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FCC Transparency & Spectrum Policy Productivity:

How Many Spectrum Issues are Resolved by Letting Them Become "Dormant"?
On 4/30/15 Chmn. Wheeler testified at the Subcommittee on Communications and Technology, Committee on Energy and Commerce, House of Representatives at a hearing on “FCC Reauthorization: Improving Commission Transparency”

The Chairman’s testimony is here. Here are some observations:

  • The Chairman starts off with “The American people expect the Commission - and all federal agencies - to carefully consider and decide matters in a fast, fair, and effective manner.” (emphasis added) A basic problem is that spectrum policy at FCC is not “fast, fair, and effective manner” unless you are the cellular industry and even they can only get attention for megaissues like more spectrum for themselves. Even the cellular industry had to wait 10 years for FCC to act on the cellular booster interference issues in Docket 10-4 and is still waiting for more than 2 years on the FM/LTE interference issue that FCC has not publicly acknowledged. (Perhaps we should mention the police radar detector/VSAT interference issue/Docket 01-278 that also took more than a decade to address and for which FCC covered up the delay in official documents?)

  • What about the continued inattention to the statutory requirements of 47 USC 157, admittedly not the most brilliantly written piece of legislation, but the “law of the land” for 30+ years. An FCC insider tells me that the view of the Chairman’s Office is that the provision of 47 USC 155(a) giving the Chairman the power “generally to coordinate and organize the work of the Commission in such manner as to promote prompt and efficient disposition of all matters within the jurisdiction of the Commission” overrides the specific language of §7 that gives deadlines for certain new technology actions. Your blogger did not go to law school and the FCBA directory has a large “N” next to his name to warn others not listen to his legal opinions, but this nonpublic interpretation of the primacy of §5 over specific statutory time limits seems a little strange! Perhaps other commissioners or the House committee could ask the Chairman to clarify how he interprets §7. (Although his interpretation is probably no different than he predecessors who have all tried hard to avoid compliance with this provision.)

  • What ever happened to Docket 09-157, introduced with great fanfare to stimulate “wireless innovation”? Is it being resolved in a “fast, fair, and effective manner”? Or will it just gather dust? The Chairman brags in his testimony (p.3) that “(l)ast year, we closed more than 1,500 dockets that were dormant”. Will this be the fate of 09-157? Keep ignoring it year after year and then dismiss it as “dormant”? What about the FWCC request for new E band antenna standards that has been pending since 2012? What about the Battelle petition for 102-109.5 GHz rulemaking, a band that presently lacks any FCC rules. Indeed, all spectrum above 95 GHz lack FCC licensed or unlicensed service rules, with the minor exception of a few amateur and ISM bands. What about the 2013 IEEE-USA petition to declares spectrum above 95 GHz that have no FCC rules as “new technology”?

  • These problems were not created by the current Chairman or the current commissioners, they have evolved over a long time. But it is time for the Commission to face up to that fact that its Title III productivity as presently structured and operating is not enough. It is troublesome that several commissioners think there is too much delegated authority to the staff. Some recent actions on delegated authority raise some real questions. Yet, the only way to increase productivity on Title II is to have more delegated authority that is accountable to the 8th Floor!

  • Let us compare Ofcom with FCC on spectrum policy. At Ofcom there is a Board of political appointees: “ Ofcom's main decision making body is the Board, which provides strategic direction for the organisation.” The Board does not make every decision, it sets “strategic direction” and oversees Executitve Committee which is “ Ofcom's senior executive team. It meets each month (except August) and is responsible for setting Ofcom's direction and overseeing the management of the organisation.” FCC has enough flexibility under §5(c) to change its spectrum policy deliberation procedures to approach those of Ofcom if the commissioners recognize there is a real productivity shortfall right now and it is affecting US competitiveness.

  • Spectrum requirements for drones have been a recurring topic in this blog, although we have advocated no specific position and have no clients in that area. Certainly the growing commercial interest in drones has been all over the place in the news in the past year. But drone proponents are not traditional players at FCC and FCC has been completely silent on drone spectrum issues, except for public safety drones. If FAA ever finishes its drone policy issues next FCC will be the roadblock! Is this a “fast, fair, and effective manner”?

If FCC had $745,603 for a contractor for a management review of spectrum enforcement, perhaps it could spend a comparable amount of money studying how it might improve its productivity in spectrum policy that in turn will stimulate the US economy and is already a major part of GDP?

If FCC acknowledges (at least internally) a Title III productivity shortfall, it might wish to consider the suggestions of IEEE-USA on “Improving U.S. Spectrum Policy Deliberations in the Period 2013-2017” that have attracted little interest in the Commission so far.

Maybe FCC is as “fast, fair, and effective” in spectrum policy as possible given the current FCC resource level appropriated by Congress. But if the endless delays that most non-CTIA related spectrum policy issues (and even many CTIA-related issues) at FCC face is adversely affecting both US spectrum technology competitiveness and the large part of the GDP impacted by mobile ICT, the Commission should tell Congress that it is now resource limited. Given the ongoing net neutrality controversy, Congress may be unwilling to give FCC a resource blank check, but maybe someway can be found to make additional resources available only for noncontroversial Title III issues.

Summarily closing thousands of dockets and enforcement cases after years of inaction is not good productivity, it is fudging the data - not unlike the actions of the Phoenix VA Hospital and their waiting list data. “Fast, fair, and effective” action would involve resolving these issues in a timely way not by letting them die a natural bureaucratic death!
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