of the DTV transition.
2. I believe that the Commission’s ex parte rules were heavily influenced by Recommendation No. 77-3 of the former Administrative Conference of the U.S., formerly codified as 1 C.F.R. 305-77.3. The HBO Case mentioned in Chmn. Genachowski’s statement was in March 2007 and the ACUS recommendation was made in October of that year. The ACUS recommendation stated “Agencies should experiment in appropriate situations with procedures designed to disclose oral communications from outside the agency of significant information or argument respecting the merits of proposed rules, made to agency personnel participating in the decision on the proposed rule, by means of summaries promptly placed in the public file, meetings which the public may attend, or other techniques appropriate to their circumstances.”
3.While the NPRM mentions ex parte policies at 3 other commissions, it fails to mention the key fact that parallel policies are in place at all regulatory agencies, be they independent agencies like FCC or Executive Branch agencies. But only FCC has the system where the outside party files the summary that goes on the public record. Thus in the 30 odd years that ex parte procedures have been used for agency rulemaking, no other agency has ever adopted the FCC’s approach. Perhaps the Commission should ask why?
4.Finally, the NPRM states in para. 32 “Regardless of what amendments are adopted in this proceeding or when, we intend to place greater emphasis on enforcement against impermissible ex parte contacts.” This implies there has been some previous emphasis on enforcement. A fairer statement is that enforcement has been ignored for decades. At the October public workshop the staff stated that it dealt with complaints by calling the party at issue and telling them not to do it again. This is reminiscent of the comedy skit in which an unarmed British policemen says to a fleeing robber “Stop or I’ll say stop again”. As far as I can tell, the Commission has NEVER taken ANY ex parte enforcement action. While the NPRM mentions the possibility of “monetary forfeitures”, I doubt that it has legal authority to do so. However, it does have the authority - unused to date - to forbid future oral ex parte by the guilty party and that should be more than adequate IF there is ANY interest in enforcing these rules.
UPDATE
Your blogger’s Petition for Review has finally made it to circulation on the 8th Floor more than a year after it was filed. This was not a very complex matter although it may be the first time ever the commissioners had to formally consider enforcement of their rules.
Stay tuned for the outcome. How much longer could it take?
Ex Parte Reform Proposal at FCC
Oddly, MSTV has nothing on their website yet on the topic.
Ex parte Reform Proposals Imminent
- The Commission will consider a Notice of Proposed Rulemaking to enhance the efficiency, openness, and transparency of the Commission’s proceedings by improving and modernizing certain organizational and procedural rules.
- The Commission will consider a Notice of Proposed Rulemaking to improve the transparency and effectiveness of the FCC’s decision-making process by reforming the ex parte rules.
So it looks like the new team is making good on their promises for reform in ex parte and other procedures. Faithful readers may recall that ex parte reform and transparency have been frequent topics here. Who knows, they may even act on your blogger’s Petition for Review on an ex parte issue that has been pending for 17 months - even though it is mentioned nowhere on the FCC website.
FY 2011 Budget & Spectrum
Today the President’s FY 2011 budget was unveiled throughout the government. So let’s look at how spectrum was affected.In the FCC’s budget we set a modest increase of the total agency budget from $428M to $443M (Grand Total Proposed Budget Authority) and staff increase from 1,905 to 1,980.
Spectrum No Longer a Strategic Goal
While not explicitly stated, the FCC’s strategic goals have changed and this will affect the resources for spectrum activities. For several years up to and including the FY10 budget the strategic goals of FCC were: Broadband, Competition, Spectrum, Media, Public Safety, and Modernize. This year they are: Broadband, Consumers, Competition and Innovation, Continual Improvement, Public Safety and Homeland Security, and International. Guess what’s missing? This means that spectrum also does not have Performance Commitments and Metrics in the budget and is likely to get less management attention except in the international area where it is explicitly part of the International goal. No doubt the well connected satellite industry will get its attention and others may get crumbs. We will see.
There are two proposed legislative changes related to spectrum:
Spectrum Auction Authority
The Administration proposes to extend indefinitely the authority of the FCC to auction spectrum licenses, which will expire on September 30, 2012. The additional offsetting receipts associated with this permanent extension are estimated to total $1.6 billion through 2020.
This proposal supports the Administration's efforts to foster new wireless broadband technologies by making new spectrum available. Specifically, the National Telecommunications and Information Administration of the Department of Commerce will collaborate with the FCC to develop a plan to make available significant spectrum suitable for both mobile and fixed wireless broadband use over the next ten years. The plan will focus on making spectrum available for exclusive use by commercial broadband providers or technologies, or for dynamic, shared access by commercial and government users, on either a licensed or unlicensed basis.
Spectrum Licensing User Fee
To promote efficient use of the electromagnetic spectrum, the Administration proposes to provide the FCC with new authority to use other economic mechanisms, such as fees, as a spectrum management tool. The Commission would be authorized to set user fees on unauctioned spectrum licenses based on spectrum-management principles. Fees would be phased in over time as part of an ongoing rulemaking process to determine the appropriate application and level for fees. Fee collections are estimated to begin in 2010, and total $4.8 billion through 2020.
The first one puts legislative pressure on NTIA to find more spectrum for the commercial community. One can hear the IRAC protests already. The second means that ALL spectrum users (presumably excepting only noncommerical uses such as public safety) may have to pay for spectrum access. At present chosen groups, like Part 74 licensees, get spectrum for free while others pay for it. Marcus’ First Law of Spectrum Economics: ‘If spectrum is free, then more spectrum is always cheaper than efficient technology”.
The staffing in OET was 84 in FY 09, is budgeted at 90 now, and is proposed to increase to 96 in FY 11. (By contrast when I was hired in 1979, I was #155. Some functions have moved from OET, but that does not account for all this drop.)
Spectrum inventory work is in the budget:
Spectrum Inventory and Broadband Mapping Data: $2,400,000
• Spectrum Inventory: The spectrum inventory initiative is designed to enable user-friendly access to information regarding spectrum bands and licenses, including those that may be suitable for wireless broadband deployment. The FCC’s spectrum inventory activities will focus on providing general information about commercial and non-commercial use of spectrum bands, by users other than federal users, in the mobile range of 225 MHz to 3.7 GHz, as well as more detailed information about bands of particular relevance to broadband. The public will be able to easily browse spectrum bands, search for spectrum licenses, produce maps, and download raw data for further analysis. Through a single FCC portal, users will be able to access basic information on licenses (e.g., licensee name, contact information, frequency bands) as well as descriptions of frequency bands and allocations. Further, the spectrum inventory will include the capability to search for licenses based on commonly recognizable names of companies (e.g. AT&T, Verizon, etc.), and the amount of spectrum held by licensees on a county-by-county basis for many types of licenses. The initiative contemplates continuing improvement and augmentation of the spectrum inventory over time with inclusion of more comprehensive data. The spectrum inventory is intended to assist in ongoing spectrum policy planning and decision- making, promote a robust secondary market in spectrum, and improve communications services in all areas of the United States, including rural and underserved areas as well as tribal lands.
There is a new public safety initiative that is not entirely clear at this time:
Emergency Response Interoperability Center: $1,500,000
The long term mission of the Emergency Response Interoperability Center (ERIC) will be to ensure the operability and interoperability of public safety wireless broadband communications capabilities. The funding provided will be to establish ERIC so that it is operational in advance of the deployment of the public safety broadband wireless capabilities. One function of ERIC will be to establish an advisory function for members of the public safety community and other federal government agencies, including [FCC], DHS and NTIA[, and will work in close coordination with the Department of Homeland Security’s Cyber Security and Communications Directorate]. The long term goal of ERIC is to establish a public safety broadband interoperability communications profile including interoperability standards, authentication, encryption, roaming, priority access, application uses and interconnectivity which will be used to set baseline requirements for public safety users. In addition, public safety broadband capabilities are deployed, ERIC will resolve interoperability-related disputes between public safety entities, work with third parties (e.g., federal government, state and localities, tribal nations) on broadband infrastructure sharing, and maintain relevant databases, among other things. This important initiative will help to remedy historic barriers to public safety communications interoperability, and is a key element of next-generation public safety communications capabilities.
On the NTIA part of the budget, spectrum management staffing stays fixed at 32, although there is a 3 person increase in research at ITS in Boulder CO. This is for a program called Spectrum Access with Intelligent Networks and Cognitive Radios which is described as
The goal of this research program is to examine spectrum sharing approaches and to identify the techniques that can provide the most efficient and effective sharing of the radio spectrum through the use of “Intelligent Radios.” This research will aid the NTIA, the FCC, the telecommunications industry, and other government agencies in the design of dynamic spectrum access schemes for cognitive radio under different communication requirements. The research will also produce interference protection criteria (IPC) for all types of Federal Government radio and radar systems and provide insights and solutions for technical issues associated with spectrum sharing. Under this initiative, NTIA’s Institute for Telecommunication Sciences (ITS) will identify, evaluate, and recommend solutions for the technical issues and challenges of spectrum sharing.
Over the next five years, ITS will produce a number of publications that will provide U.S. federal agencies and commercial service providers, with interference protection criteria and evaluations with respect to various cognitive radio approaches and technologies. Several U.S. federal agencies, along with commercial service providers, will benefit from this information. The FCC and NTIA, with responsibility for spectrum management, are very interested in what cognitive radio technology has to offer and how it would affect their current regulatory scheme. The military and the public safety and emergency response communities see the benefits that this new radio technology offers, with frequency agility and/or flexibility, the ability to enhance interoperability between different radio standards, and the capability to sense the presence of interferers. Other countries and international agencies such as the International Telecommunications Union (ITU) also are looking to adopt similar cognitive radio approaches to increase spectrum utilization.
The budget says this program will “ aid the NTIA, FCC, the telecommunications industry, and other government agencies in the design of dynamic spectrum access schemes for cognitive radio under different communication requirements.”
The effect of spectrum’s disappearance as a strategic goal could be important. I hope industry and the press insist on clarifications here.
GAO 12/09 Report on FCC Management
At the end of the 2009, GAO issued a report on FCC. This is yet another of the 100 reports they have written on FCC in the past decade. This report goes into a variety of topics so it will take more than 1 post to discuss them all. Due to the timing of the report (it was based on observations from August 2008 to October 2009), it deals mainly with what the new team inherited from its predecessors including some problems that actually go back decades.From the summary, here are some of the issues that we shall discuss today:
- FCC lacks internal policies regarding commissioner access to staff analyses during the decision-making process, and some chairmen have restricted this access. Such restrictions may undermine the group decision- making process and impact the quality of FCC’s decisions.
- In addition, GAO identified weaknesses in FCC’s processes for collecting public input on proposed rules. Specifically, FCC rarely includes the text of a proposed rule when issuing a Notice of Proposed Rulemaking to collect public comment on a rule change, although some studies have noted that providing proposed rule text helps focus public input.
- Additionally, FCC has developed rules regarding contacts between external parties and FCC officials (known as ex parte contacts) that require the external party to provide FCC a summary of the new information presented for inclusion in the public record. However, several stakeholders told us that FCC’s ex parte process allows vague ex parte summaries and that in some cases, ex parte contacts can occur just before a commission vote, which can limit stakeholders’ ability to determine what information was provided and to rebut or discuss that information.
The report raises questions about the objectivity of technical analysis from my former OET colleagues:
• Establishing that each commissioner, including the chairman, has equal responsibility and authority in all commission decisions and actions, and has full and equal access to all agency information pertaining to commission responsibilities.
• Balancing commissioner access to staff analyses with the ability of the chairman to direct resource expenditures. For example, although individual commissioners can request information or analyses from NRC staff, if the request requires significant resources to fulfill and questions of priority arise, the office or the commissioner can request the chairman resolve the matter. If the chairman’s decision is not satisfactory to the requesting commissioner or the office, either can bring the matter for a vote before the full commission.
This is very different than recent practice at FCC.
On the NPRM issue, my former OET colleagues actually have probably the best record in the agency for including rules with NPRMs. I used to joke that the former Common Carrier Bureau produced NPRMs without rules and NOIs without questions.
Faithful readers will recognize the ex parte reform has been a recurring theme here. The Commission’s 10/28/09 workshop on these issues shows that these issues are getting top level attention although there has been no substantive action yet. Indeed, our 8/25/08 petition for review of the staff dismissal of an ex parte complaint still has not been acted on and remains totally “out of sight, out of mind” on the Commission’s present website.
We will talk soon about other issues in the report. I strongly recommend that you read it as it contains a wealth of useful background material.
Reboot.FCC.gov Update
Your Blogger's Suggestions Doing Well
In the voting on the FCC suggestion site, your blogger's suggestions seem to be doing rather well.
The top suggestions so far deal are the following:
- Require at least one FCC Commissioner to be an engineer - 30 votes
- Get rid of the BPL - 25 votes
- Automatically renew an Amateur Radio License for a full 10 year term when the operator upgrades - 19 votes
- Get rid of rules that cannot be enforced such as the GMRS license requirement - 18 votes
But the next highest vote is the suggestion shown at the top of the pagee. If you agree, could you surf over to the website, signin in with either your Facebook/Google/Yahoo etc. account or you can create a new UserVoice account, and consider voting for this suggestion and others you find of value. Better yet, input your own ideas.
I received the following reply from Steve Crowley to a previous blog post which I shall repeat here:
"Relatedly, in September, the FCC received a Petition for Rulemaking from a proponent of wireless technologies intended to reduce cell phone use that might cause distracted driving. As far as I know there was no Public Notice from the FCC. I wonder if there have been similar filings, given the current elevation of the issue of distracted driving? Thus, I support your proposal to publish lists of all Petitions that have been filed. The Petition I am referring to can be found on the proponent's web site: http://www.trinitynoble.com/pdf/FCC_Petition_4_Rulemaking.pdf"
This complements well a suggestion by Richard Weil that I have commented on at the FCC site. You might want to support that suggestion also.
Delay at FCC
Docket 10-4: "FCC is Finally Moving on Signal Booster Use" Urgent Communications, 1/13/10
On January 6, FCC at long last started to take action on the long standing issue of cellular "signal boosters" or bidirectional amplifiers. The current management can't be blamed too much for inaction because they inherited this mess and are at least taking action to start solving it. But there are key lessons to be learned here on both FCC procedures and the cost of inaction to many different parties.
Here are some excerpts from the public notice initiating this docket:
By this notice, we seek comment on three Petitions for Rulemaking and two Petitions for Declaratory Ruling (collectively, Petitions) regarding the proper use of signal boosters on frequencies licensed under Parts 22, 24, 27, and 90 of the Commission’s Rules.
...
On August 18, 2005, Bird Technologies, Inc. (Bird Technologies) filed a Petition for Rulemaking to amend section 90.219 to outline specific technical and operational requirements for the use of signal boosters by Part 90 licensees.
...
On November 2, 2007, CTIA, the Wireless Association (CTIA) filed a Petition for Declaratory Ruling (CTIA Petition) regarding the proper use of signal boosters in Commercial Mobile Radio Services (CMRS).
...
On September 25, 2008, Jack Daniel DBA Jack Daniel Company filed a Petition for Declaratory Ruling seeking clarification of the Commission’s rules regarding signal boosters.
...
On October 23, 2009, the DAS Forum (a membership section of PCIA-The Wireless Infrastructure Association) filed a Petition for Rulemaking in response to the CTIA Petition stating that a rulemaking proceeding is needed to address the marketing, installation, and operation of signal boosters used in the Cellular Radiotelephone and Personal Communications Services.
...
On November 3, 2009, Wilson Electronics, Inc. (“Wilson”) filed a Petition for Rulemaking asking the Commission to commence a proceeding to amend Part 20 of its rules to establish standards for the certification of signal boosters for subscriber use on CMRS networks by developing equipment certification requirements to ensure boosters are available to the public.
So FCC has a series of petition on a technical wireless issue going back almost 5 years. None of these have been on public notice or were even publicly disclosed by FCC. Indeed, there was little indication other than press coverage that this issue existed. While the CTIA petition was on its website, the other petitions were nowhere to be seen. It is for this reason that your blogger has urged FCC to publish lists of all petitions that have been filed. Note that this suggestion is doing rather well in the voting on the FCC reboot FCC site. (Feel free to add your own vote!) Some quiet staff review time to decide whether a petition is redundant or not within the Commission's jurisdiction makes sense, but there should be weeks, not years!
We note that the NPSTC (a well respected federation of 13 public safety member organizations) 1/06 Newsletter had a lead article entitled "In-Building Coverage BDA Rule Changes Needed Today". Yet the previous FCC management was unable to act. So 2 private firms as well as CTIA and NPSTC urged Commission action years ago and nothing happened.
The recent PN says
When properly installed, these devices, which can either be fixed or mobile, can help consumers, wireless service providers, and public safety first responders by expanding the area of reliable service to unserved or weak signal areas. However, as articulated in the Petitions, improper installation and use of these devices can interfere with network operations and cause interference to a range of communication services.
This is partially correct. But the issue is not just installation. Some manufacturers' amplifiers are designed to prevent oscillations which are the dominant cause of interference to cellular systems. Wilson Electronics states in its petition that all of its amplifiers have used such a design since 2006. But because of FCC inaction this is not a universal practice. So the result of inaction on the CTIA petition has been both the continuing sale of designs that are capable of causing interference, the loss of sales to manufacturers making better (more expensive) amplifiers, and capital formation problems for new companies that seek to make noninterferring equipment. So it has been a lose/lose situation for everyone involved except those making cheap equipment capable of causing interference.
Of course, if CTIA and its membership had been more pragmatic and tried to negotiate a compromise with the amplifier manufacturers to ask FCC jointly for reasonable technical standards then this problem would be much closer to solution. So there is enough blame to go around.
But the key thing to learn here is that the 3000 pages of FCC Rules deal with a highly technical jurisdiction and that they need fine tuning on a regular basis to address problems that were not considered when they were written or new technologies that might be implicitly forbidden. This is not as exciting to the 8th Floor as other issues like broadband and broadcast ownership and content but it also needs timely attention on a continuing basis. The Commission must find a way to keep working on all parts of its jurisdiction all the time and not get sidetracked by the problem du jour. So while Docket 10-4 has now started on its way to resolution, we must find a way to prevent future logjams like this.
The rest of the story ...
Reboot FCC: Initial Results of Website
Suggestion Scorecard
Last week FCC opened the public version of reboot.fcc.gov including a call for suggestions in response to 47 issues. Here is the scorecard of suggestions received as of10:30 AM EST 1/11. The questions "How can the data released on FCC.gov/data be better formatted so as to be more useful to the public?" is by far the most popular. Perhaps being first in the list is a major contributor to this lead.
In any case, vox populi, vox dei, we hope you check up on the suggestions, vote on those that are there, and input your own. Oddly, using your Facebook account is the easiest way to sign in to input information or to vote. No, you can not sign in using your FCBA membership or even your FRN. That says something about the grassroot approach being used here!
Spectrum policy is too important to be left to lobbyists and lawyers!
Get involved!
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