Charter Communications expected to acquire Time Warner Cable in $55 billion deal http://t.co/jzM3wSG7NQ— Washington Post (@washingtonpost) May 25, 2015
This weekend word broke on yet another cable merger. We have no view on the merits of this merger, or for that matter on the merits of most mergers. But such mergers compete for scarce attention at FCC as it presently operates and detracts from its other duties such as Title III technical policy issues other than more spectrum below 5 GHz for the cellular industry. Even though the merger has not even been formally filed, Chmn. Wheeler has already issued today a public statement before 8:45 AM promising to review it. At least he did not promise quick action.
But what about the statutory promise of 47 USC 157(b) for timely action on “new technology” deliberations? What about new technology deliberations at FCC that seem to be stalled? For example:
- Wireless Innovation NOI - Docket 09-157 (8/27/09)
- Petition of South Carolina Department of Corrections and 30 other state corrections agencies on jamming cell phones in prisons (7/13/2009) (This was finally included in Docket 13-111 after having been never placed on notice for public comment and that docket is also languishing!)
- FWCC 42 GHz petition (5/9/12)
- Issue of interference from FM broadcast stations to 700 MHz LTE cellular base stations apparently resulting from a conflict between cellular rules and broadcasting rules (Since FCC has never acknowledged this issue, we will give it a date of 2 years ago)
- IEEE-USA petition for a declaratory ruling on whether 7 presumptively applies to technology above 95 GHz where there are presently no FCC rules (7/1/13)
- Battelle petition for Fixed service rules at 102-109.5 GHz (2/6/14)
- NOI on Mobile Service above 24 GHz (10/17/14) - Note that while not much time has elapsed, Ofcom, FCC’s UK counterpart has already issued two documents on this issue as well as a consultant’s findings since the issuance of this NOI! This is cutting edge technology moving quickly with government funding in many other countries, but uncertainties with FCC’s position are deterring private capital formation in USA in this technology.
- (While we can’t attach a date to it, the FCC’s continuing silence on all matter associated with spectrum for UAV’s/drones just drones on as the general issue of civil drones attracts ever growing attention. While there appears to be a dialogue between FAA and FCC on the issue, there is no statement on where drones may or may not use spectrum or any proposals.
Perhaps FCC has a valid viewpoint with its secret interpretation of the Communications Act that Section 5(c) trumps the Section 7 requirement on timely action for new technology. But if this is so, perhaps the Commission should tell Congress and the public that Section 7’s promise is now moot and you should expect dilatory action on everything except corporate mergers and more spectrum for cellular carriers?
In preparing for a talk this week, I was reviewing a video placed on YouTube by MobileFuture, a lobbying group representing many cellular interests. I noticed this predicted outcome of not giving cellular interests all the spectrum they want:
The irony is that the Commission’s current paralysis on more spectrum for cellular carriers and corporate mergers, not to mention partisan feuding over net neutrality, has resulted in chilling innovation for other wireless technologies not of immediate interest to the cellular industry, even backhaul technologies such as in the FWCC and Battelle petitions! As our national competitors subsidize R&D for these technologies, the US risks losing technological leadership unless FCC gives some signals to the private sector. (See p. 8-14 of NYU WIRELESS Docket 14-177 Comments)
So a modest proposal: no action on the new merger request until FCC makes real progress on cleaning up its Title III backlog.
We could point out that while FCC has made a promise on timeliness on corporate mergers, the statutory promise of Section 7 would seem to take precedence unless FCC wants to put its cards on the table and publish its secret ruling about why Section 5(c) makes that moot.
Today, in time for the holiday season, The Washington Post reports that Bill O’Reilly is back to his ranting on the “war on Christmas”. Something that is not obvious as holiday decorations are going up everywhere and holiday music is becoming ubiquitous.
But also today I got from a client an FCC rejection of a millimeter wave experimental application that had the attached explanation:
“You are advised that the Commission is unable to grant your application for the facilities requested. We have received an objection to your application from NSF. If you still wish to pursue this testing, you should exclude the passive band (X - Y) GHz on your application to further discuss your request prior to refilling.” (We are not giving the exact band here to protect the privacy of the applicant)”
This action is a natural consequence of the bizarre revision of § 5.85(a) in the Report and Order of Docket 10-236 on January 31, 2013 that apparently was a clerical error! A timely Petition for Reconsideration as filed by your blogger and received support from several parties, including Boeing - a real Fortune 500 corporation with a real lawyer representing them! Since then - NOTHING! Except of course, today’s rejection of the client’s application. (Your blogger was not involved in the filing, so this rejection is actually income generating, so thanks FCC in a way!)
The § 5.85(a) problem is only one part of the FCC’s 3 prong “war on millimeterwaves”. As described here previously, the other 2 prongs are:
- The inaction on the 7/1/13 IEEE-USA petition seeking to to declare technology above 95 GHz to be presumptively “new technology” in the context of 47 USC 157 and therefore entitled to timely consideration with the burden of proof on those opposed to such new technology
- The failure of the RF safety NPRM, Docket 13-84, to propose quantitative safety standards above 100 GHz even though it is based on an IEEE standard that goes to 300 GHz.
While one might argue that the NOI in Docket 14-177 is a major change in the “war on millimeter waves”, a careful reading shows that the authors tried very hard to limit the coverage to both 24-86 GHz only as well as to mobile only, although there is passing mention of cellular backhaul.
So while the “war on Christmas” exists only in the minds of a few people at Fox News, the “war on millimeter waves is quite real at FCC!
On October 17, FCC will consider a millimeter wave (mmW) NOI that will be the first major mmW deliberation there in more than a decade. mmW is sometimes called the “spectrum frontier” and is the upper end of radio spectrum that is enabled by breakthrough technology. Indeed, a major motivation for the NOI is that the work of Ted Rappaport of NYU and others has shown that mobile use above 24 GHz is practical.
(Your blogger recalls that in the early 1980s when Motorola was pushing for more Part 90 sharing of UHF TV spectrum - an action that indirectly resulted in DTV due to an NAB backlash - Motorola and others claimed land mobile above 1 GHz was physically impossible!)
Description of 10/17 NOI from FCC Tentative Agenda
Due to military R&D, US firms are the leaders in basic mmW technology, but commercial mmW applications lag in part due to outdated FCC policies and the general procedure of FCC to wait for petitions its in inbox. Does FCC really think that it is easy to raise capital for moving technology from IEEE journals to the marketplace win part of the process is getting FCC to act on a rulemaking to permit the new technology? As part of my teaching last year, I asked 3 prominent communications attorneys in DC how long they thought it would take for FCC to act on approving a new technology using the verging spectrum above 95 GHz. The answers were all in the 3-5 year range!
This is not how we facilitate US technological competitiveness and economic growth. The roots of Wi-Fi and Bluetooth was a policy of FCC Chairman Ferris, later supported by Chairman Fowler, that FCC should identify promising technologies held back by anachronistic FCC policies and modify those policies to allow the technologies - with due deference to others who might be adversely affected - but not to require the new technologies. Indeed, Qualcomm cofounder Andrew Viterbi has said that the May 1985 FCC spread spectrum decision was important in enabling the final capital formation for the incorporation of Qualcomm 3 months later as it showed real FCC interest in CDMA which was then opposed by most mainstream industry players. (Cofounder Irwin Jacobs and the current Qualcomm management differ on this point and some others about the early company history.)
reached in October 2003. At left is a Japanese 125 GHz system used at the 2008 Beijing Olympics in quantity for moving view from stadiums to the broadcast center. Use of similar technology is not permitted under current FCC Rules! So is it surprising that despite US leadership in millimeter wave components no such systems are being made in USA?
Above is a diagram of a German 237 GHz System exceeding 100 Gbits/s. Not only is its sale and use illegal in USA, but such an experiment probably could not have even been authorized due to the recent glitch in §5.85(a) that came about in the Report and Order of Docket 10-236 that for the first time forbids all experiments in passive bands. This change was made without any explanation and without any supporting comments. A timely filed Petition for Reconsideration on this issue has received no objections in more than a year and is supported by others, yet the matter is still unresolved at FCC. (Note, if FCC can not complete the whole reconsideration order on this docket in a timely way, it could at least issue a public notice announcing an interim liberal waiver policy for mmW experiments that impinge on passive bands based on whether there will actually be interference at the place and time of the experiment and NTIA - home of “spectrum sharing is the new normal” - could say that it supports such a policy as all such bands are G/NG shared.)
So here is what we urge FCC to do at the 10/17 meeting:
- Make clear in the NOI that the wall at 95 GHz is not intentional and is not a fundamental barrier to any proposed mmW uses.
- Make clear that despite theTentative Agenda description given above for the NOI that FCC is open to consider all uses of spectrum in the mmW bands, fixed, mobile and others and promises timely consideration of new proposals in order to support US competitiveness in mmW technology
Section 7, passed over 30 years ago is brief:
(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.
It basically puts the burden of proof on those who oppose new technology and sets a schedule for deliberations on new technology, FCC has consistently ignored both provisions.
Sen. Fischer’s bill assigns 2 new functions to the FCC Office of Strategic Planning and Policy Analysis
(A) take steps to ensure that the Commission complies with each deadline under subsection (b) (of section 7);
(B) review each regulation proposed by the Commission and analyze the impact of the regulation on innovation, economic growth, andjob creation;
Now in a well functioning agency this congressional tinkering wouldn’t be needed. But there is something in the FCC’s hidebound culture under both parties that has resulted in a 30 year consistent avoidance of Section 7.
Let’s not be naive: a junior senator from the minority party in the Senate without cosponsors is not going to change FCC’s long habit of ignoring this provision of its statute. But maybe she will get more attention than an obscure spectrum blogger! Maybe she can get FCC to explain why it continues to ignore this part of its statute?
Section 7 is not a perfect piece of legislation as presently written. But if FCC doesn’t like it, why hasn’t it proposed any changes in 30 years?
Your blogger filed comments yesterday on the House Energy & Commerce Committee’s spectrum white paper.
The comments focused on FCC and NTIA reforms that might be accomplished with little or no new legislation - a likely necessity given our dysfunctional Congress now. They explained that not only is FCC slow in authorizing even noncontroversial new technology, it is slow in dealing with interference problems of major industries that need rulemaking action to resolve. They raise the hypothesis that FCC implicitly or explicitly tells even powerful regulatees that its spectrum policy resources are limited so they have to choose between getting new spectrum or getting help cleaning up existing spectrum. Shouldn’t FCC be able to do both?
But FCC probably can’t do both as long as it has only one job stream focused on the 8th Floor. Under Section 5 of the Communications Act FCC has great power to delegate authority to employees or boards of employees - as it did with the former Review Board.
The comments also raise the issue of Section 7 of the Communications Act and the 30 yeas that FCC has ignored it.
The comments congratulate FCC on its thorough report to improve its procedures and advocated some clarifications and extensions of the recommendations.
Here is a summary of the points made:
- The comments strongly supported the new promise to act in a timely way on petitions but pointed out that this is already a longstanding, but generally ignored, requirement of §1.403. Timely disposition of petitions is key to capital formation for wireless systems that need nonroutine approvals.
- The report recommended grouping questions at the end of NPRMs. The comments suggested the key issues were to group the questions, limit the number to a manageable amount, and actually number them. The report gave examples from Industry Canada and Ofcom “consultations” where a modest number of questions were grouped and numbered.
- The report suggested “continue to engage with other agencies to develop best practices for rulemaking”. The comments endorsed this concepts and suggested it be broadened to include foreign telecom regulators like the above mentioned Ofcom and IC as well as innovative entities like the North Dakota Supreme Court that issues its opinions in hypertext. It pointed out that in the ex parte rulemaking FCC limited its comparison with other agencies to FTC, and that agencies like EPA, NRC, and FAA might be closer to at least FCC’s technical jurisdiction practice.
- The report urged “better tracking of complaint data”. Following previous discussion here of emerging interference, the comments discussed several cases of large delays in handling such issues and suggester more reporting and public interaction on new interference mechanisms to determine which need timely regulatory actions and which can be handled with benign neglect.
- On the recommendation to “increase technical inputs early in rulemaking”, the comments pointed out the previous IEEE-USA recommendations on supplementing the TAC with a paid advisory committee without conflicts of interest, as EPA and NRC have, that can interact on pending policy issues in a timely way - complementing the functions of the TAC. IEEE-USA had recommended that this be a joint FCC/NTIA committee that could serve both agencies and have security clearances to handle classified issues such as GPS interference and susceptibility. It also recommended that both FCC and NTIA budget for support from National Academy of Science’s National Research Council (NAS/NRC), Federally Funded Research and Development Centers (FFRDCs)e.g. MITRE Corp., Rand Corp., and Aerospace Corp., in support of technical policy issues that the in-house staff do not have experience with. This would follow the practices of NRC and EPA with new technical issues.
- Finally it pointed out that even though §7 was passed 30 years ago FCC has no implementing policies and rules. It urged that FCC either adopt such now or tell Congress that §7 needs repeal or modification. (Although it would be odd to take 30 years to figure that out!)
Your blogger’s comments on Docket 13-259, the IEEE-USA petition to FCC asking that technology greater than 95 GHz be declared “new technology” subject to timely consideration under Section 7 of the Communications Act are now posted on the FCC site. As of this writing, also posted as early filings are comments from IEEE 802 and from David Britz, a former research in the area for AT&T.
If you are interested in facilitating the introduction of commercial technology above 95 GHz, presently forbidden by law in the US and facing multiyear case-by-case deliberations, you may wish to consider telling FCC whether you agree with the points made in the above comments. Feel free to disagree on issues. Heck, feel free to say that use of spectrum above 95 GHz is not even in the “public interest” -- if that is what you believe.
Note to those interested in passive uses such as radio astronomy and remote sensing: bands for such uses are already allocated and protected and are not under consideration here for nonpassive use. The issue here is actual access to bands that already have fixed and mobile allocations but have no FCC service rules.
In a Halloween present to your blogger, FCC released the above PN asking for comment on the previously discussed IEEE-USA petition to expedite deliberations on technology >95 GHz in accordance with the terms of Section 7 of the Communications Act.
In an apparent clerical error they omitted either an RM number or a Docket number creating an ambiguity on how to actually file comments. A knowledgeable source says this happens sometimes and is normally corrected in a day or 2.
We look forward to seeing your comments.
vox populi, vox dei
FCC issued an erratum on November 1 and now this issue is docketed as ET Doc. 13-259.
By my calculation, comments are due December 2, 2013.
For those who do not do this often, the link for uploading a comment into this docket is at
Convert your comments to .pdf format before uploading to FCC
Remember to enter 13-259 in the first entry block labeled
“Proceeding Number: ”
If you need any help, place contact your blogger
Frequencies Above 95 GHz: Why Not Declare that Section 7 Presumably Applies in Order to Stimulate US Innovation and Economic Growth?
135 GHz antenna developed by Singapore
government lab and announced last week
(The fact that this antenna looks so unusual is an
indication that technology at this band is very
different and conventional regulatory thinking
may be inappropriate.)
Almost on cue from my 8/25/22 post on moving the upper limit of FCC radio service rules above 95 GHz, RF Globalnet published on 8/28/12 a post entitled “A*STAR's IME Develops Smallest Antenna That Can Increase WiFi Speed By 200 Times”. A*STAR is the Singapore Agency for Science, Technology and Research, the “lead agency for fostering world-class scientific research and talent for a vibrant knowledge-based and innovation-driven Singapore” - somewhat of a combination of the US’ NSF and national laboratories (e.g. Argonne National Lab) in a state capitalism industry model. (Original A*STAR press release)
The RF Globalnet article reported (in Singapore/Commonwealth spelling):
Researchers from A*STAR’s Institute of Microelectronics (IME) have developed the first compact high performance silicon-based cavity-backed slot (CBS) antenna that operates at 135 GHz. The antenna demonstrated 30 times stronger signal transmission over on-chip antennas at 135 GHz. At just 1.6mm x 1.2mm, approximately the size of a sesame seed, it is the smallest silicon-based CBS antenna reported to date for ready integration with active circuits. IME’s innovation will help realise a wireless communication system with very small form factor and almost two-thirds cheaper than a conventional CBS antenna. The antenna, in combination with other millimetre-wave building blocks, can support wireless speed of 20 Gbps – more than 200 times faster than present day Wi-Fi, to allow ultra fast point-to-point access to rich media content, relevant to online learning and entertainment.
So the Japanese have a product prototype at 120 GHz that they used at the Olympics 4 years ago and a Singapore government lab is developing 135 GHz commercial technology. Where do US firms stand? There is some interest among US firms in this area. The US-based IWPC MoGig group includes several US entities such as AT&T and Northrop Grumman. But a rational “due diligence” assessment of regulatory risk by anyone wanting to invest in R&D in these bands would lead to great regulatory uncertainties at present:
- Only experiment licenses are possible with no guarantee of renewal or expectation of protection
- Unlicensed use is impossible
- The legality of equipment sales is questionable
- The time for FCC to respond to a waiver request or a petition for rulemaking to permit a specific product to be sold and used in these bands is in the multiyear range and the need for NTIA coordination (all these bands are G/NG shared) is complicated since there is no public information on federal government uses or requirements in these bands other than radio astronomy and passive sensing
Recall the words of Comm. Pai in his maiden speech at CMU in July:
I’ve met with those in the private sector who decide whether to make investments and to create jobs and have asked what’s holding them back. The principal answer that I have received has been remarkably consistent, and it can be summed up in two words: “regulatory uncertainty.”
Some of the factors that contribute to this uncertainty fall outside of the FCC’s jurisdiction, such as taxes, health care, and financial regulation. But concerns are expressed regarding the FCC in two general ways. The first involves inaction, or delayed action, by the Commission. At first blush, it may seem odd for those in the private sector to be complaining that its regulator is moving too slowly. Entrepreneurs are usually happy to be left alone, free to innovate without government intervention.
But the communications industry often doesn’t fit that stereotype given the FCC’s pervasive role. If a company wants to market a new mobile device, it needs the FCC’s approval. If a company wants to purchase another firm’s spectrum licenses, it needs the FCC’s approval. If a company wants to provide a new wireless service, it needs the FCC’s approval. And if a company finds that there isn’t any spectrum available and proposes the reallocation of inefficiently used spectrum, it needs the FCC’s approval.
Comm. Pai has the same understanding of Section 7 that I have:
“Looking at that provision, the message from Congress is clear: The Commission should make the deployment of new technologies and new services a priority, resolving any concerns about them within a year.”
It is interesting to read Section 7(a) (47 USC 157(a)) in the light of the FCC/NTIA Section 301/305 dichotomy and in view of the fact that any action in these shared bands de facto requires NTIA concurrence. Without the benefit of any formal legal education, let me state that the policy provisions of Section 7(a) applies to both FCC and NTIA. Further, the requirement that
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.
would indicate that NTIA (and IRAC) is a “person or party other than the Commission” and thus has “burden to demonstrate that such proposal is inconsistent with the public interest”.
But here is a humble suggestion:
Why don’t FCC and NTIA jointly declare that any proposed private sector use of frequencies greater than 95 GHz will be presumptively treated as a “new technology or service” and that FCC and NTIA will both strive to meet the 1 year deadline of section 7(b) and the burden tests of Section 7(a)? Further, why doesn’t FCC use the same “shot clock” for tracking such actions as it already uses for corporate mergers where there is no statutory deadline?
Benefits? Stimulating innovation and economic growth and bringing FCC into compliance with this neglected section of the Act.
Section 7 in 1983 in response to the Commission’s endless delay in resolving issues about an innovative narrowband land mobile technology, it has carefully tried to avoid ever mentioning the existence of this provision in both decisions and publications. Section 7 is not a perfect piece of legislation. It has an explicit deadline, yet doesn’t state exactly what has to be done within that period.
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
White House Announces
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.