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CTIA & NAB Demand Quick Action on Their New Technologies

While FCC Goes Slow on Everyone Else's!

In the above pair of tweets CTIA and NAB demand quick action on their favorite new technologies. NAB even has the chutzpah to invoke Section 7 of the Communications Act - a topic that FCC has tried careful to avoid for 30+ years. As we have written previously, there is even an opinion among FCBA members that trying to invoke Section 7 will result in additional delay!

Mitch Lazarus in his "Wireless Innovation" NOI comments pointed out the chilling effect FCC delays and regulatory uncertainty have on technical innovators. He stated in thiose comments:

The Commission's Rules are based largely on the technologies in place when they were written. New radio-based technologies often fail to satisfy those rules. The more novel an innovation, the lesslikely it is to comply. In consequence, a new wireless technology may need a Commission rulemaking or a waiver before it can reach the market. Technical proceedings in general, including those to authorize new technologies, have been dismayingly slow." (Emphasis added.)

Lazarus gives 11 examples of noncontroversial technologies that dragged on in FCC deliberations for years. He comments

"For a pre-revenue company burning through investors’ cash, having to wait two or three years for the first sales dollar can be a deal-breaker. Some companies give up at the starting line. Others try to go forward, but not all of them make it. One of my clients, dependent on a single product, went out of business waiting for Commission action. Others, though they survive, worry that their product will be leapfrogged by competing technologies and be obsolete on release. Even if all goes well and the product eventually sells, it still has lost considerable time on the market, which nowadays is short enough anyway."

I have elaborated on this issues in my paper at last year's TPRC on FCC's spectrum policy productivity. I concluded in the paper that the these long delays result from BOTH low funding of FCC spectrum policy staffing as well as an FCC organization structure which has not kept up with the explosion of spectrum technology options in parallel with the growing burdens of the APA as its case law expanded.

So while I have no objection to innovation from NAB and CTIA members, even timely action on such innovation, isn't time to treat all innovation in a timely way? Should FCC use the Chevron Doctrine to share with the public what it believes the true meaning of Section 7 is and how it will deal with new technology? While corporate mergers have no such statutory mandate, FCC has clear guidance on how it will deal with them. Why not comparable public guidance on new technology also?

While FCC publicly gloats above "changes to its rules and procedures to improve the timeliness and transparency of the review process for certain applications and petitions for declaratory rulinwith
reportable foreign ownership", should new technology consideration get comparable reforms? Why not streamline new technology also?

There seems to be a consensus now that the unlicensed ISM bands created in 1985 by FCC with a combination of indifference and hostility from spectrum incumbents at the time has had great economic benefits, perhaps adding $140B/year of economic activity. Would today's FCC spend any decision making effort on such a proposal that not only wasn't backed by major trade associations, but was even opposed by several of them?

Todays interest in "Upper Spectrum Band" 5G results from R&D that was greatly stimulated y the rules adopted in Docket 94-124 in the 60 GHz band. CTIA members did not even participate int hat rulemaking, no doubt because it seemed so esoteric at the time. But today they are reaping huge benefits from the R&D it stimulated.

Is it wise for today's FCC to pursue only technology innovation initiatives backed by these major trade associations?

Your thoughts are welcomed in comments