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FAA Terminates Its "Spectrum Policy Grab" Rulemaking:

Highlights Fundamental Problem of NTIA Structural Weakness
Long time readers of this blog may recall one of the first postings dealt with the bizzare FAA NPRM that appeared unexpectedly in the June 13, 2006 Federal Register. By “unexpectedly” I mean that no one had any hint that it was coming and that included both FCC and NTIA. FAA was upset about perceived snubs it had received from both agencies and decided to make a unilateral push to become equal to FCC and NTIA in managing domestic spectrum. (Presumably that also wanted an upgrade in status in international issues also with respect to the “troika” - DOS, FCC, & NTIA - that controls international communications policy.)

Four years later, on July 21, 2010 the Federal Register published a Final Rule (R&O in FCC jargon) that goes into effect this week terminating this FAA rulemaking and taking no action at this time in the spectrum area. The NPRM proposed to require that anyone seeking a license or license modification in 13 different bands (some of which spanned more than one FCC allocation) must notify FAA independently of any FCC application. As the FHH CommLawBlog stated “the FAA lowered its conceit of attainable felicity a bunch, giving up on wide swaths of its 2006 proposal.”
FAA withdrew its proposals for all bands but the FM broadcast band and made the following somewhat collegial statement:

The FAA, FCC and NTIA are collaborating on the best way to address this issue. A resolution of this issue is expected soon. Therefore, the proposals on FM broadcast service transmissions in the 88.0–107.9 MHz frequency band remain pending. The FAA will address the comments filed in this docket about the proposed frequency notice requirements and proposed EMI obstruction standards when a formal and collaborative decision is announced.

This problem has been around for at least 20 years and the FAA was so annoyed about perceived FCC and NTIA disinterest in their issues they made a successful end run around them and got some jurisdiction in this area in the Airport and Airway Safety and Capacity Expansion Act of 1987 (Pub. L. 100– 223 passed December 30, 1987) [FAA gave the legal background in p. 34030 of the NPRM, but they garbled the legal citations somewhat.]

Notwithstanding the about quote that “FAA, FCC and NTIA are collaborating” now, this whole incident shows US spectrum management policy at its worst. FCC and NTIA were both blindsided by the NPRM and it took 4 years to get any resolution, which in the end wasn’t much of a resolution. While NTIA thinks that it ”manages the Federal use of spectrum”, p. 42297 of the Final Rule states FAA’s viewpoint about “an existing process involving several Federal agencies with an interest in spectrum use, which NTIA oversees under the Department of Commerce.” So who is actually in charge?

The root cause of this problem is that FAA, which says it really cares about aviation safety where the other agencies don’t, also is caving in to pressure from the Aircraft Owners and Pilots Association (AOPA) - the “NRA” of the general aviation community. The ILS interference problems at the root of this issue are caused by “receiver-generated intermodulation” * in the ILS receiver when 2 or 3 strong FM broadcast signals are present that have a certain mathematical relationship to the ILS frequency. Both the receiver - regulated by FAA - and the FM broadcast stations are involved in the generation of the interference. Almost 20 years ago, ICAO developed receiver standards to minimize this problem.

Under pressure from AOPA, FAA has never made these ICAO receiver standards mandatory for all aircraft in the US. There is no indication that NTIA has ever pressured FAA on this issue.

NTIA has historically taken a hands off position to this problem even though NTIA claims it is responsible for “establishing and issuing policy regarding allocations and regulations governing the Federal spectrum use”. Historically, NTIA has been in favor of receiver standards for FCC-regulated services - but has been silent on other services where receiver problem impact FCC services.

So what is needed here is a real dialogue on how to split the burden of solving this problem between the FAA-regulated aircraft community and the FCC-regulated broadcast community with NTIA taken a forceful role in mediating a solution. However, the charter and legislation of NTIA dating back to the Carter Administration may make this impossible. The head of NTIA is an Assistant Secretary of Commerce and pragmatically assistant secretaries of smaller cabinet agencies do not tell other agencies how to spend their own money. This is the fundamental shortcoming of NTIA and results from its birth, not its present officials. Now many of us have observed the growth of the number of people in the Executive Office of the President with a strong interest in spectrum in the past 2 years. Hopefully this is a sign of the White House trying to exert some effective control over federal spectrum use which otherwise is mostly determined by user agency representatives meeting in secretive IRAC meetings. (They are so secretive, that I had trouble getting of minutes from a meeting that took place 25 years ago that I had attended!)

So FAA has backed off for now, but unless we get some real leadership in federal spectrum management this type of interagency problem will continue. Early in my FCC career, I both attended IRAC meetings from time to time and also represented the FCC at an interagency group on communications security (COMSEC). The Director, National Security Agency (DIRNSA in military jargon) has a national role in COMSEC that parallels NTIA’s role in spectrum policy. But the tone of the two meetings I attended was very different: DIRNSA sought the advice of federal agencies but made it clear that he was in charge and would consider the offered advice in making the final decision. By contrast, it was also clear at IRAC meeting that the various members were horse trading among themselves to decide what to tell NTIA to do. This is not leadership and spectrum is getting to be too precious to both the national economy and the national defense to base policy decisions on IRAC members horse trading among themselves for their own convenience. In Silicon Valley talk: “Adult supervision is desperately needed”.

I strongly believe that the White House needs a stronger role in spectrum policy even if it means partially undoing the creation of NTIA in 1977. I would transform the current NTIA Office of Spectrum Management into the IRAC Secretariat (which is a better description of most of its work at present) and leave most of the staff in Commerce while creating either a small decision making group in OMB or a new version of the old Office of Telecommunications Policy that reviews IRAC recommendations and has the resources to seek independent views of what is in the national interest, not the lowest common denominator of the IRAC membership.

* Receiver-generated intermodulation is difficult to explain to people who are not radio techies because it is counter intuitive in many ways and can not be explained with simple analogies. It is the root cause of several complex spectrum policy issues in recent years such as the 800 MHz NEXTEL/public safety interference issue and the ongoing PCS H block controversy, WT Docket No. 04-356.
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