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Retrospective Analysis at the FCC

EO13579

The title of this post was also the title of a 8/9/11 post by Ruth Milkman on the FCC’s own blog. It describes FCC implementation of a 7/11/11 Executive Order entitle “Regulation and Independent Regulatory Agencies” -- which it oddly did not give a link to it or even its EO number - 13579, as shown above. (See, SpectrumTalk is nicer to its readers than FCC’s blog!)

The core of EO is the following:

To facilitate the periodic review of existing significant regulations, independent regulatory agencies should consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Such retrospective analyses, including supporting data and evaluations, should be released online whenever possible.


This policy is similar to the Carter Administration’s Executive Order 12044 that I have previously written about here and that was the initial impetus to what became Wi-Fi and Bluetooth. Regulation of a dynamic technology such as wireless technology is bound to become anachronistic and need updating. This need for updating in turn leads to delays for new technology and discourages capital formation for new technology. As Mitch Lazarus has written in comments in the “Wireless Innovation NOI” (which has seen no Commission action in over 2 years!),

Often a radically new technology comes from a small, privately-funded start-up. Its only product may be the one awaiting Commission approval. These companies may lack the resources to survive a lengthy FCC proceeding.


Several FCC sua sponte deregulatory spectrum initiatives that I initiated have resulted in product development that has stimulated economic growth. Such initiatives are not popular with industry insiders and conservative FCC staffers who prefer focus on the the spectrum analog of “no one ever got fired for buying IBM”. Here are some specific initiatives and their impact:
  • Docket 81-413 - Wi-Fi, Bluetooth, and ZigBee
  • Docket 83-114 - via successor Docket 85-171 resulted in technical deregulation for Part 90 modulation and bandwidth
  • Docket 94-124 - 60 GHz products such as 802.11ad
  • Docket 96-35 - permitted flat microwave antennas implicitly forbidden by previous rules
  • Docket 02-146 - commercialization of 70/80 GHz bands

Ms. Milkman writes in the FCC blog,

The President's directives are consistent with the values and philosophy we apply here at the FCC. In a press conference following the release of the July 11 Executive Order, Cass Sunstein, the head of the Office of Information and Regulatory Affairs in OMB, noted that the FCC has a robust regulatory review process in place. Under Chairman Genachowski's leadership, we are proud of the progress we have made so far.


I do not disagree with much of what she writes, however, there are real limitations to the 47 USC 161 biennial review process that I think she was referring to. The statute refers to review of “all regulations issued under this chapter in effect at the time of the review that apply to the operations or activities of any provider of telecommunications service”. In the past, the Commission has interpreted Section 161 in the narrowest possible sense to limit its work. Indeed, I recall during the Powell chairmanship numerous efforts were made by upper commission leadership to limit the scope of biennial review and keep it as narrow as possible so it would not be a distraction to the current agenda.

For example, I filed comments in the 2008 review. Perhaps these were brilliant comments, perhaps not. What happened to these comments? Well, in July 2010 when the results of the biennial review were released - a time during the Genachowski chairmanship - FCC dismissed the comments based on a narrow interpretation of the statute stating,

" the comments did not suggest that the rules should be repealed or modified because they are no longer in the public interest as the result of meaningful economic competition between telecommunications service providers. Accordingly, OET concluded that these comments were beyond the scope of the section 11(a) review".


Thus a narrow interpretation of Section 11(a)/47 USC 161(a) was seen as a preferred alternative to considering the merits of the suggestion!

This I have submitted to the FCC blog a comment stating that if they are serious about “retrospective analysis” they could start by looking at ALL the biennial review proposals in recent years that were dismissed for such bureaucratic reasons and consider them on their merits - not narrow interpretations of Section 11! But while we at at it, how about some action on the Wireless Innovation NOI (09-157)?

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SDR Rulemaking FINALLY Resolved

Mitchell Lazarus writes in the Fletcher, Heald & Hildreth CommLawBlog this week about the end of the FCC’s software defined radio (SDR) rulemaking, Docket 03-108. “Not with a bang, but with a wimper” is a good way to describe it.

Note that this docket begins with “03” - yes, that means it has been around since the NPRM was issued on 12/20/03, although the issue in contention here actually is a followon to Docket 00-47. In the NPRM the Commission said brave words about the importance of these technologies:

“By initiating this proceeding, we recognize the importance of new cognitive radio technologies, which are likely to become more prevalent over the next few years and which hold tremendous promise in helping to facilitate more effective and efficient access to spectrum. We seek to ensure that our rules and policies do not inadvertently hinder development and deployment of such technologies, but instead enable a full realization of their potential benefits.”


In the 2007 Order in this docket, FCC said “[M]anufacturers should not intentionally make . . . security measures in a software defined radio public, if doing so would increase the risk that these security measures could be defeated . . . .” The Order then said: “A system that is wholly dependent on open source elements will have a high burden to demonstrate that it is sufficiently secure . . . .”

Those of us who are Firefox users have made a judgment of the security of this open source software vs. the endless security problems of closed source Internet Explorer. The security of open source software if not a real issue. What is an issue is how slow the ancien regime at FCC was in keeping up with technology and keeping up with its “in box”. Telecom technology moves at Internet speed and excessive slowness discourages innovation and the capital formation needed to support it. Your blogger suggested in comments to Docket 09-157 that the Commission should delegate this type of noncontroversial policy issue to a panel of senior employees empowered by Section 5(c) of the Communications Act to make decisions. So far no one else has commented on this proposal. What do you think?

But another issue here in the area of software security has nothing to do with open source software. At the recent SDRForum conference in Arlington (now called the Wireless Innovation Forum) I was on a panel discussion and someone in the audience asked why doesn’t FCC do more about the security of the software in software defined radios. Indeed, with malicious software changes, SDR radios could do all sorts of malicious things to disrupt CMRS communications, public safety communications, etc.

While I was at FCC some of us were concerned about this and considered safeguards. But the SDR Forum and its major members were very insistent that they were responsible people and would only sell SDR units that were difficult//impossible to load with malicious unauthorized software. I am certain that this was and still is the intent of the legitimate companies that are members of the SDR Form and its successor. BUT. FCC Rules do not apply just to them. The same rules apply to anyone who manufacturers or imports SDRs.

There are sleazy foreign companies who have sold systems as antisocial as high power cordless phones that operate on air traffic control frequencies. Such firms would be happy to make an SDR that is approved by FCC with software for some benign function such as Part 90 use. Then they, or an affiliate, can sell through the Internet software that turns the unit into some nefarious use. Once large numbers are imported into the US, there is little in practice FCC can do about them. The fundamental problem about the SDR rules is they assume the manufacturer/importer is a “good guy” in all cases. This is not always the case. I am afraid other spectrum users may find out the hard way and am puzzled while CTIA, NAB and APCO have never been interested in this issue.
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