The independent blog on spectrum policy issues
that welcomes your input on the key policy issues of the day.

Our focus is the relationship between spectrum policy
and technical innnovation.

A net neutrality free zone: We pledge no mention of any net neutrality issues before 2018.

When they deserve it, we don't hesitate to criticize either NAB, CTIA or FCC.

More Signs of Low FCC Throughput on Spectrum Policy

Readers may recall the discussion here of your blogger's 2015 paper for the Telecommunication Policy Research Conference on "Does Today's FCC Have Sufficient Decision Making Throughput to Handle the 21st Century Spectrum Policy Workload?". It gave a selection of examples of noncontroversial topics that went at glacial pace and thus slowed own technological progress in radio technology . A real fear is that an unintended byproduct of "process reform" at FCC is that noncontroversial spectrum policy issues might even become slower!

The Commission has broad general power to delegate issues to its staff subject to oversight and review but the specific delegations listed in Part 0, Subpart B of the Commission's Rules probably haven't been updated in decades. Under the previous chairman there were accusations that existing delegations were abused to deprive the other commissioners, especially those of the minority party, of their "right to vote". Note that these accusation did not deal with any matters even vaguely related to the example in the TPRC paper above. We have urged a complete and thorough review of delegations along with better guidance from the Commission for the staff on general policies for handling technical spectrum policy issues that are uncontroversial.

In the previous blog post here we discussed 2 bad signs of slowness and resource limits in spectrum policy. Here are some more:

  • On the agenda for the May 2017 commission meeting is an item identified as "Part 95 Reform". This is a report and order in Docket 10-119. Didn't that begin in 2010 judging from the Docket number? A quick review of EDOCS gives the result below:


There has been no FCC activity in this docket since the NPRM was adopted almost 7 years ago! A review of the comment files show some recent ex parte meetings but not a lot of controversy. Where has this rulemaking been for the past 7 years? We suspect that the 8th Floor and the WTB top leadership are so focused in net neutrality and 5G issues that other issues just get ignored. This is consistent with a contact I had with a WTB middle manager on how they might proceed with a new spectrum issue related to drones that a potential client was interested in. The middle manager said that the WTB front office had little or no interest in ANY issue that was not cellular! So the drone spectrum policy issue would probably just linger without action as all drone spectrum issues have to date.

  • Another issue moving at glacial pace is Docket 13-39, an update of the FCC's RF safety rules. This is both more controversial and more significant. While traveling recently I had dinner with a fellow FCC retiree. He recently wrote me about this rulemaking saying "I started working on that project in 2003, 14 years ago!! It may outlive me!" While this rulemaking has some controversy, as indicated in our comments in the vital Wireless Infrastructure rulemaking, Docket 17-79, it is a key factor to facilitate the rapid implementation of new infrastructure. A recurring problem with local governments is whether new cell sites are safe. Pointing to rules adopted decades ago without much real updating is not very credible. So why can't FCC resolve it in time? The pending downsizing of EPA could have a real impact here since FCC and EPA share jurisdiction in this area and EPA has provided technical support on proper safety limits and how to measure them. After EPA is downsized, this rulemaking will become more difficult!

So we urge the FCC top leadership to review the overall throughput issue of FCC on spectrum policy issue and consider delegating more issues the commissioners are not personally interested in to the staff subject to policy guidelines and safeguards. This is what Ofcom does and while Ofcom's guidelines to its staff are not public, I suspect the FCC commissioners could ask Ofcom for a better understanding of how they manage their process and a few examples of guidelines for staff action.

The current FCC spectrum policy throughput problem was not created by the current chairman or his predecessor, but has built up over a decade or two. It is now time to start solving it, especially since Chmn. Pai is committed to Section 7 compliance for the first time.

Lessons on FCC Morale


This week the Best Places to Work in the Federal Government report was issued as it has been every year since the Bush 43 administration fostered the start of this program in 2003 and made surveys mandatory for Executive Branch agencies. FCC participation was optional and it dodged the survey until the 2009 survey - based on 2008 data collection during the Martin chairmanship. Now the purpose of FCC is not to amuse its staff and keep them happy. But enlightened management knows that you can get more done if everyone on the team understands goals and works in the same direction. Indeed, if they don't why have 1500-2000 people sitting around.

During my career at FCC Chmn. Michael Powell seemed to be the best leader at motivating the staff. Chmn. Kevin Martin, his immediate successor, the worst. Both Republicans. Most FCC chairs in recent history had essentially no management experience. They were generally Hill staffers or lawyers in private practice. Chmn. Wheeler despite other flaws, had at least directed 2 trade associations with a few hundred employees. Chmn. Powell did not have this direct experience, but he grew up in the family of a senior military officer and no doubt learned from his father how to be a leader of those in your unit. He also had been a junior military officer before his career was wrecked by a near fatal training accident. Having been a junior officer myself, I know that leadership training is a key part of preparation for commissioning. I doubt if many other FCC chairs have had comparable training.

So let's look at this year's results:

FCC scores bptw 16

FCC had a dismal score during the Martin chairmanship as morale plummeted. This was particularly striking after the enlightened workplace leadership of Chmn. Powell. While Chmn. Genachowski was controversial for some of his policies, he at least made a wonderful turnaround in workplace morale at FCC.

bptw table 16
However, morale has been drifting down in the most recent 3 surveys and is now below government wide averages. More troubling is what is shown in the table at the left. This compared FCC with other regulatory commissions of comparable size. NLRB has worse morale than FCC; but FERC, FTC, NRC, and EEOC have higher morale than FCC. Thus in this narrow peer group of multimember regulatory commissions FCC is near the bottom.

So I hope that the Transition Team in planning the new FCC leadership focuses on the positive accomplishments of Chmn. Powell in FCC administration and leadership and eschews the management style of Chmn. Martin, his successor. This is an independent issue of the 8th Floor harmony illustrated at left. Now partisanship in FCC is not totally independent of partisanship on the Hill so blaming Chmn. Wheeler entirely for this partisanship growth in FCC voting is not really fair. FCC is not really isolated from Congress especially when 3 of the commissioners are former Hill staffers and a fourth is the daughter of a key House member. Hill staffers make great commissioners, but there is a downside of having a near monoculture of such former staffers on the Commission.

So let's hope in the next few years we can have both good staff morale at FCC and better 8th Floor harmony too.

FCC Reform in the Next Administration - Part 1

Since it is clear now that FCC will get a new chairman shortly and several new faces on the 8th floor, it is timely to start a dialogue about how FCC should change to be more responsive to the current state of its jurisdiction as well as the desires of the new administration. This will be first in a series of posts to raise ideas for consideration. Feel free to post comments to any of them. I promise to post all nonobscene relevant topics regardless of their viewpoint.

These posts will focus on spectrum policy issues and innovation. While net neutrality, privacy and competition are key issues, many others speak on them and they will not be addressed here.

For the first posting let me point out the spectrum policy recommendations that have been made by IEEE-USA, the US arm of the transnational electrical engineering society that covers all the technical aspects of FCC jurisdiction. These are in a document entitled
"Improving U.S. Spectrum Policy Deliberations in the Period 2017-2021". Although they focus on FCC, some also address related NTIA federal spectrum management issues because FCC's §301 jurisdiction is so closely connected to NTIA's delegated authority of §305. The recommendations are in 3 different areas. Below offer the areas and the basic commendations in each. More discussion is in the IEEE-USA document.

Process Improvement:

  • FCC and NTIA should explicitly acknowledge the role of Section 7 of the Communications Act of 1934, as amended, and the intent of Congress to encourage new communications technology and services. These agencies should adopt transparent procedures for determining which innovations are subject to this statute and should make readily available information on such proceedings. The FCC and NTIA should recommend changes in the statute in a timely way, if the current terms of Section 7 are deemed not practical.

  • Petitions for rule changes and clarifications are key issues in the regulation of the dynamic telecommunications industry. FCC should act on such petitions in a more transparent way, and make available information on petitions and their status on a consistent timely schedule.

Improved technical resources for FCC and NTIA to improve decision making:

  • In selecting presidential appointments to FCC, NTIA, and the State Department in communications policy functions consideration should be given to individuals with experience in information and communications technology (ICT), to balance the backgrounds of the officials in these key positions.

  • FCC commissioners should consider appointing individuals with experience in information and communications technology (ICT). as one of their three assistants, allowed by law.

  • FCC and NTIA should supplement their existing Technological Advisory Council (TAC) and Commerce Spectrum Management Advisory Committee (CSMAC), which consist mainly of representatives of major communications firms, with a new advisory committee that serves both agencies and focuses on independent review of options for resolving spectrum conflicts and identifying outdated policies. The new group should be modeled on the EPA Science Advisory Board and the NRC Advisory Committee on Reactor Safeguards and members should have the necessary security clearances to deal with issues involving classified federal government spectrum users, if so requested.

  • FCC and NTIA should have the resources to contract with the National Academy of Science’s National Research Council (NAS/NRC), Federally Funded Research and Development Centers (FFRDCs) and private analysis contractors, to supplement their internal staffs on novel technical policy questions where they lack the appropriate internal resources.

  • The NTIA and FCC technical staffs are key to the long-term success of U.S. spectrum policy. Recruiting and developing the careers of these personnel should be done using the best practices of other agencies involved in technical policy development.

Other Issues to Stimulate Innovation:

  • The executive branch should act to review and implement the recommendations for federal spectrum management reform in Sections 5.2 – 5.6 of the July 2012 President's Council of Advisors on Science and Technology (PCAST) report, “Realizing the Full Potential of Government-Held Spectrum,” to facilitate the reallocation and sharing of federal spectrum for private sector use.

  • FCC should complete action in a timely way on Docket 09-157, which deals with wireless technical innovation.

Are 5G Spectrum Deliberations at the Expense of All Other New Technology?

At tomorrow's monthly Commission meeting the issue of 5G #HighBandSpectrum,as it has been referred to on Twitter, will be discussed and no doubt approved. With the exception of whether satellite licensees in 2 bands have coprimary or secondary status there is no real controversy in Docket 14-177. Yesterday at a House Subcommittee on Communications and Technology hearing Chmn. Wheeler's written testimony contained the following:

We will be repeating the proven formula that made the United States the world leader in 4G: one, make spectrum available quickly and in sufficient amounts; two, give great flexibility to companies that can use the spectrum in expansive ways; and three, stay out of the way of technological development. We will also balance the needs of various different types of uses in these bands through effective sharing mechanisms; take steps to promote competitive access to this spectrum; and encourage the development of secure networks and technologies from the beginning.

These statements are very admirable. But do they mean that 5G is not only FCC's highest goal but its only new technology goal at present — perhaps other than NAB's pet project of ATSC 3.0?

Is FCC interested in making new spectrum available "quickly and in sufficient amounts" for any other types of spectrum licensees - licensed or unlicensed? If 5G gets absolute priority at FCC on spectrum access, what about others needing spectrum that is not even in conflict with 5G spectrum? Are they entitled to consideration of "spectrum quickly and in sufficient amounts" if the request is noncontroversial? Is FCC spectrum policy productivity so low that only one new technology issue can be discussed at a time?

People may forget that the unlicensed ISM bands made available in Docket 81-413 were widely opposed by incumbents, even the predecessor of CEA now CTA, and had almost no corporate support in the rulemaking is now the basis of BOTH Wi-Fi and Bluetooth. There was some participation of predecessors of today's cellular carriers in Docket 94-124 that created the 60 GHz band that in turn stimulated much of the R&D responsible for #HighBandSpectrum 5G and which is about to be expanded in Docket 14-177. But they were focusing on obscure details and seemed mainly interested in computer-to-computer communications, not anything even vaguely resembling 5G. Reagan had a point when he warned against governments "picking winners and losers": Enabling 5G in a timely way should not be at the expense of slowing down all other new radio technologies not in conflict due to bottlenecks in FCC deliberative processes.

We frankly don't know what the "killer apps" technologies will be 10-20 years from now. In my most megalomaniacal phantasies in the early 1980s when I was working on Docket 81-413 I count not imagine how ubiquitous ISM band uses such as Wi-Fi and Bluetooth might become. Even the pioneers of 802.11, led by NCR which has never sold consumer electronics, thought they were developing a wireless LAN for wireless PC-based cash registers for department stores. Had they approached FCC with such a request in the absence of the Docket 81-413-developed rules I am sure they would have been politely told to go away. (Indeed, in the 1990s, before the commercial availability of Wi-Fi, Kodak approached FCC several times for a special band for downloading pictures from digital cameras to photo printing machines in camera shops and was told to go away. Ultimately Wi-Fi was capable of this functionality.)

This week UK's Ofcom released a bold NOI-like document on fixed service bands. It included the following text:


By contrast the FCC 5G proceeding has mentioned twice the possibility of other uses of #HighBandSpectrum:


There has been no further action on any uses of spectrum above 95 GHz, let alone above 75 GHz! While Ofcom acknowledges the existence of WRC-19 Agenda Item 1.15 on new allocations in 275-450 GHz, can you find any mention of this on the FCC's voluminous website?

So let's cheer the adoption of the 5G rules this week, but let's also ask whether FCC can now deal with other innovative technologies. Perhaps FCC can even explain how it will implement the provisions of § 7 of the Communications Act? Under the Chevron Doctrine FCC can do that and the courts must give deference, but FCC has given no public guidance on how it deals with new technology in the 30+ years since § 7 was enacted.

All new technologies matter and are entitled to timely consideration.

Comm. O'Reilly on FCC Reform
Can't We Have BOTH Commissioner Control and High Throughput?

7.8.16- Orielly Process Reform Proposals v5 image

On July 8th, Comm. O'Reilly published in the FCC's blog a post entitled "Snapshot of Process Reform Ideas" giving the 24 proposals listed above. He says that the ones indicated in yellow "have been adopted in whole or in part".

Presidential appointment certificate

Let me make clear: Comm. O'Reilly and his 4 colleagues have been appointed by the President and confirmed by the Senate. They have the "big white certificate with the big white seal in the corner" of a presidential appointee. I don't and virtually all readers of this blog don't either. So it is up to the 5 commissioners to resolve procedures for FCC to operate under.

§4(i),(j) clearly states "The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions…The Commission may conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice." (This is supplemented by the role of Chairman as described in §5.)

The 5 commissioners should work out among themselves a modus operandi that is both efficient and meets the requirements of the statute. They don't need us to cheer them on - often in partisan ways. As I have noted before, FCC could use occasional closed Commission meetings from time to time to discuss internal processes and their improvement. The Government in Sunshine Act generally requires open meetings for multiple member agencies BUT there are exceptions. Specifically 5 USC § 552b(c)(2) provides one for meeting that "relate solely to the internal personnel rules and practices of an agency". As far as I can tell, the last time there was an FCC closed meeting on any matter was the one announced below on November 1, 2001:

  • 2001-Sunshine
So maybe the 5 commissioner should get together behind closed doors consistent with the provisions of §0.603 to hash these things out among themselves. Isn't such a closed door discussion needed at least every 15 years?

While the proposals of Comm. O'Reilly would certainly lead to more commissioner involvement in FCC decision, nothing is said about whether they would increase throughput or possibly decrease it. While some may feel that FCC throughput in areas such as net neutrality and STB regulation should decrease, an unintended side effect might be to decrease throughput in all policy areas of FCC jurisdiction. As we have discussed before and discuss below, FCC throughput in spectrum policy is already too low and is threatening innovation. The cellular industry;s demand for action on #HighBand Spectrum this week as well as NAB's demands for quick action on ATSC 3.0 show there is support for fast FCC action in some areas of its jurisdiction. Indeed, recurring dismissal of thousands of proceedings because they are "stale" is not an accomplishment — rather a sign of a current deep productivity problem.

But let me also address Comm. O'Reilly's point #21 - "Be a leader in tech adoption: adopted direct dialing 911 and iPv6 at FCC" - which he appears to classify as having "been adopted in whole or in part". Perhaps these 2 specific tasks have now been accomplished, but does this make FCC "a leader in tech adoption"? Yes, new technologies are being approved as no doubt 24+ GHz 5G will be this week. Yes, FCC moved quickly on ATSC 3.0 in response to NAB's petition and requested comments a mere 6 weeks after the petition. But petitions for new technology that do not come from CTIA or NAB often just gather dust for years! 30 years after its adoption the Commission has no coherent explanation of how it deals with the new technology provisions of §7 or any guidance for regulatees on submitting such requests. Indeed, at least one prominent private lawyer believes that anyone seeking to use the provisions of §7 will be punished with extra delay!

While it is easy to just think cynically that CTIA get special treatment because it is so important and that no one else should reasonably expect such treatment, we have pointed out that in the case of cellular booster interference to cellular systems (Docket 10-4) even CTIA had to wait 10 years from when they first stated to FCC that "urgent action is needed"! In the case of FM broadcast interference to nearby 700 MHz cellular base stations FCC apparently refused to take any action or even make a statement on the problem (which appears to be condoned by ambiguities in the present FCC Rules) and verbally told the affected parties to solve it themselves. So while CTIA may be the prodigal child, FCC productivity is so low now in spectrum policy even this prodigal child appears to have choice of getting what they want in new spectrum or getting their interference problems solved - but not both!

Prominent spectrum lawyer Mitchell Lazarus pointed out in comments in the "Wireless Innovation NOI", Docket 09-157 - which itself has been stalled for years and theoretically still open - that even noncontroversial marginal innovations on existing services often stall for YEARS at FCC if they need Commission action for a waiver or rule change. I could also point out that both the IEEE-USA request for a declaratory ruling on technology above 95 GHz and their status under §7 as well as the more specific request from Battelle Memorial Institute for Part 101 service rules in the virgin spectrum at 102-109.5 GHz have both been stalled for years at FCC without any resolution.

Does this make FCC "a leader in tech adoption"?
What do you think its impact has been on capital formation for R&D in cutting edge wireless technology - other than specific technologies favored by the cellular industry?

I have discussed this low productivity in spectrum policy for innovative technology and its shortfall with respect to demands ifor spectrum policy in a paper at last year's TPRC. To put it simply, it is as if the demand for spectrum policy is equivalent to 6,000 pages of FCC decisions each year, but the 8th Floor deliberation process as presently structured can only produce 4,000 pages. I don't see anything in the Comm. O'Reilly's reform ideas that would increase the throughput of the 8th floor about the present perhaps 4,000 pages/year. He has previously written about his "right to vote" but not about the implications of high level deliberation on esoteric matters.

Should the issue really be that the 5 commissioners can vote on the most important issues that they categorize as such?

Then leave the other issues that have to be resolved to the staff to handle under delegated authority in order to get the people's business done in a timely way? If the commissioners want to vote on the wireless competition reports to Congress, why not? However to meet real productivity requirements and goals the will have to get less involved in more obscure matters to which they - and their present staff - often add little value. These are often technocratic matters in spectrum policy such as allowing any licensed or unlicensed use above 95 GHz - a limit reached by FCC in 2003.

If the board of directors of General Motors chose to try to control the firm by voting on every design change of every model, next year's Chevy could never be produced on time. Similarly at FCC there is a tradeoff between level of direct involvement of commissioners and agency productivity/timeliness.

.While UK's Ofcom Board is not exactly the same as the commissioners under our legislation, it has found ways to both delegate most decisions to the Ofcom staff under clear general policy guidelines and to have real oversight of the staff. FCC's delegations of authority to its staff have changed little in decades and focus mainly on precedent, not on significance, let alone the impact of a longer 8th Floor deliberation. Should FCC, or at least the FCC of the next administration, fundamentally review its delegation of authority structure?

Having spent nearly $1M on an outside study of field enforcement in recent history, shouldn't improving FCC policy productivity be more important?


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

FCC's 1980's Flint-like Lead Issue

The frequent news stories on all media on the lead crisis of Flint MI and apparent indifference throughout many layers of government reminded me of an old issue at FCC in the 1980's under FCC's first Managing Director, Ed Minkel. Now I must admit that I have mixed feelings about Ed, especially since he signed the letter that was an attempt to finalize my dismissal from FCC. (The letter is dated 12/29/86, but I was told of this plan a few weeks before the 5/9/85 Commission meeting that adopted the unlicensed ISM band rules in Docket 81-413 that are the basis of Wi-Fi, Bluetooth, ZigBee and a lot of other products.)

A reliable source in the Office of the Managing Director, knowing that I was the victim of their bosses' efforts, told me in the mid 1980 that FCC tested the lead levels in water coolers in its various buildings near the corner of 20th and M St., NW and found that the lead levels in the main FCC building at 1919 M St. exceeded a new EPA regulation that would be going into effect.

What did FCC do?

  • Provide lead free water to all staff members?
  • At least provide it to all pregnant staff members?
  • Advise the staff of the issue so they could make their own decisions?


The Office of the Managing Director management swore their staff to secrecy on this issue and proceeded to make repairs to get the lead level down to EPA standards before the new regulations went into effect. Did the Chairman know? Possibly. Did the commissioners know? Probably not.

So you may ask, isn't some level of lead exposure for a small time safe? Here's what EPA says:


This type of cynical attitude towards the FCC staff has been part of FCC's DNA going back decades. While I did not necessarily agree with all of Chmn. Powell's telecom policy positions, he was a welcome breath of fresh air. For example, he restored a reasonable training budget for the FCC staff as a whole, not just a few elite senior staffers and reinstated the master's degree program for Commission engineers that had been unfunded for over two decades.

I suspect because Powell had been a junior military officer and had grown up in a military family he understood the importance of motivating staffers and
earning their respect. Most other chairmen in memory came from small organizations and lacked management experience in a 2000 person organization. Typically the chair and commissioners are focused on getting as much done as possible during their terms with little concern about the infrastructure of the organization including its staff. But I must admit that the lead coverup of the 1980s was a new low in FCC mistreatment of its staff.


Improving Collegiality at FCC's 8th Floor


Yesterday's FCC Blog post by a commissioner
, "Stop Unfairly Censoring Commissioners", highlights a growing collegiality problem at FCC that is not doubt impacting FCC productivity and effectiveness. As someone who worked nearly 25 years at FCC this is sad. However, it has been building for years and was not caused by one party or one commissioner. While it may be easy to forget the Chairmanship of Kevin Martin, similar problems existed then also. Since Chmn. Martin succeeded Chmn. Powell - the chairman in recent history who created the maximum harmony at FCC - and both were appointed by Bush43, it is clear that no single administration or party has a monopoly on creating such problems.

In the interest of being constructive, I humbly offer some suggestions for FCC leadership to consider for improving harmony at the top for the benefit of all:

  • A temporary moratorium by all 8th Floor residents, not just commissioners, on Twitter other than brief factual statements, e.g. "Will be speaking Chicago next week at XYZ conference". The Commission lived without Twitter for several generations and maybe a pause is needed to let all involved focus on how it can be most constructively used.

  • A similar pause in use of the FCC Blog while a consensus-based framework is developed for its use.

  • Use of closed Commission meetings from time to time to discuss internal processes. The Government in Sunshine Act generally requires open meetings for multiple member agencies BUT there are exceptions. Specifically 5 USC § 552b(c)(2) provides one for meeting that "relate solely to the internal personnel rules and practices of an agency". As far as I can tell, the last time there was an FCC closed meeting on any matter was the one announced below on November 1, 2001:
    • 2001-Sunshine
  • The senators on the Senate Committee on Commerce, Science, and Transportation should get together and discuss whether they really want in the long term an FCC that is dominated by former congressional staffers. (While Comm. Clyburn is not literally a former Hill staffer, she is clearly well connected there.) This custom dates from the 1990s in the Clinton Administration as a general "work around" to get commissioners in various regulatory agencies confirmed. While it solved that problem, it has created new ones including the lack of anyone who has had real experience in the regulated industries since James Quello was appointed first in 1974. In particular, no one who has worked in Silicon Valley has ever been nominated. No one has ever tried top meet the payroll of an entrepreneurial firm that was waiting for nonroutine FCC approvals of a new FCC-regulated technology. Hill alumni have many skills, but a near monoculture of them may well be a contributor to the current situation.

  • A consensus-based review of the delegations of authority contained in Part 0, Subpart B. Most of these have not been updated in generations. It is clear that some commissioners are upset over actions taken on delegated authority that they are not consulted on. It is also clear that there are many issues, particularly obscure noncontroversial technical issues that are being voted on by the commissioners that, in all due respect, they do not add value to. The requirement for en banc votes either at a meeting, by circulation, or by "consent agenda" slows down resolution of matters that can slow down innovation. This is discussed in greater length in my TPRC paper on FCC productivity in spectrum policy. If the board of General Motors had to see and vote on every design detail of next year's Chevy, it would never be produced. FCC should consider models of other US multimember commissions and also how Ofcom delegates matters to its staff. The commissioner should generally vote on the issues that are important to them and give staff real guidances on what is delegated and more general policies should be developed for dealing with such delegated matters with reasonable checks and balances. This should improve 8th Floor harmony.



A 2/26/16 story on this blog post in TRDaily stated:

"In addition, he said senators should consider whether congressional staffers should continue to be confirmed as FCC Commissioners, saying such confirmations have resulted in many people with no experience in the industries the FCC regulates."

Note that this differs in key respect from the actual original post above which states:

"Hill alumni have many skills, but a near monoculture of them may well be a contributor to the current situation."

The issue is not whether former Hill staffers are qualified to be commissioners at FCC, but rather whether this should be the background of most commissioners.


Comm. O'Reilly's Post on "Defending Capitalism in Communications"

This week Commissioner O'Reilly posted on the FCC Blog an essay entitled "Defending Capitalism in Communications". It starts with this introduction:

American capitalism, and its role in the communications industry,[1] should be embraced, celebrated, and exported throughout the world. Instead, it is under continuous assault domestically by self-defined progressives and ultra-liberals, who have found sport in using misguided rhetoric and false pretenses to denigrate one of the core tenets of American society. They demonize company executives, decry profits and income, promote class warfare and push policy positions favoring government-provided services over private sector solutions. Beyond being disingenuous and inflammatory, these views completely ignore the extraordinary benefits that the American capitalistic system brings to communications services.

Without proper checks and reassertion of our commitment to free enterprise, the latest anti-capitalism talk risks seeping into Commission proceedings and underlying activities. In fact, signs of it can be seen in multiple Commission proceedings, from municipal broadband advocacy to the harmful net neutrality overreach. The following briefly explores just some of the benefits of capitalism.

There are then 5 sections:

1. Connects Willing Buyer and Seller in Marketplace
2. Minimizes Need for Government Interference
3. Protects Consumers Efficiently and Sufficiently
4. Facilitates Profits and Economic Growth
5. Fosters Entrepreneurialism

Your blogger has posted this comment to Comm. O'Reilly's posting

You did not explicitly mention the issue of technical innovation and FCC, but I think this is consistent with your general view. Despite decades of FCC deregulation enabling "permissionless Innovation" there are technical areas where FCC has not been able to develop such a framework. Some technical innovations still require "Mother, may I .." requests to FCC.

Thus the iPhone was introduced with only fast routine FCC approvals but the issue of ANY use radio technology above 95 GHz is the exact opposite requiring non routine approvals with no particular time schedule. While many criticize FDA New Drug Approval procedures, FCC's procedures for new technology requiring unusual approvals is worse in many ways. At least FDA has nominal schedules for NDAs and tells applicants what is needed in their requests

FCC has had before it a
petition for a declaratory ruling from IEEE-USA on the issue of whether technology above 95 GHz should be presumed to be "new technology" in the context of Section 7 of the Communications Act. (Note that since 2003 FCC's radio service rules have ended at 2003 GHz and therefore new rules are needed for any type of licensed or unlicensed transmitter above that frequency.) This petition was filed in July 2013 and in January 2016 it was revealed that 2.5 years after filing it is circulating on the 8th Floor. TRDaily reports that the draft says that Section 7 requests should always be handled on a "case by case" basis. Oddly in the 30+ years since Section 7 was signed into law by President Reagan FCC has not found one "new technology"!

A basic precept of capitalism is that innovators should be able to get new products and services to market in a timely way and let the marketplace decide on their merits. Many people agree that this should be tempered somewhat for products and services that may cause harms. But the endless delays that FCC imposes on new technologies not in areas subject to "permissions innovation" are generally independent of harms to others.

FCC has pledged to deal with corporate mergers on a t
imely schedule with online status tracking. As far as I am aware there is no statutory mandate for this timely consideration but FCC has chosen to do it as a matter of good public policy. However, Section 7 does give a clear legislative mandate that "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." Further Section 7(b) requires " 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." This is not a perfectly drafted piece of legislation, but are all other parts of the Communications Act that much clearer?

For 30+ years under leadership of BOTH parties FCC has been trying to dodge these mandates. FCC has never asked Congress to modify or clarify or even remove them.

Is this timeliness needed? Look at the examples given by Mitchell Lazarus, a prominent communications law practitioner specializing in innovative radio technology, in
his comments in Docket 09-157 of noncontroversial radio innovations that were delayed for years.

Look at the
Petition for Rulemaking filed by Battelle Memorial Institute more than 2 years ago for use of a 105 GHz point-to-point system in a band beyond the FCC's 95 GHz limit but consistent with all US spectrum allocations. While this has been mentioned in both the NOI and NPRM in Docket 14-177 there has been NO action on either implementing the proposal or rejecting it. Meanwhile our foreign competitors are targeting spectrum above 95 GHz for commercial use with industrial R&D support and with proposals adopted at WRC-15 (without US participation) to create new ITU spectrum allocations in 275-450 GHz at WRC-19.

Thus the concepts of capitalism require that new products and services must get a timely market test unless there is a real reason to stop them. While many such products and services are now subject to "permissionless innovation" at FCC, many are not. FCC should implement procedures to deal with them in a timely way or be prepared to give technical leadership to our foreign competitors.


Something CTIA and Wi-Fi Community Might Agree On


These days CTIA and the Wi-Fi community don't seem to agree on much due to the ongoing LTE-U/Wi-Fi controversy. But here is something that they are both likely to agree on for this weekend: Let's hope that FCC's total abdication of interest or responsibility for any aspect of drone spectrum issues does not result in spectrum chaos this weekend in the cellular bands and/or Wi-Fi bands, but possibly other bands if the drones marketed in the US are as noncompliant with spectrum emission rules as the drones marketed in Europe.

Readers may recall that we reported 10 days ago on the EU study shown at right that found high EMC noncompliance rates in the European market. Do you think Asian manufacturers are more careful with models destined for USA because they fear FCC enforcement?

This EU report observed what has been previously discussed here about the interference potential of drones that are not properly regulated:

Signals transmitted from the air to the ground have a significantly bigger coverage area than from the ground. Therefore, interferences generated from RPAS could have a major impact on radio communication. This means that there is a higher risk of harmful interference if RPAS systems do not meet the essential requirements.

So let's hope that the huge number of new drones that will be airborne this weekend do not result in spectrum chaos due to their location at altitudes that were not expected by cellular planners and Wi-Fi users or from out-of-band emissions. And let's hope that if they do cause interference that FCC will respond more quickly and decisively than it did in the case of "cellular boosters", police radar detector interference to VSATs, or the ongoing FM harmonic interference to 700 MHz LTE base stations - which FCC has never made a public pronouncement on.

Perhaps serendipity might save the spectrum community this time from chaos. But really, is this the way to protect multibillion dollar industries that are deeply tied to our society and economy? Should we have an FCC that can pay attention to issues other than corporate merger review and finding more spectrum for cellular carriers?

After the holidays, readers might want to review my TPRC paper this year that deals with FCC productivity shortfalls in spectrum policy and argues that they result from BOTH resource shortages and an inability for the FCC's "8th Floor" to understand they have to delegate some issues more in order to keep up to the magnitude of their job in today's IT focused world. (General Motors board of directors does not review every design detail of next year's Chevy because they could not keep up with their strategic responsibility if they did. FCC's commissioners need to develop a more collegial relationship and decide which issues are "bottom line" for they and need limited availability en banc deliberations and which can be left to staff under agreed guidelines like Ofcom has with its staff.)

And let's all pray we avoid spectrum chaos this weekend. Best wishes to all for a happy holiday season!

Wright Case Highlights FCC's Petition Black Hole


The above snapshot of the FCC's home page today shows FCC crowing about its success in the Wright Petition case dealing with inmate call rates. While this Title II proceeding has little to do with spectrum policy it highlights the little known details about how the FCC's "petition black hole" works. The right to petition the federal government is one guaranteed by the 1st Amendment and the APA (5 U.S.C. 553(e)). FCC has implemented this requirement with 47 C.F.R. 1.401. But all this means nothing if petitions fall into an administrative black hole where they can not be seen, let alone acted on!

The chronology at left shows the basic history of the Wright case, a petition from a grandmother wanting to keep in touch with her incarcerated grandson while he was in prison but finding the rates for the only available telephone service to be prohibitive due to a serious case of market failure. (Cue the jokes on "captive market".) It is interesting to note that this issue did not start at FCC. The petitioner, perhaps having no faith in FCC, first went to federal district court seeking relief. On Aug. 22, 2001 the federal DC District Court found

"These cases raise issues that are of great human concern to inmates, their family members and their counsel. . . . In referring this matter to the FCC, the Court expects the agency to move with dispatch to conclude its ongoing proceedings so as to provide both courts and parties with meaningful analysis and guidance on these issues." (Emphasis added.)

So this case was not a random petition that just wandered into the FCCs inbox, it came with the urging of a federal judge to "move with dispatch" and even then FCC frittered away years on inaction!

Petitions from techies for new spectrum rules or even waivers also can be caught in the FCC's petition back hole for years. The NPRM in Docket 13-111 on contraband cellphone use in prison accidentally gave a clue about the petition blackhole at FCC. The drafters of this NPRM had the award issue of how to deal with several petitions relating to it that had been gathering dust for years without even a request for public comments.


The drafters dealt with this awkward issue by identifying the petitioners with their index numbers in ECFS using a scheme that had never been revealed to the public and was not even widely known within FCC. So if you input into ECFS "PRM14WT" you get back a list of all petitions that were assigned to the Wireless Telecom Bureau, correctly or not, in 2014. There you will find that a petition from key industry player Land Mobile Communications Council was filed on 05/15/2014 and public comments were requested on 07/21/2014 as RM-11722 . But petitions from the more obscure Mark Friedlander and Cord Davidson remain in the FCC's black hole, nether having been dismissed nor having been put out for public comment.

So here is a concrete suggestion to address the root cause of the Wright Petition delay and delays of petitions lingering in the black hole: FCC should establish an online database of all petitions for rulemaking and waivers within a few weeks of their filing at FCC that identifies which bureau they have been assigned to (something that is sometimes in error) as well as stating what the current status of the petition is, e.g. without any action, dismissed, public notice requesting comments has been issued, NPRM issued, etc. FCC should also public statistics on time to resolve such petitions. So while today's commissioners decree the delay of the Wright Petition, let's make sure that never happened again in either technical or nontechnical proceedings at FCC.


Does Wireless Mic NPRM Set a Record for Number of Questions?

On 8/11/15 FCC released the above NPRM in Docket 14-166 on wireless microphone use. Readers may recall a previous post entitled "Do FCC NOIs/NPRMs Have Too Many Poorly Organized Questions?" and a related one titled "How Many Questions in FCC NOIs/NPRM? 'Let me count the ways' " that included Elizabeth Barrett Browning's Sonnet 43 as a service to readers. But the Docket 14-166 may well set a new recent record for FCC!

Let me count the ways:


Above is a typical page with all the questions ending in question marks highlighted. There are 314 such questions and they appear on 49 different pages! Is that all? Of course not! The multiple authors of this document are very creative in making and hiding questions to make an exact count difficult. The word "seek" appears 158 times in such uses as

  • "Further, we seek comment on proposals for authorizing wireless microphone operations in additional spectrum bands, consistent with the Commission’s overall spectrum management goals_ - para. 4
  • "In addition, we seek comment on authorizing licensed wireless microphone operations in other bands. " - para. 30
  • "We seek on comment on the different groups of wireless microphone operators and their various uses of microphones, including the particular applications served by the microphones, the types and number of devices used, the extent to which the devices are analog or digital, the settings in which they are used, and the frequency bands they use. " - para. 33
  • "We also seek comment on the nature of the demand for wireless microphones by various wireless microphone users" - para. 38

Arguably some of the uses of "seek" in the text are not actually questions, so the count of 158 is a little high. But FCC staff has ways of asking questions without either the use of a question mark or the work "seek":
  • "We ask that the different user groups, or the manufacturers of products for these groups, provide detailed information about the particular nature of wireless microphone uses by different groups of users." - para. 33

Your blogger actually compiled and submitted a list of all the 176 questions in Docket 14-177 (24+GHz 5G), but he does not have the patience to do the same in this tangled mess. As we have indicated in the posts mentioned earlier, both UK's Ofcom and Industry Canada number questions in their NOI and NPRM counterparts. Now some would say that they are not subject to the APA like FCC is, but having attended the FCBA reception at the Supreme Court last night, let me boldly say that I don't think the Supreme Court would remand an FCC decision just because its questions had numbers. It might remand a decision because it did not address the record and with so many tangled questions, how does one address the record?


TPRC Paper on FCC Spectrum Policy Throughput


On Thursday 9/17 TRDaily, a prominent communications policy newsletter, published an article about your blogger's paper for next weekend's 2015 TPRC | 43rd Research Conference on Communications, Information and Internet Policy (formerly Telecommunications Policy Research Conference). The previous link goes to the paper that can be downloaded for free.

The paper does not criticize any specific FCC decisions, rather it is concerned about the speed and transparency of such decisions. The concerns raised in the paper are not due to any one chairman or one party, rather they are issues that have developed in the past 20-30 years under multiple leaders.

Here is the abstract:

Today’s FCC is not as well structured to handle the reality of its spectrum policy workload as the early Commission was and may not be even keeping up with workload. Indeed, there is increasing evidence that “triage” is a key issue in spectrum policy. That is the nontransparent decision to even address an issue is a major determinant of its outcome. This could be both deterring capital formation for new spectrum technology R&D as well as creating real risks for incumbent licensees since emerging interference issues that need rulemaking or nonroutine action are not getting resolved in a timely way.

In 1934, the new FCC took a page from the structure of the ICC, one of its predecessors, and divided the then 7 commissioners into 3 “divisions” that could operate independently in the police areas of telephone, telegraph, and radio. There was no Administrative Procedures Act (“APA”) so rule deliberations were far simpler than today. The maximum frequency in routine use was 2 MHz and the modulation choices were just AM and radiotelegraphy. In the early days, a few of the commissioners had technical experience in spectrum issues.

Today we have the APA and nearly 70 years of court decisions than make rulemaking much more complicated. We have 5 commissioners that only make decisions en banc with virtually no §5(c) delegation to staff on emerging issues. Allocations go to 275 GHz, but service rules have been stuck at a 95 GHz limit since 2003. The selection process for commissioners appears to be focused on nonspectrum and nontechnical issues.

The result of all these factors is long drawn out deliberations on both new technology issues and on resolution of merging interference issues. While the US’ economic competitor nations often use “state capitalism” as a key issue in spectrum policy by subsidizing chosen new technologies and then cooperating to remove national and international spectrum policy limits for them, US entities in spectrum R&D often face both a lack of funding and an indifferent FCC (as well as NTIA - if access to G or G/NG spectrum is at issue).

The paper looks at a variety of spectrum policy issues FCC had dealt with since 2000 and examine the delays involved and their impacts. The issues consider include new technology issues such as the TV White Space, the FWCC 43 GHz petition and the Battelle 105 GHz petition as well as emerging interference issues such as police radar detector/VSAT interference, cellular booster-related interference, and FM broadcast/700 MHz LTE interference. The time lines of such deliberations will be reviewed as well as the likely impact of these timelines on the business plans of FCC regulatees.

Finally possible options to improve FCC throughput that are both feasible within existing legislation and consider approaches successfully used in foreign spectrum regulators will be discussed.


"Field Office Modernization" OR Spectrum Enforcement Cutback

Yesterday FCC at a public commission meeting voted unanimously to

"modernize the agency’s field operations within the Enforcement Bureau. The proposal will improve efficiency, better position the agency to do effective radio interference detection and resolution and meet other enforcement needs, and save millions of dollars annually after implementation is complete."

The decision was in an Order that was adopted and released immediately. The Order states

The Field will embark on a program to update its equipment and employee skillset to address the likely issues that will accompany new and expanded uses of spectrum. This program will include the expanded use of remotely operated monitoring equipment to supplement field staff, as well as the identification and use of portable devices capable of assessing interference issues in bands expected to experience heavy spectrum use. Upon completion of all required implementation steps, the Commission will first apply the net savings resulting from this reorganization effort to this program, before applying those monies to the agency’s general fund. The net savings will not be used to increase the number of full-time non-field-related employees in the headquarters office of the Enforcement Bureau.

Now recall that TR Daily previously reported "FCC officials also have told stakeholders that the field operations would get the first shot at any money the FCC saves by closing field offices." So where are the savings going? Will there really be enough money after all these jobs are eliminated "to update its equipment and employee skillset"? While a statement has been made that savings can not be used to increase EB front office bureaucrats - comments were made at the commission meeting that EB front office bureaucrats have actually have increased significantly in the past few years - there is now little assurance it will actually go to equipment and training.

Paragraph 15 of the Order states "IT IS FURTHER ORDERED THAT all Enforcement Bureau field agents shall have electrical engineering backgrounds." Your blogger was educated and overeducated in electrical engineering. He has actually worked in spectrum enforcement. Focusing on academic credentials for such work is naive. Perhaps the intent was not to have non techies, but the skill set for solving spectrum enforcement problems in the field has little to do with most EE curriculums these days. Yes, some universities such as Virginia Tech, UCSD, NYU (now merged with "Brooklyn Poly"), and University of Texas-Austin have programs in wireless technology, but the vast majority of EE graduates have virtually no exposure to wireless technology, focusing on issues such as software engineering and semiconductor design and manufacturing. This coupled with the totally inept technical staff recruiting FCC has had for the past decade means less capability in new hires, not more. For spectrum enforcement, you need people who really understand spectrum issues intuitively. Let us go back to the MGM-produced WWII era film "Patrolling the Ether". When FCC wanted good agent then it hired ham radio operators. While having a ham license is not a perfect predictor of success, it is a better predictor of success than simply having an EE degree given the state of EE education in wireless issues now. One has to hire good people, not take short cuts in focusing on credentials!

For the past 3 decades, ever since Ed Minkel became the first Managing Director, FCC has avoided paying for personnel relocations. Will FCC pay for relocations related to this downsizing? For example, will staffers whose jobs are eliminated be eligible for FCC paid relocation to another office with a vacancy or to Washington if they are selected for a job there? We believe that the near total absence of FCC-funded relocations were both a major contributor to poor morale in field offices and has denied FCC headquarters of the historic flow of individuals with field experience and actual problems of licensees. The 2016 FCC Budget has only $55k for Budget Object Classification Codes 22, "Transportation of Things" and there is no indication of any budget for the subcategory "2210 Change of Official Station".

Finally a word to the GPS, aviation, and consumer electronics industries: Your trade associations, GPS Innovation Alliance, AOPA "Protecting your freedom to fly", Airlines for America, and Consumer Electronics Association were totally silent during the several month public debate on this downsizing that even under the best of circumstances will result in a lot fewer "boots on the ground". The broadcast industry, cellular industry, and public safety interests spoke up loudly during the deliberations on "modernization"/downsizing and as a result they got specific assurances that their interests would be attended to. Your industries were totally silent. Therefore do not be surprised to see the outcome of less spectrum enforcement on your industries may be much more severe than on those who spoke up!

  • GPS: The GPDS industry is very susceptible to jamming sometimes called "privacy protection devices". FCC has the legal authority to both stop jamming and to stop the marketing of jamming devices. Will have the number of field agents and have the number of field office improve their capability?

  • Aviation interests: The report that started this downsizing clearly stated that since FCC-enforced antenna marking and lighting issues have high compliance now less enforcement is needed. Fortunately aviation collisions into towers that are poorly marked, poorly lighted, or reported in incorrect locations are rare, but you know what the consequences of such collisions are! A lot of tower owners will know they are hundreds of miles away from the nearest FCC office and that the likelihood of marking and lighting enforcement has just decreased markedly. So why hire a tower caliber to replace that bulb? Fly carefully now!

  • Consumer Electronics: FCC Rules serve to both limit interference and to create a "level playing field" for firms competing in the manufacture and sale of consumer electronics. In the consultant's report that lead to this downsizing, equipment marketing enforcement was never mentioned. So don't expect much in the future!
Although never mentioned in the discussion yesterday or in the released documents, there are reports now that those who keep their jobs as a result of this "modernization" may still face reclassification to a lower GS grade and thus a loss in net pay. (Federal personnel law prevents a salary decrease for a few years, but denies raises in such cases.)

When Public Safety and Homeland Security Bureau was formed, EB's HF/short wave direction finding system and its interference location functions migrated there in an action that was disclosed at the time without much discussion. Since then that operation has become very secretive, perhaps only mentioned in the Inspector General's report on porno in FCC computers. This operation is so secretive that there was no public mention of a new building at the FCC's Columbia MD property that is certainly the largest FCC-owner structure built in decades and probably the most expensive. A recent FCC employment vacancy announcement implies that satellite monitoring and enforcement functions are now also moving to PSHSB. So is EB getting out of this area also without public discussion? Does the 8th floor know? What does the satellite industry expect the amount of attention to them will be after this change? Satellite industry issues that require "boots on the ground" "outside the Beltway" will now require cooperation of 2 FCC entities, one of whom views spectrum enforcement as its lowest priority.

When FCC was Serious About Spectrum Enforcement

Pirates & Comm Room

In searching through some old photos your blogger found the above picture of the “Comm Room”, the 24/7 command post of Enforcement Bureau’s predecessor, FOB. The photo is dated 1994 and is at the former 1919 M St., NW location of FCC. Your blogger is showing around some visitors from the FCC’s Japanese counterpart and was not responsible for the operation of this facility - rather at this time during his “exile” resulting from the 1985 Wi-Fi decision when he was responsible for new technology to support spectrum enforcement work.

What was interesting to note is the “BUSTED” sign showing 27 pirate radio operations that had been closed down in recent months as part of a friendly contest between the enforcement regions. Pirates often operate at night and on weekends and overtime is needed to chase them. Travels costs of also needed in many cases. Is FCC interested in chasing and closing, let alone prosecuting, private radio station these days? It does not appear that they are!

Briefing on FCC Consultant Report
on Spectrum Enforcement Downsizing

This is why spectrum enforcement costs more per FCC employee than processing clerks in Gettysburg. Note that police and fire personnel cost more to local governments than marriage bureau clerks: like spectrum enforcers that need “special toys”, they need vehicles, they need more space than clerks, they need multiple offices to be able to respond to events in a timely way. Police need special cars, weapons and other specialized equipment. Fireman also need fire trucks, fire houses near the areas they protect, and specialized equipment - ever watch Chicago Fire? Who would think of a direct comparison of such costs to office-based employees.

Of course, slide 2 of the briefing shown above shows that EB had already made spectrum enforcement its 4th and lowest priority before they even considered downsizing:
Slide 2 from briefing on consultant report

The report finds that “only 40% of Field time address RF spectrum enforcement” - Slide 11. Did they ever ask firemen how much time they spent actually putting out fires?

The report envisions “Equipment that meets the needs of the Field to resolve matters timely and efficiently” - Slide 18. Do the authors and the Commission realize that technical equipment - for both enforcement and the OET Lab - historically has been an afterthought in FCC budgeting? The pending FY 2016 budget request, before Congress no doubt cuts it, calls for $121,920 for OET and $167,132 for EB in equipment purchases. While some extra money is usually added just before the end of each fiscal year, such last minute spending is severely restricted due to procurement issues and certainly does not allow for equipment customized for FCC enforcement. Look at the current Keysight (formerly Agilent/H-P) website prices and you will see that this type of money doesn’t go very far. (If FCC buys equipment that DoD is buying in large quantities, then the price might be 30% less by “riding the contract”. But this then limits equipment selection choices.)

How much money has EB been spending to develop new spectrum enforcement techniques? How much does it plan to spend if the downsizing is approved? It is ironic that when I worked in the old FOB it received funding from other agencies for special shortwave monitoring such as surveillance of Soviet jamming of Voice of America. This funding was then used to develop new technical enforcement methods of value to both FCC enforcement and the sponsoring agency. However, with the creation of the Public Safety and Homeland Security Bureau, the short wave mission was split from EB and hence that source of money for technique development dried up.

Slide 19

With such a tiny budget how practical are “beneficial partnerships”? Should the real focus be “mobility solutions”? In the real world there are a lot of interference complains to public safety that are very intermittent but very troubling. The circa 1991 case at Roanoke VA airport comes to mind as a individual used a VHF aeronautical radio to give orders to aircraft while they approached the airport late at night every few days. The key to solving such cases is to collect data verify the presence of the illegal emissions and to start narrowing down the location of the source. Many of these initial reports of interference turn out to be false due to equipment malfunctions, unusual radio propagation, or operator confusion. So the ability to get equipment to an area quickly and leave it there under remote control is important for both confirmation and data collection on approximate location area and technical characteristics of the interference source that can be used for evidence uncivil or criminal enforcement. (We note that its has been more than a decade since EB has been involved in any criminal prosecutions related to spectrum enforcement - perhaps consistent with the low priority above.) Sending multiple people to do the final tracking is not cost-effective unless you are certain the problem is real, know the modus operandi and typical times of occurrence, and have evidence that can be used in enforcement actions to document illegal transmissions.

The study correctly noted that broadcaster public files are now online - meaning that onsite inspections of such files are not needed. Actually over the years, many field functions have been eliminated or moved to other parties including amateur license exams and most ship inspections. This generally has been done with legislation. Oddly, the study feels tower lighting and marking inspections are no longer important. While it unclear why Congress ever tasked FCC with enforcing tower marking and lighting on FCC licensed antennas - in most other countries the FAA-equivalent has this jurisdiction - compliance
helicopter crash
in this area has a key difference with other spectrum enforcement matters: if there is a violation real people may die! This is not the EB’s higher priority “safeguarding competition”, this is actually saving lives.

Consider the Coinjock NC helicopter crash into a new unlit tower that killed 2 people. This results in a $1M payment to the federal government that was the largest FCC penalty ever at the time!

FCC spectrum enforcement has some major problems, but a preemptive slashing of resources is not the solution. More dialogue with the spectrum users is needed. Possibly more enforcement functions can be privatized, but this will require consensus building and new legislation.

Your blogger was active in investigating and prosecuting the satellite jamming incidents of the 1980s. At that time it became clear that there was a long term technical solution to locate satellite interference sources in real time but that the resources needed to implement it was beyond what FCC could ever afford. The former FOB sponsored a multi month dialogue between researchers in this technology and satellite owners and encouraged private funding of the appropriate technology’s development and private operation when it proved successful. This technology is now implemented in the private sector and intentional and unintentional satellite interference is handled routinely without FCC intervention. In some areas, similar privatization may decrease the need for FCC resources, but this $750,000 contractor study does not address this type of issue at all.


As this was being drafted, Communications Daily broke the above news that FCC will maintain a spectrum enforcement “presence” in Alaska, Hawaii, and Puerto Rico. Whether that presence will be one person is not clear. This change indicates how poorly the original plan was thought out!

DHS's IG Investigates and Reports Whether Agency is Doing Its Job

Why Doesn't FCC IG Do the Same?

ABC News Videos | ABC Entertainment News

A breaking news item today is an investigation by the Department of Homeland Security’s Inspector Generals on how well the Transportation Security Agency is doing its statutory mission with respect to passenger screening. The acting head of TSA has already been replaced.

The FCC IG has the exact same statutory mission as the DHS IG.

The law does not differentiate between IGs appointed by the President, mainly Executive Branch IGs, and IGs appointed by some independent agencies. The mission and responsibilities are exactly the same! Yet historically the FCC IG has been content to look at petty malfeasance by junior FCC staffers and USF fraud. Whether the FCC is doing its job seems to be “beyond his pay grade”. Perhaps this is because all FCC IGs have been FCC insiders - perhaps known to the 8th floor not to be “too inquisitive”.

We are now in the middle of a proposed major downsizing of the FCC’s spectrum enforcement operation. A $750,000 outside study apparently found that spectrum enforcement was “inefficient” and morale was terrible. Did any findings in this area come for the FCC IG? Of course not! Look at the most recent FCC IG semiannual report. Other than a series of USF-related fraud issues, the only investigation disclosed specifically is the following:

FCC Employee Time and Attendance Fraud: Substantial Overtime

An employee was alleged to have committed time and attendance fraud including improperly claiming overtime pay, working fewer hours than their tour of duty required, and spending considerable time while on official duty selling personal products. According to the data reviewed by OI Internal Affairs, the employee failed to complete a full tour of duty 72 out of the 78 days or 92% of the time. In addition, forensic review of digital evidence did not substantiate the other claims of inappropriate activity while on official government time. The matter was referred to Bureau management for disciplinary action as deemed appropriate.

Look at the reports the FCC IG has released. Most deal with USF-related issues although two deal with FCC security issues. In efficiency of spectrum enforcement operations? Excessive delays in dealing with petitions files at FCC? Compliance with § 7 of the Comm Act? No time for those issues.

A credible IG would make FCC more credible.

The FCC IG is reportedly investigating now the procedures involved in the Net Neutrality decision. Given his track record, will anyone believe his report?

Should FCC Clean Up Its Spectrum Policy Backlog Before Reviewing Another Cable Merger?

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:

  • 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!)

  • 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.


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!

Proposed FCC Spectrum Enforcement Cutback

Above: our Twitter feed scooped everyone else on the news of the spectrum enforcement cutback on 3/10 and had a
key role in stimulating discussion on this vital spectrum policy issue


As your blogger first tweeted on March 10 , FCC is considering a major cutback in spectrum enforcement activities including both a staff reduction and office closings. We would fully agree that something iOS wrong with spectrum enforcement at FCC now and or the past decade or two, but it seems unlikely that this massive downsizing is the right answer. The proposal is based on a consultant’s report that you blogger has filed a FOIA request for on 03/17/2015 although nothing has been received. A package of related material was received from an outside FCC source and has been posted on DropBox. It consists of a 2 page letter from Chmn. Wheeler to House E&C Chairman Walden, a 2 page letter from Chief, Enforcement Bureau and the FCC Managing Director to the Enforcement Bureau Field Staff, and a 36 slide Powerpoint presentation. There is reportedly a 300 page report behind this, appropriate since the study cost $700,000 - much more than EB has spent in technical equipment in any year for the past several decades. Presumably, when FCC finally addresses the FOIA request we will know if the 35 page prevention is all FCC got for nearly $1M!

Let me bring up some issues that are not addressed in the available documents:

  • This is an era of increased spectrum sharing in order to get maximum utilization of spectrum - a limited resource. Many parties, both in the federal government and in the private sector are reluctant to share their spectrum. After all, “what’s in it for them”? The 5 GHz U-NII unlicensed radar spectrum sharing policy change resulted in interference to a safety critical NOAA weather radar. FCC’s spectrum enforcement staff had to sort this out quickly and identify both policy issues and noncompliance issues. While this might not seem a classic function of the Enforcement Bureau, it is a function critical to FCC and its Title III role. In order to encourage future sharing and reallocations, FCC must maintain a credible posture for rapidly resolving such interference whether they are policy based or compliance based. Thus our biggest concern about this proposal is the loss of credibility of FCC spectrum enforcement. While NTIA likes to state publicly that it is in change of federal spectrum management, a more pragmatic approach is that large federal spectrum users such a DoD and FAA and well positioned to drag their feet on spectrum sharing if they don’t feel comfortable with enforcement issues.

  • What will be the impact of the FCC enforcement downsizing on federal spectrum users and public safety spectrum users? While FCC could save resources by decreasing its spectrum enforcement staff, if other federal agencies respond by adding more staff and technical resources and if large state and local public safety agencies do likewise there will be no net savings. In particular, FCC spectrum enforcement staff has special legal authority for inspections that other agencies lack. So FAA can increase its staff, but their effectiveness is limited by the law.

  • EB a long time ago lost interest in hard core spectrum enforcement. Your blogger worked in EB’s predecessor in the late 1980s after being exiled from OET because of the then controversial decision that is known as the foundation of Wi-Fi and Bluetooth. But during the few years he was there he was actively involved in 4 criminal prosecutions for violations of the Title III and related legislation: 2 satellite jamming cases, 1 Coast Guard false distress case, and 1 FAA air traffic control intrusion/“phantom air traffic controller” case. (There was another case where FCC pushed for prosecution after it identified the source of ATC intrusion, but FAA top leadership refused to cooperate for political reasons so there was no resulting prosecution.) It appears that since the creation of EB there has never been a similar criminal prosecution. While criminal prosecutions are not the only way to deal with spectrum violations, there are some dangerous and antisocial violations where criminal prosecutions are perfectly appropriate. Why hasn’t there been one in the history of EB?

  • Historically, the field-based spectrum enforcement staff rotated around the field and some rotated into Washington. Some even transferred from field enforcement to DC-based policy positions. This cos fertilization was very constructive for FCC and resulted in 4 bureau chiefs: MB’s predecessors James McKinney and Lex Felker, WTB’s predecessor Carlos Roberts, and OET’s Richard Smith as well as many middle manager e.g. former IB branch chief Rick Engelman. But in response to Reagan Era budget cuts, FCC stopped virtually all agency funded moving of staff. Whereto this is even legal is debatable. But it certainly is a terrible personnel policy. You are hired in office x which is recent years have all had a tiny staff and you can only get more experience or a new environment if you more yourself to a new location. The consultant’s report says field spectrum enforcement staff morale is low - this long standing policy is a key factor.

  • The importance of deterrence. When your blogger first came to FCC, Radio Shack was one of the largest retailers of Title III-regulated equipment. Dave Garner, their regulatory counsel, explained the importance of visible enforcement in equipment marketing. he explained further that product managers frequently tried to cut corners for a competitive edge and that he routinely had to plead to the CEO to block the development and marketing of noncompliant products. He could only do that because FCC had a credible enforcement program for equipment marketing enforcement. It no longer does. Neither EB nor OET wants to check what is really being marketed. What little surveillance there is is done by the commercial testing community which fundamentally has a conflict of interest! They are supposed to check post approval production units for 5% of the models they approve. But this is a sore point for the labs and there is no incentive for them to be suspicious. In reality, the only enforcement is in response to complaints from competitors, preferably those with a prominent lawyer representing them! (While I was in OET I was amused to see a former FCC chairman in private law practice walk in with another partner from his firm carrying a box of equipment. It turns out that his client made car battery chargers and alleged that a competitor charger was cheaper because it did not comply with FCC rules. While visiting the FCC Lab a few days later, I noticed that suddenly testing battery chargers had become a major project!)

  • Note that if thousands of units of illegal equipment are sold in the US before they are noticed and action requested by a competitor or interferee, it will take a long time to remove these units from service as long as they perform a useful function for their owner. So delays in finding noncompliant equipment due to lack of effective market surveillance poses a real risk to all spectrum users!

If you agree with some of these points, we urge you to make your views known to the 8th Floor as well as the key Congressional committees. FCC spectrum enforcement needs some major changes, this type of massive slashing is not the right approach! Indeed, why not try a new approach in one region first and do a real experiment?


FCC Congressional Spectrum Testimony & Millimeterwave Spectrum

House E C Com
On March 26th, Roger Sherman, Chief, Wireless Telecommunications Bureau; Julius Knapp, Chief, Office of Engineering and Technology; Gary Epstein, Chair, Incentive Auction Task Force; and John Leibovitz, Deputy Chief, Wireless Telecommunications Bureau and Special Advisor to the Chairman for Spectrum Policy testified before the Subcommittee on Communications and Technology of the House Energy and Commerce Committee. Here is the last part of their prepared remarks:

Keeping the Pipeline Flowing
In the fall of 2014, the Commission unanimously initiated a proceeding to explore the feasibility of using bands above 24 GHz for mobile wireless broadband and other wireless applications.The Commission is taking a proactive approach to examine the future evolution of wireless broadband technologies and determine what steps to take to create a flexible regulatory environment in which these technologies can flourish.
The Nation’s leadership in wireless, and our ability to meet the wireless needs of consumers, depends in large part on spectrum resources. We will continue to pursue effective spectrum policies, leveraging the tools Congress has provided. We will also look to this Subcommittee for assistance and guidance in developing new, innovative approaches to spectrum management, and standready to work with Congress and our federal partners towards these important goals.

We agree completely with the last paragraph. However, there previous paragraph raises serious questions about present FCC policy. While indeed FCC “unanimously initiated a proceeding to explore the feasibility of using bands above 24 GHz for mobile wireless broadband” in Docket 14-177, it has paid scant attention to other “spectrum frontier”issues before it and has tried to narrow the scope of Docket 14-177 to minimize its applicability to non-CMRS applications. See fn 64 of the NOI to see how the drafters were looking for excuses to do as little as possible in this proceeding. In that footnote, they reference the TAC report on Spectrum Frontiers saying “TAC suggested instead that the Commission should carefully balance the benefits and risks of adopting service rules in these bands and take an active role to establish a framework for coexistence with passive services.”

  • So what is FCC now doing to “establish a framework for coexistence with passive services”?
  • What about the bands above 24 GHz where there are no passive allocations at all? (e.g. 122.25-123 and 158.5-164 GHz)
  • What about the bands above 24 GHz where the passive allocations are co-primary, not primary? (e.g. 102-109.5 GHz)
  • What does FCC think that Sections 7(a) and 303(g) of the Communications Act actually mean?

Millimeter wave technology - It really is different
Why is FCC acting so slowly?


"StingRay" FOIA Release Shows Continuing FCC FOIA Problems

This week the website of TheBlot Magazine reported that “(a)fter a six-month investigation, TheBlot Magazine obtained a heavily redacted copy of a top-secret manual detailing StingRay and KingFish surveillance gear.” What is StingRay? ACLU describes it:

“Stingrays, also known as ‘cell site simulators’ or ‘IMSI catchers,’ are invasive cell phone surveillance devices that mimic cell phone towers and send out signals to trick cell phones in the area into transmitting their locations and identifying information. When used to track a suspect's cell phone, they also gather information about the phones of countless bystanders who happen to be nearby.”

The magazine reports that “ A heavily redacted copy of a 2010 user manual covering both StingRay and KingFish devices was delivered by the FCC last week”. When they say “ heavily redacted copy” they weren’t kidding! Here is a sample of what was released:


But lest we be seen as too critical of FCC here, let’s first report 2 positive aspects of what has happened:

  • The magazine actually got the release directly from FCC. This is a real improvement. We previously described a FOIA request to FCC for documents Motorola had submitted to FCC explaining why multiple units of hardware they made had caused interference to NOAA weather radars. In that case, FCC apparently allowed (requested?) Motorola to redact the documents any way they wanted and just send us whatever they thought was appropriate. We received the redacted copy directly from Motorola! In the present case, Harris Corp may have controlled all the redactions, but at least FCC wrote a cover letter and sent it to the magazine.

FCC Discovers and Starts Complying with 2007 FOIA Amendment
  • FCC now finally recognizes the requirement of Section 12 of the OPEN Government Act of 2007 that “the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made.” As can be seen in examples of previous FCC FOIA releases below, including even one by the FCC Inspector General, this statutory provision has been consistently ignored by FCC previously. (Perhaps Harris Corp.’s lawyers read the FOIA legislation better than FCC staff or Motorola staff in previous cases?)
At left is a document released by the FCC IG after a FOIA request in July 2014, 7 years after the FOIA amendment requiring that redacted material be marked with an exemption number. DOJ has clear guidance on this issue, yet FCC has consistently ignored it until now. It is troublesome that FCC’s Inspector General blindly followed the general FCC practice in this area. Thus it is no surprise that the FCC IG has never reviewed FCC’s FOIA practice for compliance with the law as the NRC IG has. (As we have written previously, the FCC IG’s historical near total lack of interest in FCC policies and practices seriously affects its credibility at a time when it is reportedly investigating FCC’s procedures in adopting net neutrality rules. There is a real likelihood that the office will find no fault in the present case and no one will believe it.)

Ignoring Obama/DOJ FOIA Guidance - See, FCC Really is Independent!
In the recent Net Neutrality issue there has been consistent recurring accusations that FCC takes secret orders from the Obama White House. Such accusations have even been echoed by the 2 Republican commissioners. Well, this excessive fealty to the Obama White House may be disproven by FCC consistent and ongoing dismissal of the concepts in President Obama’s publicly stated FOIA policy: On his first full day in office, President Obama signed the Memorandum on Transparency and Open Government calling for unprecedented openness and transparency in government and declaring information maintained by the Federal Government is a national asset. Here is an excerpt:

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.

All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.

This memorandum is not binding on FCC as an independent agency, and it is pretty clear that it has been almost completely ignored. So much for FCC’s alleged total fealty to the Obama White House!

Consistent Excessive Redactions

There have been a few recent cases where documents requested under FOIA were released by FCC and then released with fewer redactions. This allows a direct view of when FCC was redacting and whether it was justified. (By contrast, the document released by the FCC IG shown above has never been released in a less redacted form so one can only guess at whether the redactions were actually legitimate. However, we have previously speculated that this document was over redacted in some places and under redacted in others.)

Below is a Motorola submission to FCC in conjunction with the enforcement action concerning interference from Motorola equipment to NOAA weather radars. This was released, actually mailed by Motorola to your blogger after a FOIA request to FCC. Following it is a less redacted version after your blogger appealed to the full Commission and waited a year:

Motoredact812 Moto-less-redact-10-12
(Click on above images to expand the document)

Another pair of releases comes in the enforcement action concerning Google’s Spy-Fi operation and its legality. The top document is the document with redactions by Google that FCC nodded at when it released the document. After a public outcry, Google released the lower document with minimal redactions. Now that we can see what redactions FCC authorized/condoned in the upper document, were those redactions consistent with the law? Was it consistent with President Obama’s nonbinding guidance to FCC (but binding on Executive Branch agencies)?


A suggestion to readers: Compare the first redaction in the above 2 cases with the 2nd version. You can see the exact words that FCC redacted (or condoned the submitting party’s redaction) and see if you can find any plausible justification in the FOIA legislation for such redaction? If you happen to agree with your blogger that these redactions have no plausible justification, please communicate such to FCC leadership.

If CIA Has an Online Reading Room of Prior FOIA Releases, Why Not FCC?

While FCC claims to have a “Freedom of Information Act Electronic Reading Room” that allegedly includes “Records disclosed in response to a FOIA request that ‘the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records”, past FOIA releases are not readily available. FCC does not post previous FOIA requests and resulting releases except in very rare cases. Try to find the StingRay release on the FCC website, for example! (Although we must admit that in one case FCC released to us a document someone else had FOIA’s in only 3 days after we requested it! By contrast, CIA, NSA, FBI, and NRC do post previously released documents regardless of whether they are embarrassing to the agencies.

Remaining StingRay Issue: Who Authorized Its Use per § 301 or § 305?

While it appears that FCC made a minimal/slight attempt to comply with the FOIA request that asked for the StingRay information, there is another key spectrum policy issue here that has been unanswered dealing with StingRay: Who authorized its use under § 301 of the Communications Act? Use by a state or local law enforcement agency requires some sort of § 301 authorization. There are 2 obvious possibilities:

  • FCC has been giving licenses to state/local law enforcement organizations under waivers
  • State/local law enforcement agencies have been leasing spectrum from cellular carriers
Both of these alternatives should leave a paper trail, but none is apparent at present. Interested parties may wish to see if such a paper trail can be found. In any case, I urge the 8th Floor to decide for themselves who authorized this action and were the details proper.

What about StingRay use by federal agencies, e.g. FBI or DEA? Such use could have been authorized by NTIA pursuant to § 305 and § 902 of the Communications Act. NTIA is not known for transparency. But since StingRay almost certainly transmits in cellular bands (note that even this was redacted in the manual provided in response to the FOIA request), NTIA authorization would have required coordination with FCC pursuant to an interagency agreement. (The basic terms of this agreement have been in place since 1940 and have been strictly adhered to by both agencies.) So if anyone wants an exercise in frustration, feel free to FOIA FCC on correspondence with NTIA on permitting its use by federal agencies.

Maybe it is also time for an independent review of FCC FOIA practices?

UPDATE - Wild Inconsistency of FCC Redactions

After thinking about this for a while, your blogger wondered about the complete redaction of any quantitative data such as frequency and power in the redacted material that FCC finally released. How could this data be exempt from FOIA? So we took the FCC ID of the FOIA request, NK73092523, and went to the FCC “Authorization Search” page.

It was amusing to note that all the routine application documents were listed but virtually all were granted confidentiality and none had links available. Even 6 documents that were not granted confidentiality were missing:
  • “Revised ID Label”
  • “Final Request for Confidentiality of Harris Corporation”
  • “Revised RF Exposure 850MHz”
  • “Revised RF Exposure 1900MHz”
  • “Revised Test Report 1 of 2”
  • “Revised Test Report 2 of 2”
However, from the titles of the 3rd and 4th document above, it is clear this initial StingRay covers 850 and 1900 MHz bands.

But even more surprising was the official FCC equipment authorization grant which at the time of this writing can be access with this link. (Don’t be surprised if it disappears quickly.) The grant is shown above right and clicking on it will yield a larger image. It clearly shows the bands in which StingRay operates and the powers and modulations - all information redacted from the document FCC delivered for the FOIA request!

Why the wild inconsistency? There are hints throughout this issue that FBI is involved. Matthew Keys, the journalist behind the FOIA request, provided us with this statement:

“During the FOIA process, I was told that an outside agency was assisting the FCC in its fulfillment of the requested documents. Specifically, the outside agency was helping the FCC determine what information should be made public and what information should be redacted. To date, the FCC has refused to tell me the name of the outside agency.”

Note the grant contains a cryptic condition: “State and local law enforcement agencies must advance coordinate with the FBI the acquisition and use of the equipment authorized under this authorization.” In posted e-mail correspondence with FCC on the FOIA request, a delay due to an “outside agency” is mentioned. Also mentioned is an NDA between FBI and a local police department -- although it is hard to see how that was germane to the FOIA issue.

-So perhaps FBI, not Harris, actually redacted the document.
-Perhaps this explains the long processing of the FOIA request?
-This might explain why the redacted paragraphs are marked properly even though FCC had perviously ignored that requirement in FOIA releases. FBI may comply more with the letter of the FOIA legislation than FCC does.
-Perhaps FBI was more stubborn than FCC and demanded near total redaction even though the basic technical data was already public and the law and Obama Administration policy (binding on FBI but not FCC) did not allow such extreme redaction?
-Perhaps FBI did not know the information was already public in the grant?
-Perhaps FBI was so pig headed and arrogant in demanding total redaction that FCC didn’t bother to tell them about this contradiction? The world wonders.

Oh what a tangled web we weave,
When first we practise to deceive!
- Sir Walter Scott,
Marmion, Canto vi. Stanza 17.

But this inconsistency is not unlike the FOIA release of the IG “porno” report: In that report parts were over redacted and parts were under redacted allowing identification of groups that were under suspicion for porno access from FCC computers. Further indication of long term basic FOIA problems at FCC.

UPDATE - 4/11/15

UK’s The Guardian has now also written about StingRay. They go into detail about the NDA’s between FBI and local police, presumably of no concern to FCC although FCC conditioned equipment authorization on user agreement with FBI in each case.

They also found a total of 5 different StingRay models with FCC equipment authorization and show the FCC grants with the frequencies and powers listed. The same information that was redacted in the StingRay manual FOIA!


Major Spectrum Enforcement Cutback Planned at FCC:
Most Industry Silent


Word leaked out last week about a major cutback in FCC spectrum enforcement that is being implemented. This cutout results from a $745,603 study FCC commissioned from Oceaneast Associates, an SBA Certified Small Disadvantaged Business and 8a Program participant. The contract was award without competition to the firm which describes itself as “management and IT consulting firm”. We have filed a FOIA request for the report (Tracking FCC-2015-000358) and will make it available here as soon as it is obtained.

While the study has not been made public, it has apparently been provided to at least one member of Congress and this is likely FOIA-able although, as previously mentioned here, FCC’s FOIA practices are less transparent than CIA’s.

Here is some information that has leaked out about the report and FCC’s plans:

  • Some 160 stakeholders, including current and former EB/field staff, trade associations, government agencies, FCC advisory committees, and others, were interviewed by the consultant over a period of months - although reportedly NAB only hear about this a few days ago.

  • Report concluded field staff had little consensus on their mission, except that resolving public safety interference was always Job #1. Probably true as a result of 2 decades of poor leadership, inadequate funding, and discouragement of initiative to solve problems. Actually, one way to be ready to solve public safety problems quickly is to use idle periods to solve other interference problems to improve skills and try new approaches - but that has been discouraged.

  • Office closures and overall staff reductions will be balanced by increased field travel budgets, increased use of pre-positioned fixed equipment in locations where there is no field office, and establishment of a new quick-response “Tiger Team” based at Columbia. Remaining offices after cutback: NYC, Columbia MD, Atlanta, Miami, Chicago, Dallas, LA and SF. 33 agents remaining - a 50% cut

  • Increased field travel funding would be about $200k annually (Is this realistic considering the need for travel to Hawaii, Alaska, Puerto Rico and USVI, not to mention Guam?)

FCC’s jurisdiction extends beyond the Beltway!
Licensed under CC BY-SA 3.0 via Wikimedia Commons

  • Report found that the field is ill-equipped to monitor, identify, or locate problems related to many current or emerging RF technologies - again not a surprise considering low funding for 2 decades. Mobile DF is “becoming increasingly irrelevant” - perhaps, but works for most sources of deliberate and accidental interference.

  • Procedurally, an order started circulating on the 8th floor on March 9 that would authorize an internal re-organization. The Hill has a period when they can veto such a change, but does not have to fact either way and in the past never has. Union requirements specify 30- and 120-day time periods to reach agreement on the necessary terms of the reorganization and on personnel changes. Buy-outs, early retirement offers, and possibly RIFs. The earliest this reorganization could occur is Fall 2015.

But here are some other concerns of your blogger:

  • With the increased emphasis on sharing of federal spectrum by FCC licensees and new unlicensed technology, will the “powers that be” in federal spectrum management, NTIA or IRAC depending on your viewpoint, really be receptive to more sharing in view of FCC decreased resources to identify and resolve quickly any problems? What is the real impact of this bias against sharing?

  • Will other federal agencies that have turned to FCC for timely interference help end up spending more for internal spectrum staffing and equipment than the money saved at FCC? Will they be as effective without the name and legal power of FCC to press compliance by people who cause interference by accident or intentionally?

  • Fewer people in the field in fewer cities also decreases resource to monitor actual spectrum use in order to provide input to the policy process at FCC. While in the past many incumbents did not want such information, most recent studies, including PCAST, have surged more use of spectrum use observations in the policy process.

So far few in the regulatee community have spoke out on this issue. NAB has allegedly issued a “press statement”, but it is nowhere to be found on its voluminous website. The NAB statement is reported to have been:

"This is a potentially troubling development, particularly as the FCC begins encouraging spectrum sharing among different types of communications services. Having a robust interference enforcement presence in FCC field offices is critical to ensuring that consumers receive the services that they expect."

NAB’s endless tweets from @AirWharton have not mentioned the issue to the faithful to date. The broadcasting industry’s key mouthpiece, Broadcasting & Cable, has only mentioned the issue in passing.

CTIA is reported to be deliberating the issue this week. APCP and UTC have been silent although they should know better. Only ARRL, not always the most influential group at FCC, has issued a clear statement of concern.

We urge spectrum users to consider these issues and make their viewpoints heard at FCC on the 8th Floor and at congressional committees.

vox populi, vox dei


As if on queue, a few hours after this was posted NAB’s above mentioned PR man,@AirWharton, tweeted:


The link in the tweet is to http://recode.net/2015/03/17/fccs-hot-mess-of-a-database-may-not-bode-well-for-future-airwaves-sharing/, a blog post about apparent inconsistencies/errors in theFCC’s TV whitespace database that allows unlicensed sharing to TV broadcast spectrum where there are no actual TV signals present. Rather than just snipping at FCC policy, perhaps Mr. Wharton and his colleagues should ask their members whether they feel good about the pending decimation of FCC spectrum enforcement resources?

While the FCC enforcement employees involved will be affected by the change, so will a lot of other spectrum users, both federal and nonfederal, who depend on enforcement of rules and deterrence of illegal spectrum activities.

UPDATE 2 - 3/18/15

Perhaps the above update worked, perhaps something was already in progress but NAB has now ended its near silence on this issue. In an article today in Broadcasting & Cable, the key trade magazine and mouthpiece of the industry, NAB’s Dennis Wharton is quoted:

“This is a potentially troubling development, particularly as the FCC begins encouraging spectrum sharing among different types of communications services," said Dennis Wharton in response to both stories. "Having a robust interference enforcement presence in FCC field offices is critical to ensuring that consumers receive the services that they expect.”

NAB has interference concerns about the way the FCC is setting up the incentive auction repacking framework in which TV stations and wireless companies may be close neighbors on the same of adjacent channels. In addition, the FCC and the National Telecommunications & Information Administration are teaming up on a "Model City" program to test advanced spectrum sharing among different services. The administration has made it clear that advanced spectrum sharing is one way to free up more spectrum from government use. In fact, they just announced an April 15-16 joint workshop on establishing that "Model City."

Thanks to NAB for speaking out. Let’s hope CTIA, APCO, and UTC also recognize that they also have self interests here. Maybe even TIA and CEA too?


Spectrum Policy and Wireless Innovation

From 2/15 issue of

It is often said these days that “technology moves at Internet speed”. One thing that differentiates wireless technology that is the subject of this publication from most other technologies in the field of interest of the IEEE global community is that it is regulated much more than other electrotechnologies. For example if one makes a breakthrough in semiconductor device technology or in computer display technology, one can develop the breakthrough in secrecy until it is time to market the technology. Such technologies need no a priori government approvals, except perhaps for routine approvals related to safety issues or unintentional RF emissions.

This point was made clear to the author in a 1981 article in IEEE Spectrum shortly after he started working on spectrum policy issues:

Pressed by a competitor who was selling (foreign) manufactured sewing machines for the home at lower cost, the Singer Sewing Products Group counter attacked. For four years, designers and development engineers worked in secret at the Singer headquarters in Elizabeth, NJ putting together a sewing machine that would, in one stroke, make existing machines on the market obsolete. What they were aiming for was the world's first electronic sewing machine. … The radical design would enable Singer to eliminate approximately 350 precision- made mechanical parts found in comparable machines on the market. … Success was instantaneous. The original marketing estimate of 300 machines per week jumped to 500 just prior … introduction. In less than a month after its introduction, the estimate was raised to 2000 machines per week.

The article even describes how Singer was able to ensure marketing surprise by using other divisions of the parent firm in the development and to purchase the needed parts to hide the interest of the sewing machine division. Is such market surprise possible in the wireless technology area?

The Apple iPhone is actually an example of “disruptive innovation” in wireless products that was able to achieve marketing surprise comparable to the Singer case. Apple was able to achieve this by an innovative combination of nonspectrum technology e.g. processing, display, and memory, with wireless physical layer technologies that were already approved and or the market. While the initial iPhone needed the routine approvals that Wi-Fi devices, Bluetooth devices, and ordinary cellphones require for inband powers, out-of-band emissions, and RF safety, these were routine approvals posing little risk and could be obtained at the last moment before marketing. No spectrum policy issues necessitated early disclosure of the iPhone’s innovative characteristics.

Unfortunately such marketing surprise is not possible for many wireless technology innovations. The basic pattern for spectrum policy was set after the sinking of the Titanic in 1912. At that time the highest frequency possible for commercial use was less than 1 MHz and radiotelegraphy was the only practical modulation. By 1934 when the US FCC was created, the highest frequency in routine use in the US was 2.5 MHz and its first annual report mentioned “possibility” of VHF use “above 30 megacycles”. In the modulation area, amplitude modulation was then a new alternative to radiotelegraphy.

Given these beginnings and the slow pace of technical innovation in the early days it made sense for the international and national regulators to specific uses for bands and allowed modulations and powers to control potential interference. ITU also adopted a definition of “harmful interference” that made sense with the technologies of the era, although it has some ambiguities with the case of newer technologies and bands with propagation characteristics not anticipated when the definition was drafted .

The ITU has tried to become more reactive by having more frequent world radio conference, for example the 3½ year time gap between WRC-12 and WRC-15. National regulators have tried to minimize regulatory delays of new wireless technologies by increasing the focus of regulations from prescriptive use of specific technology to increasing the focus of regulations to preventing interference to other users. However, this is difficult to do with a regulatory legacy this is a century old as regulators are governmental bodies that do not move at “Internet speed”, but rather time constants that are associated with due process issues according to the form of government in each country. In addition, in some parts of the world there are regional bodies such as CEPT’s European Communications Committee and the European Commission’s Radio Spectrum Policy Group that have a supernational role in spectrum policy.

This is the 150th anniversary of the initial publication of James Clerk Maxwell’s electromagnetic theory that is summarized in the ubiquitous – at least among the readers of this publication – Maxwell’s Equations. It is important to remember that spectrum policy issues are just as important and just as real for new wireless technologies as Maxwell’s Equations are if you are interested in practical actual use of the technologies as opposed to just publishing a theoretical article in a prestigious IEEE publication. However, there is a key difference: Maxwell’s Equations present key physical limits, for example, information can not be transmitter faster than the speed of light. While the constraints of spectrum policy are just as real, they are not physical limits and they evolve just as all governmental policies around the world evolve with time. Thus it is important for wireless technology innovators to be familiar with both current spectrum regulations as well as the national and international processes involved with modifying them to deal with innovative technologies in both current bands and bands that are not presently used.

While many evolving technologies face regulatory dilemmas with respect to their timely implementation in practical use, early identification of such issues in the research and development cycle can lead to early engagement in the spectrum policy arena to minimize delays due to policies that were developed in a different era and which may have become anachronistic.

French Prime Minister Georges Clemenceau famously said “war is too important to be left to generals”. For the wireless technology community, spectrum policy is too important to be left to regulatory specialists. Readers can help themselves and help the whole wireless technology community by understanding national and international spectrum policy issues related to their research and engaging in deliberations in their own country, including national inputs to ITU-R activities.


Delegated Authority @ FCC

Last week, Comm. O’Rielly published a thoughtful essay on delegated authority issues at FCC. Your blogger replied with a complementary viewpoint given below. We agree that a major review of delegated authority is needed at FCC, but we differ in that we believe a carefully designed increase is needed to stop the productivity gap of FCC decisions in both new spectrum technology and timely resolution of “emerging interference issues”. We welcome alternative viewpoints.

I agree that "fixing the delegation process should be a priority for the Commission". As one who worked at FCC for almost 25 years I can see the problems. However, if not done with care to address the real problems the net effect will be to decrease FCC productivity to the detriment of all regulated entities.

Section 5(c) gives the Commission broad authority to delegate. In the early days of the Commission the (then) 7 commissioner
divided themselves into 3 "divisions" that could act independently in the 3 important areas of the time: telephone, telegraph, and broadcasting. This was in an era where radio technology regulation was much simpler. The maximum usable frequency was 2 MHz. The only modulations available were AM and Morse code. There was no APA so adopting rules was much simpler.

All this changed post WWII with a huge explosion of radio technology resulting from wartime R&D coupled with the new APA which made adopting rules more complex. The nearly 70 years of court decisions on the APA have made updating rules even more difficult - a real problem with technical radio rules where a new technology often requires a rule change.

Does today's FCC have the decision productivity to keep up with its Title III technical role today? Probably not.

New wireless technologies are not being addressed in a timely way. Consider the record of RM-11664 (an issue I was not involved in) that is mentioned parenthetically in the Docket 14-177 NOI. This October 2012 proposal for a trade group was neither dismissed nor acted on for over 2 years. Consider the Docket 09-157 NOI on "wireless innovation", launched with great fanfare and now waiting silently to become "stale" and be dismissed with hundreds of other pending proceedings. Mitch Lazarus, an attorney who was known for representing many wireless technology innovators before he retired recently, documented delays of new technology considerations in his Docket 09-157
pro se comments:

The delays in technical spectrum issues affects not only new technologies, they also affect "emerging interference" issues of new types of interference to incumbents that need a new policy decision to resolve. For example:
- Police radar detector interference to VSAT/Docket 01-278: While the NPRM implies that this issue was addressed quickly, in reality the FCC staff was aware of the problem for a decade before action
- Cellular booster to cellular base station interference/Docket 10-4: From the first documented pleas from CTIA for "urgent action" to R&O this issue took almost a decade to resolve.
- The ongoing FM broadcast harmonic interference to 700 MHz LTE base station interference: A rule conflict prevents assigning responsibility to one side or the other and the issue has been pending at the staff level for 2 years. (Is the 8th Floor even aware of it?)

The inability of the Commission to resolve these new policy issue interference cases in a timely way threatens all incumbents and makes a mockery of the often repeated claim that if a decision results in unexpected interference it will be addressed quickly. It also raises doubt about the FCC being the "expert agency in spectrum management". The current FCC backlog in Title III technical issues prevents timely resolution of most issues.

While incentive auctions and corporate mergers are getting attention, many Title III issues dealing with either interference issues needing a rulemaking decision or enabling new technologies that would improve US competitiveness are just gathering dust.

Note that the Commission's UK counterpart, Ofcom, has a "Board" that is both its "main decision making body" and "provides strategic direction for the organisation". The board is composed of individuals with backgrounds comparable to FCC commissioners and are appointed by the UK's political process. But unlike at FCC, the Ofcom Board does not have to approve every obscure decision, they focus more on the big issues and setting policy for the Chief Executive who works for them and controls the bulk of decisions.

Most of us think Ofcom does a better job keeping up with its work load than FCC does. But while Ofcom is staffed with "British civil servants"* who are politically neutral, for decades FCC staff has had significant "noncareer" leadership both in positions formally designated as noncareer and in career positions filled with de facto political appointments. While Bob Pepper loyally served chairmen of both parties in the former Office of Plans and Policy, that type of nonpartisan leadership of a bureau/office has been rare in the past few decades. This in turn leads to a leadership "blood bath" of senior managers with a change in the White House and sometimes even a change in chairman under the same President. This inevitably results in Commission staffers having mixed loyalty to the agency and the chairman. The agency should try to get more nonpartisan "Bob Peppers" in senior management slots in the bureaus/offices to give the staff more stability.

The problems of timeliness of decisions might have gotten more attention if the FCC's Inspector General devoted more resources to his role of independent review of the Commission's operations rather than getting totally distracted by his role in USF fraud cases. While the IG is not appointed by the President and confirmed by the Senate like cabinet level IGs, the statute is quite clear that his responsibilities are the same. Other IGs give feedback on the "big picture" in their agency, e.g. NRC IG report on FOIA problems at NRC, but FCC's IG doesn't. While the current IG is not a crony of the chairman like all of his predecessors were, the pattern of not looking at big problems in FCC was well established before he arrived. A credible and independent FCC IG would make FCC more credible!

Under the terms of Section 5(c) of the Act, the Commission could act more like Ofcom if it chose to. Perhaps it would need more resources, but I suspect an objective analysis of the economic cost of present delays in both new technology deliberations and emerging interference resolution time would show that new resources to improve decision times in these matters would be cost-effective for the economy.

The Commission could thus focus more on defining overall policies and strategies to give guidance to its staff as well as reserving for itself the most major issues. Any staff decision could be appealed, as now, under the terms of Section 5(c)(4).

The delegation of authority issue should be reviewed, but a major focus should be on BOTH improving productivity and throughput of the agency as well as improving accountability of the staff to the will and authority of the commissioners. SOME decisions really need the input and "hands on: vote of presidential appointees. Many do not and the present processes slow resolution of Title III technical issues to the detriment of all involved. It is important to have better process to decide which issues got to a vote on the 8th Floor and which can be resolved faster through delegated authority. It is also important that the staff have better guidance from the Commission or goals and strategies to be used in resolving issues on delegated authority. But routing everything through the 8th Floor is likely to slow key Title III technical decisions even more.

* Ofcom is actually not a normal UK agency and their staff are not legally the same as mainstream civil servants, but they are apolitical.

Mobile Future Filing Highlights FCC's Real Throughput Limit & Its Impact

A filing by Mobile Future in Docket 14-177, dealing with new mobile spectrum above 24 GHz, highlights an issue rarely acknowledged in DC policy circles: FCC, as presently structured and operated, does not have the decision throughput capacity consistent with its roles in the telecom industry, our society, and our economy. Readers may recall that we have previously criticized some statements of Mobile Future as being overly simplistic. While we agree with their conclusion that FCC doesn’t have the capacity to deal well with both new lower bands spectrum for the cellular establishment and new technology, we strongly disagree with their conclusion that new technology should be put on hold which also violates the FCC statute: Sections 7 and 303(g). A much better solution would be for FCC to finally recognize its throughput shortfall, seek to resolve it, and not focus so much on “rearranging deck chairs” to maintain the appearance that it is keeping up

Who is Mobile Future? Here is their own description:

Mobile Future is an association of cutting-edge technology and communications companies and a diverse group of non-profit organizations, working to support an environment which encourages investment and innovation in the dynamic wireless sector. Our mission is to help inform and educate the public and key decision makers in business and government on the broad range of wireless innovations that are transforming our society and the nation’s economy.

The list of members includes big players such as AT&T, Verizon, Alcatel-Lucent, Cisco, Ericsson, Samsung, and Qualcomm as well as some obscure non-profits, e.g. Foundation for Advancing Alcohol responsibility and Hispanic Chamber of Commerce of Minnesota. Your blogger is actually a volunteer for one of the nonprofit that is an MF member and has absolutely no idea why this organization is interested in mobile spectrum and involved in this lobbying effort except if one of its board members is with the same PR firm MF uses.

MF describes their comments on their website as “Today, Mobile Future submitted comments to the FCC regarding the potential for providing mobile service using spectrum bands above 24 GHz. As consumer demand for wireless continues to skyrocket, the mobile community is exploring ways to unlock additional spectrum resources.”


Delegation of Authority @FCC


Last week, the FCC home page had the surprising headline “Comms. Pai and O'Rielly Joint Stmt on Abuse of Delegated Authority” which was linked to a document entitled “Joint Statement of Commissioners Ajit Pai and Michael O’Rielly on the Abandonment of Consensus-Based Decision-Making at the FCC” - note the tone of the linked document vs. the headline, although the headline might have had a Twitter-like character limit. For those who live way way outside the Beltway, Commissioners Pai and O’Rielly are the 2 Republican commissioners and both are former Senate staffers, so this might be related in part to the more generally partisan feuding/dysfunction here. The 3 other commissioners are Democrats and are also well connected with their party. Professors of telecommunications issues, either policy or technical, have not gotten get surprise phone calls from the White House in the past few decades to discuss possible FCC appointments. As in most regulatory agencies for the past 2 decades, good political connections are essential for such an appointment!

The commissioners are expressing outrage over the apparent release of 2 documents without an opportunity for them to comment and vote on them. The documents are:

Getting back to basics, Section 5(c) of the Communications Act provides:

Delegation of functions; exceptions to initial orders; force, effect and enforcement of orders; administrative and judicial review; qualifications and compensation of delegates; assignment of cases; separation of review and investigative or prosecuting functions; secretary; seal

(1) When necessary to the proper functioning of the Commission and the prompt and orderly conduct of its business, the Commission may, by published rule or by order, delegate any of its functions (except functions granted to the Commission by this paragraph and by paragraphs (4), (5), and (6) of this subsection and except any action referred to in sections 204 (a)(2), 208 (b), and 405 (b) of this title) to a panel of commissioners, an individual commissioner, an employee board, or an individual employee, including functions with respect to hearing, determining, ordering, certifying, reporting, or otherwise acting as to any work, business, or matter; except that in delegating review functions to employees in cases of adjudication (as defined in section 551 of title 5), the delegation in any such case may be made only to an employee board consisting of two or more employees referred to in paragraph (8) of this subsection. Any such rule or order may be adopted, amended, or rescinded only by a vote of a majority of the members of the Commission then holding office. Except for cases involving the authorization of service in the instructional television fixed service, or as otherwise provided in this chapter, nothing in this paragraph shall authorize the Commission to provide for the conduct, by any person or persons other than persons referred to in paragraph (2) or (3) of section 556 (b) of title 5, of any hearing to which such section applies.

(3) Any order, decision, report, or action made or taken pursuant to any such delegation, unless reviewed as provided in paragraph (4) of this subsection, shall have the same force and effect, and shall be made, evidenced, and enforced in the same manner, as orders, decisions, reports, or other actions of the Commission.
(4) Any person aggrieved by any such order, decision, report or action may file an application for review by the Commission within such time and in such manner as the Commission shall prescribe, and every such application shall be passed upon by the Commission. The Commission, on its own initiative, may review in whole or in part, at such time and in such manner as it shall determine, any order, decision, report, or action made or taken pursuant to any delegation under paragraph (1) of this subsection....

Was the release of the 2 documents by Chief WTB consistent with his delegated authority per Section 0.331 of the Commission’s Rules? We will leave that for others to judge.

However, the worst possible outcome of this kerfuffle would be a general tightening up of all delegated authority. Why? In the opinion of your blogger FCC spectrum policy productivity is grossly mismatched with the problems at hand and the gap is growing. While megaproblems like the incentive auction (and net neutrality and the 3 big pending corporate mergers) are getting reasonable attention, lesser problems that need 8th Floor attention and action under current arrangements are not. These deal with both innovative wireless technologies and interference to existing wireless systems, e.g. the police radar detector/VSAT issue - 15 years, the ongoing cellular booster/base station problem - 10 years and counting, and the FM/700 MHz LTE problem - not even acknowledged yet. All of these interference issues required rule changes to resolve and 8th Floor input was appropriate and needed. Many new technologies issues are also in the slow lane. The 24+ GHz mobile NOI mentions in passing an FWCC 5/9/12 petition that lingered and is now “stale”. Why is it stale? FCC indifference and inaction!

In the first of the controversial documents listed above, T-Mo applied for a declaratory ruling on 5/9/14 and received it on 12/18/14. Wow! What happened with the IEEE-USA similar request for a declaratory ruling filed on 7/1/13? It only deals with new technology in virgin bands and has never been opposed by anyone, when will it get resolved? While the Battelle petition for use of 102-109.5 GHz for fixed systems filed almost a year ago? They did not ask for Sec. 7 treatment and FCC has previously said you have to ask, but it should not take much analysis to show this is virgin spectrum and there is no threat to incumbents, so maybe int he spirit of the law timely action would be a good idea? How about the soon to retire Mitch Lazarus’ comments in the Wireless Innovation NOI - no FCC action in 4 years on the whole NOI - documenting the problems that innovators face in getting any action from FCC?

These backlogs in both new technology issues and emerging interference resolution show the real productivity shortfall at FCC as presently operating. I really doubt that FCC can increase its productivity to match the job at hand by “rearranging deck chairs”. In my comments to The House Energy and Commerce Committee earlier this year I proposed carefully increasing the delegations of authority under Part 0. This is not necessarily inconsistent with the concerns of Commissioners Pai and O’Rielly. I suggest that the 8th Floor try to sort pending classes of items into categories according to how much attention from presidential appointees and their staffs they need. Thus for nonpolitical items, the commissioners might function more like the Ofcom Board, setting policies for the staff to implement on a case by case basis on delegated authority subject to review. For more politically sensitive issues the commissioners could have primary jurisdiction.

The key issue is how to improve productivity for all the issues before FCC so that it matches the problems at hand. This issue is not a new one and it has been created over the past decade or 2. But it is very serious now and a simply restricting of delegated authority across the board will make things even worse.


So When are the Comments on this NPRM Due?


An interesting question heard both inside and outside FCC is “when are comments due to NPRM x?” When NPRMs and similar documents that result in comments are released they usually are written as shown above with a date relative to Federal Register (FR) publication. (The Net Neutrality NPRM was a notable exception and had a clear due date on the version released by FCC.) The reason for this relative date is due to uncertainty in FR publication date which can be large compared to the comment period in many proceedings. Your blogger believes that much of variable delays in FR publication is due to back office problems at FCC in work groups of career civil servants that have low visibility and low pay grades but perform key ministerial functions in the final release of FCC documents, oddly called the “BARF process”, and in the final formatting of the text for transmission to the folks at the FR. (When documents contain tables and other unusual formatting there are usually problems getting them in the specific forma acceptable to the FR. Incorporating nonfederal standard by reference, e.g. as in §15.31(a)(3), also adds uncertainty to the final approval process due to its complexity although it is generally desirable.)

So how do you find out when things are actually due? Large law firms have paralegals that scan the FR every day for FCC items and update internal data basis for their lawyers who then inform their clients. Important items make the news in expensive trade publications such as TR Daily. But what about the rest of us?

The bureaucratic answer is to search for the published items in either the FR site or the newer Regulations.gov, “Your Voice in Federal Decision-Making”.

(Regulations,gov is part the eRulemaking Program, established in October 200as a cross-agency E-Gov initiative under Section 206 of the 2002 E-Government Act (H.R. 2458/S. 803) and is based within the U.S. Environmental Protection Agency. The eRulemaking Management Office (PMO) leads the eRulemaking Program and is responsible for the development and implementation of the public facing website, Regulations.gov. FCC is not a “partner agency” in the eRulemaking Program because it required shared funding. FCC is classified as a “Nonparticipating Agenciesin the program and its is not fully integrated - again a nod to FCC’s perpetual budget problems. The Office of the Federal Register (OFR) of the National Archives and Records Administration (NARA), and the U.S. Government Printing Office (GPO) jointly administer the FederalRegister.gov website.)

While working at FCC, your blogger tried and experiment to address this issue. The attempt is shown below and actually still lingers with old data on the FCC’s vast disorganized website:

Circa 2006 Experiment in Making Docket Information More User Friendly (Click to expand size)

This table with its links to both EDOCS and ECFS as well as comment date data is one simple, user friendly way to present data. Note the “title” of each proceeding is not the official title on the caption of the coverage of the FCC document. The official caption is often a cumbersome name or one assigned early in the drafting process before the scope of the proceeding was firmly established. The tile is a plain English description of what the docket is actually about, like “net neutrality”.

So why can’t FCC give us a simple way to find to when comments are actually due in its proceedings?


Comm. Rosenworcel on Hiring FCC Engineers

At a GSMA conference in Atlanta on 9/22, FCC Comm. Jessica Rosenworcel spoke of several spectrum topics of interest to the readers of this blog.

She made 5 predictions:

  1. Clearing more federal spectrum will be slow going unless we provide federal authorities with incentives to relocate.
  2. We will need to look high and look low to find spectrum for next generation wireless networks.
  3. Spectrum use will become more efficient if we challenge ourselves.
  4. We need more Wi-Fi.
  5. The government will do a better job of fostering innovation with an infusion of young engineers.

Readers will recall that the issue of FCC hiring of engineers and the difference between lawyer recruiting and engineering recruiting has been a recurring topic here. So it was gratifying to hear that the commissioner has very similar thoughts on engineering hiring at FCC as your blogger. We hope that others indicate to the 8th Floor support for Comm. Rosenworcel’s viewpoints for the benefits of all regulated industries. Of course if you prefer that technical proceedings be dominated by lawyers and drag on forever, feel free to support the status quo.

Engineers are deployed throughout the government. At the FCC we have more than 250 of them. They are an integral part of our team, and their input is absolutely vital on spectrum policy.
But I think that across government it is time for a fresh infusion in our engineering ranks. Think of it as a new Americorps, an engineering corps that can modernize the work of government and open opportunities for innovation.
That’s big. So let me start closer to home. Over the past several years, the FCC has been able to recruit talented, young legal professionals through an honors attorney program. In fact, one of the alumni of this program—David Goldman—works in my office and is just the kind of professional we want to recruit to public service.
I think the program that brought David to the FCC needs an engineering counterpart. So I think we should create an honors program for young engineers. It would bring new vigor to the ranks of our technical experts. By mixing young men—and women—with experienced engineers already on staff, the FCC could be better prepared to face the challenges of next-generation communications networks.


Sen. Fischer Introduces S. 2817 to Urge FCC Compliance with Section 7


Sen. Fischer
Last week Sen. Deb Fischer introduced S. 2817 to address the longstanding FCC avoidance of the provisions of Section 7 of the Communications Act, a recurring topic in this blog.

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?


VA & FCC: Similarities?
Is the Real Problem Inadequate Throughput Capacity in Both?


Clearly there has been a lot of news recently about the VA and it poor treatment of veterans who have served our country. But no one has said the VA medical staff was sitting by idly as patients were denied treatment or waited excessive times, perhaps to die before treatment. Your blogger believes that while the medical staff was treating patients as fast as they could, the administrative staff at VA covered up a shortfall in capacity by “cooking the books” about waiting times, even if some patients died from delayed treatment.

But is the FCC that different? Consider the recent CG Docket 14-97, “CGB Seeks Comment On Termination of Certain Proceedings as Dormant” in which FCC seeks to close out a 78 page list of proceedings, the first page of which is shown below:


FCC has a glut of open dockets, in February 2011 it estimated there were “more than three thousand open dockets”. While some of these are inevitable, some result from the old “justice delayed, justice denied” metaphor. Readers may recall that after 5 years FCC disposed of the M2Z petition for use of the then vacant AWS-3 band with a phone call saying they were too busy to take formal action. (With later Congressional mandate that federal users had to move out of the lower part of AWS-3, both parts of AWS-3 are now slated for auction).

In Docket 10-44 FCC decided to deal with this glut of open dockets in the following way

“(W)e accordingly amend Section 0.141of our organizational rules to delegate authority to the Chief of the CGB to review allopen dockets periodically. When the CGB Chief identifies an open docket that appears to be a candidate for termination, the CGB Chief will consult with the Commission bureau or office with responsibility for that docket and, with the concurrence of the relevant bureau or office, will take the appropriate action to close the docket after public notice (as discussed in the nextparagraph). Proceedings that are candidates for termination might include dockets in which no further action is required or contemplated and dockets in which no pleadings or other documents have been filed for several years. (Emphasis added)

FCC does not say how many proceedings are on this new list, but I estimate 385 dockets. This follows on a November 1, 2011 order that terminated 999 dockets and a September 27,2012 order that terminated an unspecified number of dockets that I estimate to be about 330. This is a total of 1714 dockets closed as “dormant” in 3 years. Is this a cause for celebration or should someone be asking why are there so many dormant dockets?

Now some of these are truly procedural problems, some are mergers that are now moot because of delays and some are enforcement issues where the violator is no longer in business. But some of these dockets are requests for technical changes in FCC rules that FCC action has delayed to the point where the proponents have just given up and the issue has “died”. We note that the Wireless Innovation NOI, was launched with great fanfare by FCC in 2009 saying it

“seeks to identify concrete steps the Commission can take to support and encourage further innovation and investment in the wireless marketplace. This NOI also seeks to better understand the factors that encourage innovation and investment throughout this area.”

However, by many standards this proceeding is dormant due to FCC inattention. Fortunately, the eccentric serial filer/process abuser Maneesh Pangasa routinely files odd unrelated documents in this docket (145 to date!). Your blogger cross filed in this docket a millimeterwave filing on 02/11/2014. But if only filings by Fortune 500 corporations or their trade associations count, then the last filing was from CTIA on 07/29/2010. So is the Wireless Innovation NOI now dormant and subject to termination by Chief CGB under delegated authority?

Is FCC doing something to decrease the number of dockets that become dormant or will it continue to let dormancy be a routine way of avoiding making decisions?

Are some of FCC’s termination of dormant dockets analogous to VA’s “cooking the books” on waiting times to give the appearance of well functioning organization? While FCC has now created a termination mechanism, it has not done anything to make sure proceedings do not become dormant, perhaps by acting on them before they become dormant! As I indicated in my comments to the House Energy & Commerce Committee I suspect that the fundamental issue here is that FCC as presently structured and operating just does not have the capacity to do its spectrum job. This may not need new legislation to solve, but it at least needs recognition as an real problem, not one swept under the carpet with termination of 100s of proceedings.

When I joined FCC in the Carter Administration, Chmn. Ferris had a phrase “a government worthy of its people” as a test of possible FCC actions. It is still a good phrase as a goal!


Lest you think we are too hard on FCC timeliness, surf over to this CommLawBlog entry on recent revisions to the FCC’s mundane, but important for safety, Antenna Structure Regulations. Peter Tannenwald writes:

If you’ve got one or more tower structures, you may be in luck. The FCC has at long last taken a weed-whacker to Part 17 of its rules, a long-overgrown regulatory briar patch governing the construction, painting and lighting of antenna structures. While the substantive requirements remain largely intact, a number of procedural changes should make life at least a little easier for tower owners as well as the Commission’s Staff. At a minimum, the changes should make the rules easier for real people to grasp.

The only real question here: What took so long? (Emphasis added)

This even affects the cellular industry as well as the broadcasters, but I suspect both have to ration their urgings to FCC to get things done in a timely way. Mr. Tannenwald describes this effort’s timing as follows “Nearly a decade in the making, FCC tower rules brought into the 21st Century”. This is not a docket where presidential appointees confirmed by the Senate add much value, yet it has to go through the same 8th Floor bottleneck.



This week is the 80th anniversary of the Communications Act of 1934.

According to the FCC’s first annual report in 1935, here are the key dates
  • June 19, 1934 - Passage of the Communications Act

  • July 11, 1934 - Swearing in of the first commissioners (7 in number until the 1980s)

  • July 17, 1934 - First commission meeting
The FCC was formed by a merger of the Federal Radio Commission and the telephone and telegraph components of the Interstate Commerce Commission, 2 very different agencies. As the following section of your blogger’s recent comments to the House Energy and Commerce Committee’s NOI-like inquiry on spectrum policy says, the 1934 7 commissioner FCC had a lot simpler job than today’s FCC and worked in a legal environment where it was ease to get things done.

When FCC was created in 1934 the world was much simpler than today and the FCC had a somewhat different structure than today although it was not reflected in the statute. Like the Interstate Commerce Commission that was the predecessor to the FCC’s Title II jurisdiction, the initial 7 commissioner FCC divided itself into 3 “divisions” of 3 commissioners at creation in 1934 – dealing with: telephone, telegraph, and radio. The original intent was that the whole commission would meet en banc for issues affecting multiple industries or key decisions. Note that this was prior to the 1946 Administrative Procedures Act (APA) when the procedures for adopting and enforcing rules lacked today’s checks and balances, but were also much faster. Note also that prior to World War II the maximum frequency of practical use and the number of technological options for radio technology were very limited. While the 1934 FCC Annual Report mentioned in passing the “possibility” of VHF use “above 30 megacycles” or what would be called 30 MHz today, the highest frequency mentioned in actual routine use was 2.5 MHz.

At the same time of the arrival of the APA in 1946 came the postwar rapid explosion of available spectrum for practical use, many new technologies for using that spectrum, and an ever expanding categories of uses that have benefited both our economy and our society. But is the FCC, as presently structured able to deal with this workload efficiently? Experience shows that technical spectrum policy decisions are just not keeping up to the pace of today’s complex industry. While major players are able to demand timely action on some issues, e.g. DTV transition and incentive auctions, even these major players have to choose between which of their actions will get attention in a sort of informal rationing system. Entrepreneurial firms that are the hot bed of innovation in other technical areas just do not have access to much of the FCC’s limited decision-making throughput in the spectrum policy area and as a result get turnaround on technical policy issues that discourages investment in wireless technology requiring nonroutine FCC approvals. Even major incumbents are not getting a timely response of new unanticipated types of interference to their systems that need rulemaking action to resolve.

Your blogger has fundamental doubts whether today’s FCC as presently structured has the decision making throughput to do its basic spectrum management functions in timely way while faced with simultaneous issues such as incentive auction, net neutrality, and several megamergers. We believe that if the Commission will recognize this shortfall that it has the flexibility under Section 5(c) of the original Communications Act to increase its throughput by delegating more technocratic issues to the staff as its UK counterpart Ofcom does under the policy guidance of its “Board” which is analogous to the FCC commissioners. The Ofcom Board delegates most actions to its senior staff while maintaining policy control.

(We note that in Canada the politically sensitive issues of most interest to the 8th Floor are handled in the FCC-like Canadian Radio-television and Telecommunications Commission, while most technocratic issues are handled by the less politicized Spectrum, Information Technologies and Telecommunications sector of Industry Canada. While a Canada-like dichotomy would require legislation, much of the UK Ofcom functionality and improved productivity could be achieved under the terms of Section 5(c).)

We hope that FCC and the spectrum policy community will use this anniversary to contemplate whether the presently structured FCC is adequately keeping up to the task at hand in spectrum policy or whether the commissioners should use their Section 5 power to delegate more functions that they do not personally add value to.

Original FCC seal in 1934


"Back Office" Problems at FCC and the Net Neutrality Rulemaking


Your blogger was preparing for a presentation this week to a group of engineering interns in DC on “Admin Law for Techies” and was going to use the regulations.gov website to show how to find NPRMs from various agencies and watch the rulemaking process. He decided to use the net neutrality rulemaking as an example since it is probably the most visible rulemaking on a technical issue in the whole government at the moment. Going to the government-wide regulations.gov website resulted in the screen shown above. Why?

A little snooping showed the root cause of the problem is a “back office problem” at FCC. This is a problem that is been ongoing under several chairmen from
both parties. A lot of attention is spent on Commission open meetings (held at the statutory minimum of 1/month in recent decades - there used to be 1/week). Bureau chiefs and senior managers get a lot of attention. But the junior civil career servants who perform the key functions of final polishing of FCC decisions and getting them out the door so they can go into effect continue to be understaffed, overworked and underappreciated.

So it is not surprising that a key FCC NPRM like
net neutrality languishes in publishing limbo. Does it matter? Well, normally FCC NPRMs have a comment period tied to Federal Register (FR) publication date. The net neutrality NPRM unusually has a comment date on the FCC-released version of July 15. What happens if it does not make the Federal Register before then? What happens if it is only published a few days before 7/15? Might a court rule that commenting period was inadequate since Federal Register publication is the formal announcement? A senior FCC manager I discussed this with insisted it was of no significance.

However, a similar problem happened last year with the experimental license reform rulemaking,
Docket 10-236. As shown below where FCC boasted about making “significant changes to its Part 5 Experimental Radio Service (ERS) by creating a more flexible framework to support the rapid pace of technological innovation and to further implement the recommendations of the Commission’s March 2010 National Broadband Plan”:


While the text of the decision was released the same day it was adopted - a sign of a high priority action - effectiveness dates of all new federal rules (with a few narrow exception) are tied to FR publication. This decision was not published in the FR until April 29, 2013, making the effectiveness date of the new rules the end of May. It is unclear how much of this 88 day delay was last minute edits and 8th Floor review of them or coordinating with the Federal Register details of the publication. However, it is reasonable to assume that the “back office” problem was a key contributor to the delay and the implementation of the new rules.

To make matters worse, after the press release’s selfcongratulatory tone on the new rules, a key aspect of the new rules involving “program experimental licenses” is still not in effect almost 16 months after the above press release because FCC has lacked the funding to update its online filing system for experimental licenses - a “state of the art” Clinton Administration design that is hated by all those who use it - both inside and outside FCC.

So it is nice to do grand things like net neutrality and experimental license system changes, but resources are needed for the unglamorous side of FCC to make such glamorous actions effective. We suspect that the root of this is the longstanding over politicization of the FCC staff with too many senior managers coming and going with 8th Floor changes. The career staffers who deal with ministerial problems of keeping rule makings moving and implementing them are not getting the attention and resources needed to do their jobs. As we have discussed previously in the context of awards at FCC, they are also not getting the recognition from senior leadership and the public.


Net Neutrality NPRM:
Usual Problems in FCC Drafting Persist

Net neutrality is certainly getting a lot of attention these days. As of this writing, Google shows 105,000,000 hits on the topics! It is a concept your blogger strongly supports, but the focus of this blog is spectrum policy so we won’t burden you with our views on this issue. However, we have been making the point for awhile that FCC NOIs and NPRMs are poorly written making the process very inefficient for both FCC and commenting parties.

Readers may recall this table from a 4/30/14 post:

The questions in the net neutrality NPRM start in para 2 with

We start with a fundamental question: What is the right public policy to ensure that the Internet remains open?

Then there is a pause until we get top para. 35 with its 3 questions:

In light of the important role that the Internet now plays as a vehicle for communication of all sorts—both for consumers and content providers—how should we consider the potential impact on social and personal expression of an Internet whose openness was not protected? For example, would there be particular impacts on political speech, on the ability of consumers to use the Internet to express themselves, or on the Internet’s role as a “marketplace of ideas” that serves the interests of democracy in general, serving even the interests of those Americans who listen even if they do not actively speak? Are there other ways in which we should understand free-expression interests and whether they may be impaired by a lack of openness?

But then the rate of questions rises with crescendo, although scattered throughout the NPRM. Pages 17, 18, 54, and 61 have 9 questions of the “?” form and pages 28 and 32 have 10 such questions!

So, you may ask, how many total questions are there in the net neutrality NPRM? Using MS Word to search the document without the concurring/dissenting statements we find 203 question marks. 10 of these are other than questions - mostly question marks in URLs. This gives 193 questions ending in question marks. There are 147 questions without question marks that include the words “seek comments”.

Interestingly most of these “seek comments” questions are on pages without any “?” questions, e.g. p. 37 with 9 “seek comment” questions and only one “?” question. One wonders if one group of writers prefers “?” and the other group prefers “seek comment” and they wrote different parts of the NPRM. However, p. 32 has 10 “seek comment” questions and another 10 “?” questions making it the most inquisitive page of the whole NPRM!

Comm. Pai asks 3 additional questions in his statement and Comm. O’Rielly asks 2 more in his. (Comm. Clyburn has several questions, but we did not include them in the count since they all appeared to be rhetorical -- although others might disagree.)

Note that there is even a question contained in a footnote (fn. 201) - a recurring issue in FCC NOIs and NPRMS that most would consider poor writing practice:


So what then is the grand count of question in this critical item that is supposed to be resolved in 6 months? Your blogger’s count is given below:


Net neutrality is a key issue and a major proceeding for the Commission. The poor organization of these questions, let alone the lack of numbering like the FCC’s UK and Canadian counterparts use, will greatly complicate the deliberations for both the commenters and the poor FCC staff that must read and summarize the comments.

Isn’t it time to start working on a better approach to formatting FCC NOIs and NPRMs in order to improve the timeliness of FCC deliberations?


How Many Questions in FCC NOIs/NPRM?
"Let me count the ways"

How do I love thee? Let me count the ways.
I love thee to the depth and breadth and height
My soul can reach, when feeling out of sight
For the ends of being and ideal grace.
I love thee to the level of every day's
Most quiet need, by sun and candle-light.
I love thee freely, as men strive for right.
I love thee purely, as they turn from praise.
I love thee with the passion put to use
In my old griefs, and with my childhood's faith.
I love thee with a love I seemed to lose
With my lost saints. I love thee with the breath,
Smiles, tears, of all my life; and, if God choose,
I shall but love thee better after death.

Elizabeth Barrett Browning - Sonnet 43

In February we talked here about the FCC Process Reform Report and its many helpful proposals for FCC reform. We filed comments at FCC on some of these issues. The final report based on comments received is still pending.

In our comments we discussed, among other things, Recommendation 3.12: “Consider Listing Specific Questions with Rebuttable Presumptions at the End of an NPRM”. We said that FCC NOIs and NPRMs have an excessive number of poorly organized comments and showed how FCC’s UK and Canadian counterparts organized the questions in their counterparts to NOIs and MPRMs much better.

Segment of Industry Canada Consultation

For example, at left is a segment from a recent Industry Canada “consultation”. After each section the questions are set off in a box in bold type and are numbered. There are a total of 8 questions in this IC document.

In an ex parte filing this week we expanded on our original comments on the Process reform Report, focusing on the issue of questions in NOIs and NPRMs. Here is a key table from the filing:


While the 2 agenda items analyzed were issued under different FCC leadership, they were each high visibility and high priority items when released. The excessive number of questions is not the only issue. In both documents questions are in all sorts of places and are badly organized. Based on my experience a decade ago in the “sausage factory”, I suspect that questions grow during the drafting process as various staffers and 8th Floor offices look at drafts. The easiest way to get someone to sign off is to add another question to show you are concerned and listening. Thus questions grow out of control with no central accountability for the end product.

This tangled question structure then impacts everyone involved:

  • Commenters have to spend time sorting the questions and figuring which to respond to. After all can you really respond to 200+ questions in the allotted time. Perhaps some commenters group the questions one way and others group them a different way.
  • In the reply comment phase, the problem gets worse as one has to sort through how various other parties dealt with the mass of tangled questions.
  • Finally the poor FCC staff that does comment summaries has to find a way to organize this mess. This takes extra time and slows down process. Indeed even though Docket 09-157 was a high priority processing when adopted, it has had no further action in nearly 5 years!

Readers who are concerned with the mess resulting from tangled webs of questions in FCC NOIs/NPRMs might wish to support this issue in statements in the Process Reform proceeding.

Better to light a candle than curse the darkness


Brooking's Hamilton Project on Spectrum

On March 24th, Brooking’s Hamilton Project hosted a forum and released a new policy proposal addressing the key challenges of regulating wireless spectrum during a time of rapid change and increasing demand. Former U.S. Treasury Secretary Roger Altman opened the forum, and Federal Communications Commission Chairman Thomas Wheeler gave keynote remarks.

Brookings summarized Wheeler as follows:

This week, he came to Brookings for a Hamilton Project forum to discuss several of his ideas for moving America forward. Foremost among the items is the need to free up spectrum for wireless applications. Speaking about the issue, the Chairman praised the emergence of what he called the fourth network revolution for wireless connectivity of computer devices (the successor wave to the printing press, railroad, and telegraph).

He predicted that the upcoming incentive auction and sharing technology would “revolutionize the way we manage our air waves” and promote economic growth and innovation in education, health care, energy, and transportation. At this point, he said the task was to remove unnecessary obstacles that limit advances and ensure the availability of ingredients to modern networks, such as wireless spectrum.

The Hamilton Project released a new proposal by authors Pierre de Vries and Phil Weiser for improving the allocation and adjudication of wireless spectrum by redesigning regulations and simplifying the trade of spectrum resources through the use of market forces. The proposal describes four policy challenges hampering the economic potential of wireless spectrum:
  • Inefficient allocation of spectrum operating rights
  • Underinvestment in high-quality signal transmission and reception technology.
  • Reconciliation of government spectrum uses and private-sector demand.
  • Moving beyond “Command-and-Control” to Licensed and Unlicensed Use of Spectrum.

The proposal concludes:

Economists have long argued for a market-based approach to allocating spectrum, in the spirit of the argument made by Nobel laureate Ronald Coase in his seminal 1959 paper. Coase’s solution to the allocation problem was to create sufficient property rights in spectrum so that they could be sold to private owners who would then be free to buy, sell and lease spectrum rights. Prices would be set by the market, in accordance with the demand and supply for spectrum, and in particular, for more or less valuable frequencies.

The FCC has gradually allocated more spectrum rights for flexible use; since 1993 it has been using auctions toaward most new spectrum licenses. Still, there is much scope for continued improvements in the allocation and administration of spectrum policy.

Your blogger agrees in nearly all of the above. However, he would add that there are serious doubts whether FCC and NTIA, as currently structured, have the resources and “decision making throughput” to make real progress in these areas.

FCC is so paralyzed now with incentive auctions issues that it is questionable if they have time to look at such fundamental questions as proposed here.

FCC Process Reform Report

Your blogger filed comments today on the FCC’s 2/14/14 Process Reform Report, designated now as Docket 14-25.

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!)

FM Broadcast -> 700 MHz LTE Interference Problem Reveals Basic FCC Spectrum Policy Problems

From Scott Baxter’s AFCCE presentation 10/13

On June 25, 2013 our friends at CommLawBlog published a surprising post that has not received much attention. It was entitled “Harmonic Convergence? FM Interference to 700 MHz LTE Service” and was authored by Peter Tannenwald.

The post starts:

The introduction of different species into an established ecosystem tends to be a dicey proposition. Almost invariably, co-habitation requires the sharing of scarce resources. And more often than not, the different species approach the whole sharing thing in different, not entirely compatible, ways. The result: occasional dissatisfactions and frustrations – leading to occasional inter-species frictions and fisticuffs.

Take the RF spectrum ecosystem, for example.

Most inhabitants of the spectrum have historically figured out ways to coexist in relative peace (at least for the most part) – thanks largely to the fact that the potential impact of one service on another has been taken into account in the frequency allocation process. But as the demand for spectrum increases, and every little niche is filled up, it is becoming more difficult to avoid inter-service conflicts. And sure enough, the introduction of a recent new species – 700 MHz wireless systems using LTE equipment – seems to be causing some unexpected problems.

The post goes on to describe an emerging problem of interference from FM broadcast stations to 700 MHz cellular base stations nearby. A search of the FCC website on this issue found no public documents on the FCC’s voluminous website dealing with this issue. Fortunately Google found several non-FCC documents published after Mr. Tannenwald’s breaking post.

Barry Mishkind at The Broadcasters' Desktop Resource (BDR) published a report on June 28, 2013 that is linked to a detailed technical discussion of the issue. The public trail of this event appears to begin on 6/19/13 with the issuance of a Notice of Violation* by the FCC’s Enforcement Bureau’s New York District Office to WKZE-FM in Salisbury CT. The NOV alleges that their signal on 98.1 MHz had an 8th harmonic at 784.8 MHz that was causing interference to a VZW base station located approximately 500 feet away. The NOV cited 73.317(a):

(a) FM broadcast stations employing transmitters authorized after January 1, 1960, must maintain the bandwidth occupied by their emissions in accordance with the specification detailed below. FM broadcast stations employing transmitters installed or type accepted before January 1, 1960, must achieve the highest degree of compliance with these specifications practicable with their existing equipment. In either case, should harmful interference to other authorized stations occur, the licensee shall correct the problem promptly or cease operation. (Emphasis added.)

A major issue here is whether the above clear rule take precedent over the Commission’s general “first in time, first in right philosophy”** that is stated neither in the law nor as a general codified rule. We will leave it to our legal friends to parse case law on this issue.

Clearly the NAB crowd and the CTIA crowd have a major difference in viewpoint here. NAB’s past quixotic attempts to require all cell phones to have FM receivers certainly is not helping these industry giants’ mutual relationship, especially at this time of incentive auction focus by all.

We have not seen any public statements from the cellular community on this issue, so Scott Baxter’s comprehensive 10/13 presentation to the Association of Federal Communications Consulting Engineers, a mainly broadcast engineering group, is the most definitive discussion of the technical issue on the public record. (Scott’s usual clients appear to be mostly wireless firms.)

It is unclear what the technical problem here really is, although there seems no controversy that the FM transmitter in question meets the numeric out of band emission limits of § 73.317(d):

(d) Any emission appearing on a frequency removed from the carrier by more than 600 kHz must be attenuated at least 43 + 10 Log10 (Power, in watts) dB below the level of the unmodulated carrier, or 80 dB, whichever is the lesser attenuation.

Several possible hypotheses:
  1. This out of band emission level of § 73.317(d) is not adequate to protect 700 MHz LTE base stations x meters away.
  2. The usual measurement procedure for determining this emission limit may focus too much on the power that goes to the antenna and not enough on incidental leakage from the transmitter cabinets that might have inadequate shielding in some models. (This is consistent with observations in the Baxter briefing.)
  3. The emission limit is adequate, but loose metal connections in or near the cellular antenna structure generate harmonics from the strong FM signal a few hundred feet away just as intermodulation products are generated in strong electromagnetic fields when there is a dense concentration of transmitters such as Mt. Wilson, CA and Sandia Ridge, NM.
  4. The cellular base station receivers may be inadequately filtered/shielded and subject to desensitization in strong fields from the FM transmitter hundreds of MHz away. Despite years of talk, FCC still has no general policy on receiver performance issues.
Some observations:

  • The IEEE-USA harmful interference white paper, released in July 2012, urges FCC to clarify the issue of “minimum protection distance” with respect to all interference issues since generally any receiver will get interference if it gets too close to a transmitter. While there are clear precedents for a few cases such as personal computers near TV receivers and UWB devices near PCS cell phones, FCC has no general position on this issue or even a process to determine minimum protection distance. Thus the cellular interests will say there is should be no interference at 500 feet and the broadcaster will disagree.
  • Rather than keeping this issue off the public agenda, as it has so far except for the difficult to find NOV, FCC should be engaging industry experts in an open and transparent way. This highlights one of the problems of the FCC’s Technological Advisory Committee (TAC): it is not set up to handle this type of problem as it consists mostly of technical policy managers of key players, not the technical experts in the area (National Academy of Engineering members and IEEE Fellows are rare) and meets infrequently. Thus there is no indication of any TAC involvement to date as this problem threatens LTE roll outs. Note that another IEEE-USA 2012 product, “Position Statement on Improving U.S. Spectrum Policy Deliberations in the Period 2013-2017” addressed the issue of improving advisory function based on best practices of other regulatory agencies with technical jurisdiction:

    FCC and NTIA should supplement their existing Technological Advisory Council (TAC) and Commerce Spectrum Management Advisory Committee (CSMAC), which consist mainly of representatives of major communications firms, with a new advisory committee that serves both agencies and focuses on independent review of options for resolving spectrum conflicts and identifying outdated policies. The new group should be modeled on the EPA Science Advisory Board and the NRC Advisory Committee on Reactor Safeguards and members should have the necessary security clearances to deal with issues involving classified federal government spectrum users, if so requested.

  • “Emerging interference” has been a recurring topic in this blog. In our dynamic wireless industry it is not surprising the new and unexpected interference mechanism appear in practice and need timely attention, for the bigger they become they usually become harder to solve. But for decades FCC has had no mechanism for dealing with emerging interference issues. Thus the police radar detector interference to VSAT receivers took more than a decade to resolve (the official FCC records “fuzzify” the starting date of the problem) and the “cellular booster” issue took 6+ years. FCC needs a generic and transparent problem for identifying such issues promptly and for engaging the public on which need urgent attention and which deserve “benign neglect”. For example, home TV antennas with built-in amplifiers, rare prior to DTV, are a recurring source of interference to TV and other services at a modest rate and it is marginal whether the issue needs regulatory attention at this time. But how many top FCC managers and 8th Floor residents are aware of this and other emerging issues?
  • This is closely related to the reason why the Commission’s Spectrum Policy Task Force originally raised the issue of “interference temperature” a decade ago. The goal was to define better what environment systems should expect in practical operation. It may well be that the designers of these base station never considered an environment with a strong FM signal present from a nearby transmitters. But the NOI/NPRM in Docket No. 03-237 was so poorly and confusingly written that FCC closed the docket in 2007 and has never expressed any further interest in the issue. Whether or not interference temperature is ever used as a basis for allowing more unlicensed use, quantifying expectation really would help incumbents and would allow timely resolution of controversies such as this FM/LTE one.

Your blogger has filed a FOIA request with FCC seeking all correspondence on this issue with outside parties relating to the NOV. It does not seek internal FCC documents that have various FOIA exemptions. These documents will be posted here as soon as they are available. However, unless they embarrass Rupert Murdoch, that probably won’t be soon.

* The NOV URL given is from the FCC website, BUT we have found no way to get there unless you happen to have bookmarked the URL for Notices of Violation and Notices of Unlicensed Operation issued by Field Offices or the Enforcement Bureau’s old home page - no longer linked to the main FCC website.

** - The “newcomer” policy dates back to Midnight Sun Broadcasting Co., Memorandum Opinion and Order, 11 FCC 1119 (1947), in which the Commission held a broadcaster responsible for resolving interference caused by its new facilities to other preexisting facilities in close proximity. See FCC 13-115 at para. 4 and fn. 7


In a tweet responding to this post, Brett Glass hypothesized “FM could be hitting inadequately shielded IF stages in LTE equipment.”

FCC Morale Continues to Improve According to Survey


Long time readers will recall that the Best Places to Work in the Federal Government program has been a recurring theme here. This was a Bush (43) Administration initiative that was ignored by the FCC leadership during that period. Since morale was high during the Powell chairmanship that is puzzling, but it is clear why the Martin chairmanship did not want any attention on employee attitudes.

FCC started participating in the 2009 survey and it is clear that there is a strong positive trend even though government-wide scores are decreasing:


FCC is considered a “mid-size agency” and now ranks 7 out of 23 such agencies. FCC was singled out for special praise this year in the report:

The Federal Communications Commission (FCC) is the most improved mid-size agency in the 2013 Best Places to Work in the Federal Government® rankings, moving from 10th of 22 agencies to 7th place out of 23.

The FCC, which regulates interstate and international communications by radio, television, wire, satellite and cable, has a Best Places to Work job and workplace satisfaction and commitment score of 71.3 out of 100, an increase of 4.6 points since last year.

In addition to increasing its overall score, the FCC improved employee satisfaction in seven of the 10 separate workplace categories that were measured.

The biggest gain was a 4.7-point increase in strategic management, which measures the extent to which employees believe management ensures they have the necessary skills and abilities to do their jobs. The FCC also jumped 3.8 points in its effective leadership score, which measures the extent to which employees believe leadership generates motivation and commitment, encourages integrity and manages people fairly.

My wife’s former employer, the Nuclear Regulatory Commission, used to be #1 government wide, but is now tied for 4th and is only slightly ahead of FCC in the mid-size category. FDIC with a score of 82.3 is the clear leader in the mid-size category, but #2 - #7, the group that includes FCC, has a relatively small spread in score between 77.2 and 71.3 . (In all fairness, FDIC is not your standard federal agency as it receives no appropriation and is supported directly by bank insurance fees. I believe that it has more discretion for internal spending that more normal agencies and thus may account for its higher score.)

Congratulations to the FCC leadership for continuing the improvement in employee morale and let’s hope they beat NRC next time!


Actually a non-update. In view of the nice words said about FCC in the report that are quoted above and its recognition of FCC’s as “most improved mid-size agency”, we are surprised there is no mention of the report on the FCC’s home page or its blog as of today 12/19/13.


A January 2, 2014 Washington Post article entitled “Tips from federal agencies with happy employees” has this additional information:

The Federal Communications Commission (FCC) also made positive strides, winning the ‘Best Places to Work’ most improved mid-size agency award in 2013, and moving from 10th out of 22 agencies to 7th out of 23 in the rankings.

After studying the federal survey used to compile the ‘Best Places to Work’ rankings, the FCC placed added emphasis on finding ways for management to better communicate with its more than 1,700 employees. The stepped-up communications included emails from the chairman and town hall meetings in various bureaus to highlight what the commission is doing and the valuable role played by employees. During performance reviews, managers also have talked about the importance of the mission and their workers’ contribution.

Oddly, as of the date of this article FCC has never said anything on its website or blog about this award. But then again, as we have written, FCC may just have an odd view to all awards!


Do FCC NOIs/NPRMs Have Too Many Poorly Organized Questions?
A Comparison with Ofcom and IC

Questions ending in question marks in Docket 09-157 NOI
FCC NOIs and NPRMs tend to have lots of questions, generally very poorly organized questions. Why? It is the byproduct of the coordination between the various bureaus and offices within the FCC staff and then with the 5 commissioners. It is very easy for all of the above to raise concerns. The authors seek to by them off by adding another question, hence questions keep growing and growing. Since no one is really in charge, there is no accountability for adding a question and it is often the price of getting a concurrence that is needed to meet a deadline.

Questions with “seek comment” in Docket 09-157 NOI
Let’s consider the “Wireless Innovation NOI, Docket 09-157. How many questions are in this 24 page document? Let’s start by doing a search for question marks are shown in the page above. There are 167 questions that end in a question mark! There are even 2 questions in footnotes to other question! (fn. 53 & 69. Note that fn. 53 seems to be irrelevant to the rest of the NOI and possibly was just inserted in the wrong document.) Former Commissioner Copps had an additional 11 questions in his statement.

But that is not all. FCC staff also is fond of using the phrase “we seek comment” in sentences that do not end in a question make but still constitute questions. There are 40 questions that use this construction. Is that all? Of course not!

Here are some of the creative ways FCC staff has found to place questions in this document:

  • Thus, we seek, as a general matter, comments regarding the spectrum requirements that are needed to foster innovation in wireless networks and systems (para. 25)
  • In particular, we solicit comment on the extent to which secondary market transactions result in the introduction of new and innovative services. (para. 33)
  • Commenters should, in particular, discuss how such information might be collected and made transparent to promote effective sharing.(para. 43)
  • We encourage commenters to identify unlicensed technologies that may be under development, and to discuss how we can promote further innovations in the use of unlicensed spectrum under our Part 15 rules.(para.45)
  • Accordingly, we encourage commenters to consider how policies for innovation in the wireless domestic market might appropriately reflect or support global innovation for international networks generally. By business model, we refer to a framework for converting technology to economic value. (para. 61)

The above accounting shows 223 questions! However, your blogger does not guarantee that number because of the creative ways FCC staff has to insert questions subtlety. Are there question numbers to help either
  • the public in responding to them, or
  • the public in dealing with reply comments, or
  • even the FCC staff preparing comment summaries?

Of course not! Why number questions, it might make it more difficult to keep adding more and more as you do anything to meet the deadline to get the document out the door. (Yes, I have worked in the FCC “sausage factory” and seen how “sausages” are made.)

Well, maybe this is inevitable? Perhaps. But let’s look at FCC’s UK counterpart, Ofcom. Here is a recent Ofcom document, Spectrum management strategy: Ofcom’s approach to and priorities for spectrum management over the next ten years. This is a “consultation” in UK jargon - the functional equivalent of an NOI. This document has 13 question in its 100 pages, starting on p. 41. While the questions are somewhat scattered, they are easy to find because they are both numbered and appear in boxes with a halftone background in the text. To make sure you don’t miss any, they are repeated as a group on p. 95.

Example of an easily identifiable question in an Ofcom consultation


Note also that all the references in footnotes seem to be given as URLs so someone writing comments can find them quickly. Note that most of the FCC’s references in footnotes are given as proper legal references and few URLs are given even though they exist for statutes, FCC Rules, and past FCC decisions. Would heavy use of URLs be too advanced for a US legal institution like FCC?

Well, the North Dakota Supreme Court has been issuing decisions in actual hypertext for more than a decade, giving both the proper legal citation as well as a hyperlink for all references! For a sample NDSC decision, surf over to here. If people in Bismarck ND can figure this out, you would think that technical wonks regulating our communications infrastructure on 12th St., SW could!

So are Ofcom and the North Dakota Supreme Court the only entities that know how to make legal documents more accessible? Surf over to our northern neighbor and see how Industry Canada issues “consultations”. Here is an example: “Consultation on Considerations Relating to Transfers, Divisions and Subordinate Licensing of Spectrum Licences”/pdf version. The first link goes to a hypertext version, like the NDSC decisions, with hyperlinks to the cited documents.

Example of an easily identifiable question in an Industry Canada consultation


The .pdf version is like FCC decisions - apparently our friends in Ottawa haven’t figured out how to put hyperlinks in .pdf’s as Ofcom has. But like Ofcom, IC has limited itself to 7 clearly identified and numbered questions (located in text boxes, but no halftone background as with Ofcom).

(For a later post, let me give you a sneak previous: the Down Under ACMA uses the same clear format as Ofcom and IC)

So can’t FCC learn from disparate places like London, Ottawa, and Bismarck ND on how to prepare documents that are easier for the public to use and understand?


Pay of Telecom Trade Association Chiefs

Ever wonder how much the heads of major telecom trade associations get paid?

Today FierceCable gave us the raw data for CY11.

So here in order are the big three. Sadly for NAB, their man comes in last. Perhaps a sign of the times of the decrease in broadcaster influence in DC. When I joined FCC in 1979, NAB, Motorola,, and AT&T (not the current AT&T) were the big forces at FCC and could almost dictate decisions to the 8th Floor. Only NAB remains of this triumvirate and into longer has the dominant position it once had. (The article reports also that NAB lags in revenue behind CEA, NCTA, CTIA, and even Cable Labs.)


CTIA’s Steve Largent was reported to have “a base salary of $2.3 million and total compensation of $2.7 million in 2011”

CEA’s Gary Shapiro was reported to have “$2.44 million pay package”

NTCA’s Michael Powell was reported to “earned a base salary of $1.7 million and total compensation of $2.25 million in 2011, including a $500,000 bonus.” However, he joined NTCA in March 2011 so it is unclear what the salary would be for a full year and whether part was a onetime “signing bonus”.

NAB’s Gordon Smith reported $1.2 million in salary and $1.43 million in total compensation for the year ending March 31, 2012. Actually, Smith was not really even #4 if you consider non spectrum telecom associations. Walter McCormick of USTelecom (the former USTA) had a base pay of $947,665 and total compensation of $1,581,000.

Why is this important? This is not left wing criticism of salary inequality. Rather the reason why these trade associations often stake out extreme positions and are unwilling to seek compromise for timely resolution of spectrum issues is closely related to the high pay of the CEOs and the resulting need of the CEOs to routinely impress the membership with macho stands on contentious issues -- in your blogger’s opinion. When FCC, the “expert agency in spectrum management” tries to seek consensus solutions as the almost universal alternative to deciding an issue on public interest factors, these macho CEOs are a barrier to timely resolution. Technology moves at “Internet speed”. Governments move at “government speed” and in spectrum policy FCC is often moving at the low end of even “government speed”.

As in the case of Docket 10-4 where it took 2487 days to resolve the issue of how to prevent cellular booster interference to cellular systems - not exactly “rocket science” - trade association rigidity to timely compromise hurts all parties involved. The recently announced PCS H block auction is another example of a proceeding that took far too much time to the detriment of the public and most firms involved. (The H Block controversy goes back to at least WT Docket No. 04-356.)

Perhaps FCC should recognize that it must be at least prepared to play King Solomon in technical spectrum disputes if it wants to have timely decisions with these macho players. Consensus solutions are a good idea, but only if they are timely and really equitable.


Here is a table with other trade association CEOs’ salaries for comparison.

FCC's Secret Store Room of Petitions "in Limbo"

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

5 USC 552(e)

Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.

black ho;le
A recurring topic in this blog has been the state of petitions at FCC. Several time we have use the illustration at left to describe the “black hole” that petitions filed at FCC disappear into.

Now much to our amazement we discovered that petitions “in limbo” - those that have neither been announced for public comment nor dismissed - are not hiding in a black hole awaiting a multiyear determination of whether public moments should be requested or whether they should be dismissed. No, they are “hidden in plain sight” in an “undocumented feature” of ECFS!

§ 1.403 Notice and availability.

All petitions for rule making (other than petitions to amend the FM, Television, and Air-Ground Tables of Assignments) meeting the requirements of § 1.401 will be given a file number and, promptly thereafter, a “Public Notice” will be issued (by means of a Commission release entitled “Petitions for Rule Making Filed”) as to the petition, file number, nature of the proposal, and date of filing, Petitions for rule making are available at the Commission's Reference Information Center, 445 12th Street, SW, Washington, DC and may also be available electronically over the Internet at http://www.fcc.gov/.

This discovery came about as a result of a puzzling detail on the recent NPRM on cell phones in prisons, Docket 13-111. On the first page is the text shown at right listing some of the 7 petitions that resulted in this NPRM. Now the drafters had a little problem: Notwithstanding the provisions of § 1.403 shown above, these petitions had been filed several years earlier, never had been announced for public comment, and thus has no “RM” number which would normally be posted on the cover pages of an NOI or NPRM? What to do?

The poor NPRM author who probably did not know why these petitions were given this odd treatment just filed in the blank with the only number he/she could find: an undocumented feature of ECFS used to store petition in limbo! As the NPRM went through the review and adoption process no one notice they were compromising one of the FCC’s favorite administrative tricks to avoid dealing with awkward issues.

So, SpectrumTalk readers here is the trick for finding these hidden petitions. Go to ECFS and type into the box labeled “Proceeding Number:?” a 7 character string in the following format:
  • First 3 characters: PRM
  • Characters 4-5: last 2 digits of year
  • Characters 6-7: 2 letter code for FCC bureau/office e.g. ET, WT

This explains the mysterious PRM09WT shown in the NPRM. That page has petitions filed in 2009 and assigned to the Wireless Telecommunications Bureau.

(Remember that ECFS defaults to documents filed in the past year so if you want older documents you must enter an earlier date in the “Date Search” input area.)

Several questions remain:
  • Do petition leave this address once they get an RM number or are dismissed?
  • Where do petitions for a declaratory ruling go?

(By contrast petitions for reconsideration are handled by CGB and go on public notice promptly.)

Based on this discovery some voyeuristic wandering through ECFS discovered these pending petitions that we will scoop our competition on:

  • Petition from Mimosa Networks filed on May 1, 2013 “ for the purpose of making spectrum in the 10.0-10.5 GHz band available for wireless broadband services.”
  • Petition from Fixed Wireless Communications Coalition filed on May 9, 2012 and amended on February 11, 2013 “to restart the Commission's pending proceeding to establish service rules for Fixed Service operations at 41-42.5 GHz (42 GHz band)”
  • Petition from James Edwin Whedbee to”amend Part 2 of the rules and regulations to liberalize equipment use by licensees and permittees.”
  • Petition from Ben Bartlett for MBAN Spectrum Allocation in TV White Space
  • Petition from Boulder Regional Emergency Telephone Service Authority for “adopt rules requiring wireless providers provide electronic data portals through which Public Safety Answering Points can expeditiously retrieve system and caller information related to 9-1-1 and Emergency Notification Services.”
  • Petition from Globalstar, Inc. to “Reform the Commission's Regulatory Framework for Terrestrial Use of the Big LEO MSS Band”
  • Petition from Consumer Watchdog “ to Require Mobile Broadband Carriers to Disclose Network Performance”
  • Petition from National Regional Planning Council “to create two new public safety specific Radio Service Codes designating conventional and trunked operation in the post re-banded 800 MHz band for spectrum managed by regional planning committees at the local level from 806-851/809-854 MHz.
  • Petition from The Society of Broadcast Engineers “to convert the MediaBureau's Consolidated Data Base System (CDBS) to North American Datum 1983 (NAD83) geographic coordinates”

So a question for the incoming Chairman: Does he intend to bring FCC into compliance with the existing requirement of § 1.403 for a prompt public notice announcing petitions for rulemaking? Or do we have to continue snooping around the FCC website to find out what is hidden in the corners?

House Commerce Committee Hearing July 11 on “Improving FCC Process”

On July 11 The House Commerce Energy and Committee’s Subcommittee on Communications and Technology will have a hearing on “Improving FCC Process”. The hearing will discuss two draft bills. One panel of witnesses will testify:

1. Stuart M. Benjamin, Douglas B. Maggs Chair in Law and Associate Dean for Research, Duke Law
2. Larry Downes, Internet industry analyst and author, including
The FCC's Unstructured Role in Transaction Reviews
3. Robert M. McDowell, former FCC Commissioner and Visiting Fellow, Hudson Institute
4. Randolph J. May, President, Free State Foundation
5. Richard J. Pierce Jr., Lyle T. Alverson Professor of Law, George Washington University Law School
6. James Bradford Ramsay, General Counsel, National Association of Regulatory Utility Commissioners

The subcommittee plans to reintroduce two bills that passed the House last Congress: H.R. 3309, the Federal Communications Commission Process Reform Act, and H.R. 3310, the Federal Communications Commission Consolidated Reporting Act. These bills aim to minimize the potential for procedural failings and abuse, and to improve agency transparency, efficiency, and accountability. The hearing will focus on discussion drafts of the two bills in anticipation of reintroduction.

The Federal Communications Process Reform Act passed the House in March 2012 by a 247-174 vote. To avoid micromanaging the agency, many of the provisions simply require the Commission to set its own process rules and then live by them. Among other things, the bill asks the FCC to examine the state of technology and the marketplace and conduct cost-benefit analyses before regulating; to publish the actual text of proposed rules; to afford commissioners, parties, and the public an adequate opportunity to review proposals; to publish its decisions promptly; and to evaluate whether adopted rules are meeting their purpose. It asks the FCC to create “shot clocks” so parties and the public have a sense of when issues will be resolved. To minimize the potential for abuse of transaction reviews, the bill would require any conditions to be narrowly tailored to transaction-specific harms and otherwise within the agency’s jurisdiction. To facilitate negotiation, the bill would reform the “Sunshine Act” to allow three or more commissioners to gather on a bipartisan basis.

(The above summary prepared by the subcommittee staff omits another change that modifies the Government in Sunshine Act and allows nonpublic meetings of commissioners. As this blog has previously pointed out, some closed meetings are permitted under the present law but there have only been 2 closed meeting in the past 16 years. This implies that there is a deeper problem than the Government in Sunshine Act that is not being addressed.)

The Federal Communications Consolidated Reporting Act passed the House in May 2012 on a voice vote. It seeks to relieve burdens on the agency and make reports more meaningful. By eliminating outdated studies and consolidating the ones that remain into a biennial release, the Commission will be more efficient and can provide more useful information. The draft also proposes a “State of the Industry” report, focused on the challenges and opportunities in the marketplace as well as the chairperson’s plan of action.

A subcommittee staff memo gives a detailed discussion of the proposed changes. Here is a link given for the video.

IEEE-USA Petition to FCC on Speeding >95 GHz Deliberations Under Terms of 47 USC 157


Section 7 of the Communications Act, shown above, was passed by Congress in 1983 and signed by President Reagan. It was then ignored in a bipartisan way by all FCC chairmen and virtually all commissioners for nearly 30 years. As reported here almost a year ago, it was “rediscovered” by Comm. Ajit Pai and was the focus of a speech he gave at Carnegie Mellon University on July 18, 2012.

On July 1, IEEE-USA, the US arm of the multinational engineering society filed at FCC a petition to ask to a declaratory ruling by the Commission that technology above 95 GHz presumptively qualifies at new technology under Section 7. Why 95 GHz? That is the upper limit for both licensed radio systems and unlicensed use under present rules.
(Part 18 ISM equipment may operate at 2 narrow bands above 95 GHz and Amateur Radio Service licensees have access to 3 bands above 95 GHz as well as “above 275 GHz”. Neither of these exceptions will stimulate a market for commercial products.)

The IEEE-USA petition seeks to have FCC presumptively declare that technology above 95 GHz is “new technology” in the context of Section 7 and thus entitled to the “burden” test if Section 7(a) and the timeliness requirement of Section 7(b).

mmW antennas & a dime

Technology above 95 GHz is in the millimeter wave (mmW) region and is very different than lower spectrum in its propagation, antenna technology, and transmitter design. Indeed the basic rationale for licensing that was clear when radio regulation began after the Titanic sinking is not so clear at these frequencies.

But the real issue here is uncertainty about FCC policy and the resulting regulatory risk that discourages capital formation for innovative technology. In the past few months I asked 5 prominent lawyers who specialize in spectrum issues how long it would take to a developer of >95 GHz technology to get FCC rules in place for normal sale and licensing (or unlicensed use) of the technology. One said 2 years, the other 4 said 4-5 years based on recent FCC performance in proceedings like UWB, AWS-3, and LightSquared.

Venture capitalists and “angels” have many people seeking funding for innovative technologies, most of whom are not subject to the regulatory uncertainties of FCC wireless technology regulation. These other technologies are therefore much more attractive to such capital than innovative wireless technology.

Furthermore, our major international competitor countries have a “state capitalism” viewpoint of wireless technology and regulation where the government “encourages” investment in chosen technologies, in some cases with government-controlled funding and coordinates spectrum policy to match the investments.

That is not the US system and probably should not be the US system. But it puts our technology developers, as well as our international competitiveness, at a real disadvantage if FCC does not consider such innovative technology in a timely way.

Hopefully FCC will request public comment on this petition quickly.
vox populi, vox dei


On the Next FCC Chairman


Today the White House is expected to announce the nomination of Tom Wheeler as the next FCC chairman. The following is Tom’s bio from his present firm:

Tom Wheeler joined Core Capital in 2005 after nearly three decades of working at the forefront of telecommunications policy and business development. As an entrepreneur, Tom founded multiple companies offering cable, wireless, and video communications services, and co-founded SmartBrief, the largest online targeted news service. As a policy expert, he has been intimately involved in the development of the government’s telecommunications policy at both the legislative and regulatory level. In 2009, he led the Obama-Biden Transition Project's Agency Review Working Group in charge of transitions for the science, technology, space and arts agencies.

On the 20th anniversary of the cable television industry (1995), Tom was selected as one of the 20 most influential individuals in the industry’s history and on the 25th anniversary of the cellular telecommunications industry (2008), he was named one of the top 10 innovators in the wireless industry. Tom was President of the National Cable Television Association (NCTA) from 1979 to 1984. After several years as CEO of various technology start-ups, including the first company to offer high-speed data to the home and the first digital video delivery service, he was asked to lead the Cellular Telecommunications & Internet Association (CTIA), where he was CEO until 2004.

President Obama appointed Tom to the President's Intelligence Advisory Board. Previously, Presidents Clinton and Bush had appointed him a Trustee of the John F. Kennedy Center for the Performing Arts. Tom is the former Chairman of the Foundation for the National Archives and Board Member of PBS. He has authored two books: Take Command: Leadership Lessons of the Civil War (Doubleday, 2000) and Mr. Lincoln’s T-Mails: The Untold Story of How Abraham Lincoln Used the Telegraph to Win the Civil War (HarperCollins, 2006).

Tom, congratulation on this well deserved great honor!

In anticipation of the election last year and the expected change in FCC leadership no matter what the outcome, IEEE-USA prepared a nonpartisan industry-neutral set of recommendations to improve spectrum policy decision making at FCC and parallel deliberations at NTIA. We hope that nominee Wheeler and the Senate confirmation will consider these issues to help make FCC function better in key spectrum policy issues that are vital to both the telecom industry and the whole economy.

(Click below for whole 10 page position statement)



For 2 divergent viewpoints on the nomination:



IEEE-USA Harmful Interference White Paper

IEEE-USA is part of the Institute of Electrical and Electronics Engineers, the world’s largest professional association dedicated to advancing technological innovation and excellence for the benefit of humanity, and was created in 1973 to support the career and public policy interests of IEEE's U.S. members. IEEE-USA is primarily supported by an annual assessment paid by U.S. IEEE members. Its goal is to “serve the IEEE U.S. member by being the technical professional's best resource for achieving life long career vitality and by providing an effective voice on policies that promote U.S. prosperity.”

The document shown at right, a white paper entitled “Clarifying Harmful Interference Will Facilitate Wireless Innovation“, was released this week by IEEE-USA and was drafted by its Committee on Communications Policy. Here is the executive summary:

In recent years, many of the spectrum policy controversies in the United States have dealt with the basic issue of whether a proposed technology or service will cause “harmful interference” to existing spectrum users. Resolving these issues has typically taken several years in an era where technology is moving at “Internet speed.” As the Federal Communications Commission (FCC) discussed in its Wireless Innovation Inquiry, the delays and lack of transparency associated with making go/no go determinations on harmful interference may be discouraging private investment in the development of innovative wireless technology.

This White Paper reviews the background of what is harmful interference and suggests incremental ways in which the two spectrum management agencies in the United States, the FCC and the National Telecommunications and Information Administration (NTIA), could clarify the definition by giving guidance on the sub-problems associated with harmful interference determinations. Changing the definition is probably impractical, due to the long list of precedents over decades that have been built on the current definition, even though it is not established by statute.

The White Paper also suggests that establishing timeliness goals similar to those voluntarily created by the FCC for equally complex and voluminous merger and acquisition reviews could also address the disincentives for private capital formation in the wireless technology area. Such timeliness goals could create a more “level playing field,” with respect to other technical areas concerning private funding of technical development.


Comm. Pai's First Public Speech Hits the Bull's Eye on Innovation

The Hill’s technology blog, Hillicon Valley, reported this week

In his first major speech as a member of the Federal Communications Commission (FCC), Ajit Pai on Wednesday proposed the creation of an office for expediting the reviews of new technologies and services. In the speech at Carnegie Mellon University in Pittsburgh, Commissioner Pai, a Republican who joined the FCC in May, accused his agency of moving too slowly and stifling growth in the communications industry.

In the speech at CMU also talked at length about Section 7 of the Communications Act, a section so rarely mentioned at FCC that your blogger was seriously wondering whether it was redacted from all copies of the Act at FCC. While ignored consistently at FCC, Section 7 has been a recurring topic on this blog and there are indications that Comm. Pai’s interest might have been influenced by the discussion here.

Here is Comm. Pai’s discussion of Section 7 in case you are rusty on the details:

Now, you might be wondering: What is Section 7 of the Communications Act? You’re not alone; many communications lawyers don’t know what it is.

Let me quote the important part of Section 7, the neglected stepchild of communications law: “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.”

Looking at that provision, the message from Congress is clear: The Commission should make the deployment of new technologies and new services a . a priority, resolving any concerns about them within a year.

Comm. Pai proposes a new “Office of Entrepreneurial Innovation” for FCC although he suggests that this might be done by transforming the present the Office of Strategic Planning and Policy Analysis.

He states

(I)f we create an Office of Entrepreneurial Innovation, shepherding proposals for new technologies or services through the FCC will become an institutional priority and send the right signals to the marketplace. Entrepreneurs need an advocate at the FCC—one that will hold us accountable if we delay, rather than decide. And if OEI succeeds in its mission, we will see faster innovation, greater investment, and more job creation.

Finally on more general spectrum policy issues, Comm. Pai says

When it comes to spectrum policy, I believe in an “all of the above” approach. Does the FCC need to make available more spectrum bands for wireless broadband? Yes. Do we need to reform the federal government’s management of its spectrum so that more can be made available for private-sector use? Yes. Does the FCC need to expedite its review of secondary market transactions? Yes. Is there a place for geographic spectrum sharing? Yes. Is there a place for unlicensed use? Yes. Do we need to do more to promote the efficient use of spectrum? The answer, again, is yes.

A virtuoso performance! However, many incumbents with good access to 8th Floor decision making probably don’t agree that innovation, other than their own innovation, is a great idea. During its heyday as the dominant mobile radio manufacturer, the old Motorola maintained its market hegemony in Part 90 (private land mobile) market by manipulating FCC rules to keep out innovation that would disrupt their market share out of the marketplace. Indeed, this is the very reason Section 7 was passed in 1983 after Motorola and its allies in the Part 90 user community derailed a new land mobile radio technology (ACSB) from a new entrant!

The speech ended with these impressive words,

Finally, the agenda that I have described today is a work in progress. This speech should be the beginning of a conversation, not the end of one. If you have thoughts on how the FCC can help accelerate economic growth and job creation, tell me. If you have a new idea for how the FCC can become more nimble, promote investment, or allocate additional spectrum for mobile broadband, let me know. Please do not hesitate to contact my office. We have an open-door policy, and we encourage you to take advantage of it. You can even reach out to me on Twitter; my handle is @ajitpaifcc. It doesn’t matter whether you represent a Fortune 500 company, a start-up with three employees, a public interest group, or just yourself. A good idea is a good idea, and I want to hear as many of them as possible.

Although our nation has been going through tough times these last few years, I am confident that our economy will rebound strongly, and that the ICT sector can help lead the way. We see a glimpse of that future here in Pittsburgh. And if we pursue the right policies in Washington, DC, we can remove barriers to investment and innovation and unleash a wave of economic growth and job creation all across the country. Working together, I know we can make it happen. Thank you very much.


FCC Hiring: Why is recruiting of lawyers so different than for engineers?

Last week FCC released the PN shown at left which announces that “it will accept applications from graduating law students and current judicial clerks for its Fall 2013 Attorney Honors Program”. FCC has hundreds of attorneys as well as hundreds of engineers so it makes sense to recruit them both in a systematic way to get the best people available for entry level positions. But let’s contrast this with the recruiting of engineers for FCC career jobs.

The recruiting of lawyers at the beginning of the Fall term is a long standing tradition at FCC that has been discussed here before. The only way to get the best people is to go when recruiting of the graduating class starts. Yet for engineers, recruiting must always wait until the budget is finalized which in the current political environment is in the Spring. Indeed, this year FCC did not even officially announce jobs for entry level engineers until May! While it is necessary for FCC managers to say they have hired great engineers, it is clear that the pickings are pretty slim if you wait until late in the school year to even look.

On the webpage for the FCC lawyer recruiting program it states

“Specific placements within the agency will be based on the participant’s interests and experience and the needs of the FCC. Participants may have the opportunity to rotate to a new assignment within the agency at the end of their first year. During their two years in the Honors Program, attorneys also will be afforded professional and educational opportunities designed specifically for Program participants.”

While I worked at FCC I repeatedly pushed for an analogous rotation program for entry level engineers. It was specifically rejected because the bureau chiefs who employ engineers are interested in their near term problems which are generally processing delays for various types of licenses and view entry level engineers as “cannon fodder” to fight such processing battles. The concept of development of staff engineers for future work in policy areas is not on their mind.

Note that the Nuclear Regulatory Commission explicitly offers rotations for entry level hires in both engineering and legal fields. The National Security Agency, reportedly the government largest employer of electrical engineers, offers new employees various types of career development to both attract good applicants and enhance their careers.

When I joined FCC, the headquarters engineering staff included some individuals who had started in the old FOB (now EB) in enforcement field offices who had solved real problems “outside the beltway” and knew the operational aspects of the telecom industry. In myopic budgeting decisions this has become very rare because FCC now jumps through hoops to avoid paying any relocation costs for personnel and has essentially told field personnel not to expect a job in DC unless they agree to not ask for any relocation costs. James McKinney, Carlos Roberts, and Dick Smith are all FOB field alumni who moved to DC and became bureau/office chiefs. This lack of mobility both hurts recruiting and hurts engineering staff development.

When I was on active duty in the Air Force at the end of the Viet Nam War, I was puzzled why the Air Force was forcing people out to downsize at the same time it was recruiting new entry level enlisted men and officers. I asked a wise old colonel I worked with and he explained it very simply and clearly: The US Air Force will be around 10 years, 20 years and more from now at some size that is hard to predict. It will always need a mixture of people with differing years of experience and differing ranks. If you turn off the entry spigot or get the wrong people, than years into the future there will be major staffing problems.

That is problem with FCC. Staffing people look at near term goals not long term institutional needs. I do not know how big FCC will be in 2020. I do not know how many engineers it will need in 2020. But I do know that FCC, or any organization that might replace it, will need a mixture of high quality engineers with a mix of experiences.

Docket 10-4: 6+ Years of FCC Inaction Turns an Emerging Interference Issue into a "Lose/Lose" Situation

On January 6, 2010 FCC issue a Public Notice initiating Docket 10-4. The PN stated without comment

On November 2, 2007, CTIA, the Wireless Association (CTIA) filed a Petition for Declaratory Ruling (CTIA Petition) regarding the proper use of signal boosters in Commercial Mobile Radio Services (CMRS).

Hence there was no explanation for the over 2 year delay in responding to this petition from a very powerful trade association. If a trade group as powerful as CTIA can be ignored for 2+ years, one wonders how much attention a mere startup company would get? Since the 1st Amendment guarantees the right “to petition the Government for a redress of grievances” and the APA reiterates this right, "Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule" (5 USC 553(e)), it is puzzling that FCC in recent decades have given most petitions such little attention. When Bob Foosaner was head of WTB’s predecessor in the 1980s, he argued pragmatically that petitions had to be either dismissed or put out for public comment in about a month, for otherwise the embarrassment of inaction impacts the real options.

(While the delay from the filing of the petition to the FCC PN was 26 months, the petition included as an attachment a “WHITE PAPER ON THE HARMFUL IMPACTS OF UNAUTHORIZED WIRELESS REPEATERS” that had been submitted to FCC on May 1, 2006! Thus CTIA had formally contacted FCC about the interference from bidirectional amplifiers almost 4 years before FCC took any public action, such as asking for comments, on this issue! Below is a section heading from the CTIA 2006 white paper)


Unfortunately CTIA’s documents failed to recognize that although early amplifiers sometimes caused interference, they were also of real benefit to consumers who suffered from marginal cellular coverage especially in rural areas. They also were very popular among public safety users, although they also complained about interference from early models (still permitted due to the impasse in this proceeding). Thus the total prohibition of amplifiers that CTIA sought was unreasonable, although it took a long time for key CTIA members to come to this realization.

We have argued here previously that emerging interference issues are inevitable in the dynamic wireless area and need to be addressed and “nipped in the bud” before they get worse. The 10+ year delay of dealing with police radar detector interference to VSAT terminals is an example of ignoring a problem until it becomes unmanageable and then putting burdens on all involved to solve it. (FCC has never even acknowledged publicly that it was aware of this problem for 10+ years before taking action!)

So what has happened in the 6+ years since CTIA’s white paper was filed? Since there has been no regulation adopted to address the issue of amplifiers that oscillate like PA systems with a microphone too close to the speaker, low end manufacturers still sell such amplifiers in the US market and presumably continue to cause interference. High end US-based manufacturers have switched to designs that are protected from oscillations and do not cause this interference - although the present designs they might cause much less frequent problems through more obscure mechanisms. However, due to regulatory inaction by FCC, low end manufacturers can continue to sell early generation units that can and do oscillate and cause interference to cellular systems.


  • Cellular operators continue to get interference from existing and new amplifiers that come from low end manufacturers and which continue to be legal in the current regulatory impasse.
  • Legitimate amplifier manufacturers with updated designs that don’t oscillate suffer price competition from low end makers who undersell them with equipment that threatens cellular systems AND during the pendency of this rulemaking have limited access to new capital for improved equipment design due to regulatory uncertainty during the tendency of this proceeding. At least one of these manufacturers actually makes the units in a small US town in a “red state”. One new US entrant who contacted me several years ago about entering the market with an oscillation-protected design never got the financing he needed - probably due to regulatory uncertainty.

A true “lose/lose” situation! Due to the deadlock both sides (as well as the public) suffer!

Meanwhile the CTIA membership can’t make up its mind what the powerhouse should press for and meanders like a rudderless ship. A recent filing has a table summarizing the positions of the various carriers with respect to the “Joint Proposal” of Verizon Wireless and Wilson Electronics for reasonable regulation of amplifiers.

Comparison of carrier positions from Millard/Raines Partnership 5/12 filing

What is needed here is some real leadership either in the cellular industry or at FCC. While reasonable people can disagree on the best solution, most will agree that a solution is in everyone’s interest. Perhaps FCC should send an ultimatum to the industry to come up with a unified position within 2 months or else FCC will moved directly to a decision based on the current record.

It is nice to try to be everyone’s friend, but that is not a good way to run a regulatory agency in a fast moving technical area. Some times you just have to make a decision and move on.

It has been over 6 years since CTIA said


Now is the time for action! This problem is not “rocket science”, rather the impasse reflects a basic problem in FCC spectrum policy: an unwillingness to tackle basic Title III issues that are part of the Commission’s basic charter.

If the FCC IG had a good understanding of his role, he would investigate how this mess developed at FCC so the Commission can learn from these events. Don’t hold your breath, though.

So let me make a modest suggestion to resolve this impasse:

In effect the Commission is now using an informal nontransparent version of negotiated rulemaking (neg/reg) to resolve this problem. It is waiting for the parities to reach consensus - they aren’t.

As I
indicated previously, while neg/reg has been successful in Executive Branch agencies, it has never been successful at FCC. I believe the reason is that neg/reg depends on a fear by all affected parties involved that the agencies will quickly make its own decision if negotiations fail to reach a consensus. In a multimember commission like FCC the parties generally feel they can just take an impasse to the 8th Floor and start all over again. Thus I propose that the Commission quickly convert this proceeding to a formal negotiated rulemaking one with a short time frame, say 60 days AND delegate, pursuant to Section 5(c) of the Communications Act, the authority to issue an NPRM and a Report & Order to one commissioner who is solely responsible for the negotiated rulemaking. Thus the neg/reg committee members will see that escalating the issue to 8th Floor politics is pointless and it is time to make real concessions while the issue is under their control. Hopefully just deciding to act this way may pressure the parties involved to reach a timely consensus without the formality of neg/reg and lead directly to timely resolution of these issues.

This type of issue should not take more than 6 years to resolve! The delay highlights a major problem in Title III policy development at FCC: an unwillingness to make timely decisions on the bread and butter issues that are necessary for efficient spectrum policy. If the commissioners would like to spend their time on grander issues, they should develop alternatives to deal with these issues. Section 5(c) gives they great flexibility in improving FCC throughput. Resolving all issues with 5 presidential appointees is not really practical in today’s complex environment.

When FCC first met in 1935, it created 3 parallel committees of (the then 7) commissioners (called “divisions” at the time) so the 3 committees could work in parallel. Today’s industry and technology is much more complex than in 1935 and the 1946 APA makes decision making much more complex. The delay in this proceeding shows that the present structure just isn’t working and all parties are suffering as a result.


NRC's Inspector General Understands His Role,
Why Doesn't FCC's IG Understand His?

The role of the FCC’s Inspector General has been a recurring topic here. Especially the historic unwillingness of the FCC’s IG to look into the functioning of the Commission and instead to focus nearly all resources on the fraud issues that are also a legitimate part of the IG role. An earlier pair of posts here was entitled “A Credible Inspector General Would Make FCC More Credible”.

It was pointed out that ALL federal agency IG’s have the same legislative charter.

They are ALL obligated by 5 USC App. 4(a)(2)

to review existing and proposed legislation and regulations relating to programs and operations of such establishment and to make recommendations in the semiannual reports required by section 5 (a) concerning the impact of such legislation or regulations on the economy and efficiency in the administration of programs and operations administered or financed by such establishment...

The only difference between cabinet level IGs and independent agency IG’s is who appoints them and whether they are subject to Senate confirmation. Their roles and obligations are identical under the above statutes.

The above report was obtained by and published by The Hill and summarizes a recent NRC IG report about possible transgressions by its chairman. Those of us who remember Chairman Kevin Martin may recognize some parallel issues. Of course, Chmn. Martin never had to worry of the FCC IG would ask questions like when he “attempted to control the content and flow of information to the Commission” (“Issue 3 Allegation” , p. v) or whether the “Chairman’s interpersonal interactions with (the Commission) staff and Commissioners has created a chilled workplace environment” (“Issue 5 Allegation”, p. vii) Perhaps if Kevin Martin had had a truly independent IG he might have moderated his behavior - either in response to such oversight or might have avoided some of his bizarre actions if he knew such oversight was possible - and the FCC might have been more productive during his tenure

Until the appointment of the present IG, all FCC IGs had been long term FCC staffers who were known not to “shake the boat”. Indeed, the previous IG, while he was working in OET, told an acquaintance of mine who worked for him that he should not be concerned about a clear violation of ex parte rules because that was just accepted practice at FCC!

FCC as an institution never learns from previous problems. Isn’t the current problem at TV channel 51 with adjacent mobile bands a close cousin of the Channel 14 and 69 problems of the 1980s? Didn’t FCC staff cover up the existence of police radar detector interference to VSATs for a decade before acting? Why don’t emerging interference problems become visible on policy makers’ desks? What can be learned from the GPS/LightSquared issue? Indeed, an FCC IG review of GPS/LS might have made the Commission’s actions seem more reasonable and responsible. As I said earlier, “A Credible Inspector General Would Make FCC More Credible”.


The whole NRC IG report has still not been made public, although Chairman Jaczko has issued a public statement disputing it. However, some publications apparently have the whole text now. Here as some juicy tidbits that Platts.com published:

The IG's report follows complaints by NRC's four other commissioners late last year that Jaczko was prone to angry outbursts and withheld information from his colleagues.

The report described two tense interactions between Jaczko and (NRC Commissioner Kristine) Svinicki that left her "shaken" and describes another incident after which Svinicki was apparently unwilling to be alone in her office after business hours.

The report said that in March 2011, an unnamed witness said Jaczko stormed to Svinicki's office after hours, upset about a letter Svinicki and other commissioners had sent to a member of Congress. Finding her office locked, Jaczko "was ranting, cursing and had banged on Commissioner Svinicki's suite door," the staff witness told Svinicki later, according to the IG report.

Svinicki was inside her office but did not hear Jaczko, the report said.

After learning of the event, Svinicki changed her behavior, leaving the office as soon as her staff departed for the day and being escorted to her car for a period of time, the report said.


The report included 15 examples where Jaczko's behavior, according to the IG report, "was not supportive of an open and collaborative work environment" and left some subordinates feeling "bullied."

Commissioner William Ostendorff told the IG that in a "very heated" meeting about post-Fukushima agency actions, Jaczko "lost his temper," then threw his gavel on the table and closed the meeting while Ostendorff was still speaking.

The IG said it had received a statement in March from Jaczko's attorneys saying the chairman had taken "numerous steps" since the December hearings to improve his relationship with commissioners and staff.

The report concluded that Jaczko's testimony to Congress during the December hearings was different from what staff told the IG in five areas but said the Department of Justice concluded "the matter did not warrant prosecution."

Doesn’t this remind you of Chmn. Martin?

FCC & The GSA Scandal

David Foley, deputy commissioner of the GSA’s Public Buildings Service (on administrative leave as of 4/9/12) and (until recently) deputy to Robert Peck, formerly of FCC

You probably have read more than you ever wanted to know about the recent GSA Las Vegas conference scandal. For those who have been on Mars for the past week, USA Today reports

General Services Administration is resigning and two top aides have been fired over an $835,000 training conference in Las Vegas that included a mind reader and commemorative coins.

"The president was informed before his trip to South Korea, and he was outraged by the excessive spending, questionable dealings with contractors and disregard for taxpayer dollars," said White House chief of staff Jack Lew.

Obama "called for all those responsible to be held fully accountable given that these actions were irresponsible and entirely inconsistent with the expectations that he has set as president," Lew said.

However, there are indications that these lavish conferences may have begun under Bush 43:

The Obama administration has come out and criticized the shocking spending and is now pointing the finger at the Bush administration for the problem. A White House official has said that in 2004, the conference cost $93,000; in 2006, the cost had ballooned to $323, 855; and by 2008, it hit $655, 025.

So what is the FCC connection?

  1. Robert Peck, until recently Commissioners of the Public Building Service mysteriously worked in the Office of the Managing Director in the past where he bore much of the brunt of the Republican criticism of the Portals selection for FCC’s current lease
  2. This scandal was uncovered by GSA’s Inspector General. FCC leadership, under all recent chairmen, need not fear such sleuthing since the FCC Inspector General constantly ignores his statutory charter and focuses on issues that couldn’t embarrass the “8th Floor”.

Robert Peck’s bio has disappeared from the GSA website, but here is what it used to say:

Robert A. Peck serves as the Commissioner of Public Buildings for GSA. He was appointed to this position on August 19, 2009.As Commissioner, Peck is responsible for the nationwide asset management, design, construction, leasing, building management and disposal for 375 million square feet of government-owned and leased space, accommodating 1.1 million federal workers. Additionally, he oversees annual revenue of more than $9.4 billion and a workforce of 6,750.

Most recently, Peck served as a managing director of Jones Lang LaSalle, where he advised corporations, governments, and nonprofit institutions on real estate portfolio strategy and on public-private, mixed-use developments. He previously served as Commissioner of Public Buildings during the Clinton administration.

His prior federal experience includes positions at the Office of Management and Budget, the National Endowment for the Arts, and the Federal Communications Commission. On the U.S. Senate staff, he was associate counsel to the Committee on Environment and Public Works and Chief of Staff to the late U.S. Senator Daniel Patrick Moynihan. He has also been a land-use and real estate lawyer, president of the Greater Washington Board of Trade and vice president for public affairs at the American Institute of Architects.

Peck served as a Special Forces officer in the U.S. Army Reserve. He is a past president of the D.C. Preservation League, a former appointee to the D.C. Board of Education and has served on numerous other public and nonprofit boards.

Peck holds a bachelor’s degree in economics from the University of Pennsylvania, a Juris Doctor from Yale Law School and was a Visiting Loeb Fellow at Harvard University’s Graduate School of Design.

The FCC website search engine has no information on Mr. Peck, perhaps because his service at FCC was in the early Hundt Chairmanship when the website was just coming into creation. (FCC alums recall that Hundt’s predecessor brought FCC touch tone phones to replace dial ones and a desktop computer system using VT-100 “smart terminal” clones that was obsolete upon arrival.) I recall speaking with Peck several times when he mysteriously came from The Hill to take a top job in the Managing Director’s Office. He seemed like a nice enough guy who asked a lot of good questions about FCC, although I can’t recall what topic I was working with him on.

The Republican criticism of the FCC Portals move often includes Peck as a bad guy as shown in this article from our local right wing free newspaper. However, when I was in the former Field Operations Bureau, now Enforcement Bureau, the most secret project I ever saw was covert measurements of new location for FCC headquarters that were made at the direction of the Chairman’s Office - involving multiple chairmen from both parties. The purpose of these measurements was to use FOB’s minimal radio monitoring capability at headquarters as an excuse to eliminate certain sites and favor others. So one had to know the spectrum characteristics of each site in order to “tilt” the RFP to favor/disfavor certain ones. This was a bipartisan game during the near 2 decade search for a new site after the Rosslyn site (later leased to USA Today, which has since moved elsewhere) went down during the early Reagan Administration.

Mr. Peck was an example of politically connected people who were cycled through high FCC management positions to groom them for higher positions in other agencies. This has also been a bipartisan practice at “independent” FCC to do such favors for whoever is in the White House and has further muddied FCC management capability and the lowered the morale of well motivated career civil servants.

On the 2nd point, readers may recall that the dismal state of the FCC Inspector General’s office for the past decade or so has been a recurring theme. The GSA scandal was uncovered by GSA’s Inspector General. Both the GSA IG and FCC’s IG have the same exact basic responsibility: They are both obligated by 5 USC App. 4(a)(2)

to review existing and proposed legislation and regulations relating to programs and operations of such establishment and to make recommendations in the semiannual reports required by section 5 (a) concerning the impact of such legislation or regulations on the economy and efficiency in the administration of programs and operations administered or financed by such establishment...

The only difference is that the FCC IG is appointed by the Commission upon recommendation by the Chairman and the GSA IG, like most major agency IGs is appointed by the President with Senate confirmation. But the obligations are the same.

While the current FCC IG is not an 8th Floor intimate like all his predecessors, he has chosen to continue their practice of focusing almost entirely on external fraud issues involving the Universal Service Fund that are within his charter and avoiding issues of internal FCC operations that would appear to be required by 5 USC App. 4(a)(2) but which might be embarrassing to the 8th Floor. Thus do not expect any IG reports on what were the root causes of the GPS/LightSquared flap or the Channel 51 controversy. A functional IG could help FCC learn from the past, but this seems unlikely to happen soon. So if FCC had a GSA-like scandal, the FCC IG would never be the one to reveal it. (Actually, FCC discretionary appropriation - the amount in excess of fixed costs such as salaries and rent -is so small that FCC could never spend as much money as GSA did.)

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Survey: Major Wireless Developments 9/10 - 9/11
by Ari Fitzgerald & Mark Schneider

Ari Fitzgerald

Mark Schneider

My well respected
former FCC colleague, Ari Gitzgerald has released a well written spectrum policy survey paper he coauthored with Mark Schneider of Sidley Austin LLP. The Hogan Lovells website with the paper adds “with contributions from the following telecommunications lawyers at Hogan Lovells LLP: Michele Farquhar, a partner; and associates Mark Brennan, Chris Termini and Aaron George.” The 90 page paper is well footnoted and should be a useful resource for many. It was very gracious of the authors to make this paper public.

The paper was presented originally at the Practising Law Institute’s 29th Annual Telecommunications Policy & Regulation Institute publication in December 2011. Long time readers may recall that we have written about this event before in this blog. PLI is a nonprofit group that charges high (>$1000) prices for both attendance at its events and copies of the material presented. There is nothing wrong with this so far.

However, PLI events get ALL the “movers and shakers” from high FCC leadership, e.g. commissioners and bureau/office chiefs, who give presentations to the honchos of industry and K Street firms without making the same information available to the public. I have previously suggested to FCC that if these presentations are prepared with federal resources they should be made available to the public and if PLI is selling videos of the presentations, the FCC should demand copies of the presentations by FCC officials as a precondition for their presentations. Such videos should then be posted for the public within a few days of the PLI event.

On the FCC website I can only find the text of Comm. McDowell’s presentation for the 2011PLI telecom event and nothing for the other FCC presenters. There are, however, copies of Chmn. Kennard’s presentation in 1997 and 1999, Comm. Tate’s presentation in 2008, Chmn. Hundt in 1997, Comm. Copps in 2006, Former WTB Chief Muleta in 2003, etc. Thus there is precedent for making the presentations public, but no consistency.

Also, NTIA Chief Strickling made public his remarks at the 2011 PLI telecom event.

So if you want to hear public officials speak on telecom policy, you can sign up now for the 2012 PLI telecom event on December 6-7 for a mere $1,595.00 OR, FCC could adopt the policy advocated above that the presentations by public officials about the public business should be made public within a few days.

Meanwhile, kudos to Comm. McDowell and NTIA’s Strickling for making their presentations public along with Ari Fitzgerald and Mark Schneider for making their thorough review available to those of us who do not work for or have not hired a K Street law firm, e.g. the “99%”.


2011 Best Places to Work in the Federal Government Report

best places to work

The annual Best Places to Work in the Federal Government report has been a recurring theme here. The Partnership for Public Service uses data from the Office of Personnel Management's Federal Employee Viewpoint Survey to rank agencies and their subcomponents according to a Best Places to Work index score. Agencies and subcomponents are not only measured on overall employee satisfaction, but are scored in 10 workplace categories, such as effective leadership, employee skills/mission match, pay and work/life balance.

FCC avoided the survey in 2003-2007, but has participated in 2009-20011. This year FCC ranked 17th out of 32 small agencies. In the 2009 survey, based on data collected in 2008 under FCC Chairman Martin, FCC ranked 28th out of 32 “small agencies” and was lower than all but 25 out of the 278 organizations surveyed. But in 2010, FCC was justifiably proud of being “most improved agency in the Federal Government” .

This year FCC is 17 out of 32 small agencies rated. (The small agency category is a little arbitrary as the U.S. Nuclear Regulatory Commission, slightly larger than FCC, is not a small agency.) FCC’s absolute score is down slightly from last year, but The Washington Post’s Federal Diary column points out that in the current political stalemate, most agencies’ scores are down.

As shown in the chart at left, FCC is still in the average zone for small agencies. I suspect one factor is the lack of stability and continuity for top managers at FCC compared to other agencies. For decades FCC has lacked a top tier of senior civil servants who survived presidential and chairman transitions. (The Mark Fowler to Al Sikes transition was one of the “bloodiest” for senior managers even though the Reagan remained President.)

The reasons for the senior management changes are complex and there is fault on both the 8th Floor political level and the many of the career civil servants who do not act like nonpartisan “British civil servants” as they rise in their career, but rather tend to pander to the political crowds. Bob Pepper was a notable exception serving high positions at FCC under 6 chairmen of both parties. That is truly rare now. But this type of continuity is essential to bridge the gap between the 8th Floor and the staff and make FCC a more effective agency.


Deficit Limits, Budgets and Their Likely Impact on Wireless Innovation at FCC

Time cover downgrade
I recall being at FCC in 1981 when the Reagan budget cuts came rolling with the new Administration and Congress. FCC like most other agencies were viewed as an “enemy of the people” to be held on the shortest budget leash using “zero based budgeting”. I has been the 157th person hired in OET’s predecessor in 1979, I believe OET’s staffing is now around 90. Prior to these budget cuts, there was a policy research budget controlled by OPP. It was used for starting what now is called Wi-Fi and Bluetooth as well as exploring how much UHF spectrum could be made available if TV receivers were better.

In the 1970’s FCC went twice to the National Academies to ask for policy research studies on major technical controversies that were delaying industry growth. These two studies then became the frameworks of Part 25 Fixed Service/domsat sharing in C band and the Part 68 interconnection rules that opened the floodgates for CPE - units connected to the telephone line.

However, the early Reagan cutback eliminated funding for such studies and slashed technical staffing at FCC. The 8th Floor grew increasingly interested in universal service issues, broadcast ownership and content, and, more recently, in broadband issues. These are all important issues, but so are the technical issue of spectrum policy particularly as they relate to wireless innovation. While is is tempting to see broadband on in terms of repurposing spectrum to me some goal, the needed capacity is a function of spectrum, technology, and infrastructure investment - as was made clear in a recent Ofcom report.

New technology does not emerge spontaneously. Wireless technology is subject to unusual regulatory issues and the complex nature of this and resulting uncertainties is a real discouragement to wireless innovation - something acknowledged by FCC in the Wireless Innovation NOI.

The present spectrum “haves” may well prefer less FCC action in encouraging and considering new wireless technology and thus may be cheering secretly for pending cutbacks in technical policy resources at FCC. But the national interest is not always the interest of the major corporations roaming the halls of the 8th Floor. We all recall when Microsoft, Google, Apple, and RIM where small firms getting little attention among the established firms such as Motorola, RCA, GE, IBM, etc.

The excess time delays associated with many recent decisions in wireless policy, either big decisions like the AWS-3 nondecision after 4 years of deliberations and the similar delays in delays and nondecisions in much less controversial matters ably described by Mitch Lazarus in comments to the Commission, both delay new technology and discourage investment in it vis-a-vis other fields with more transparent regulation.

The 1980s shrinkage in FCC resources was repeated again in the last half of the last decade:

FCC staffing 2003-1009 (http://bestplacestowork.org/BPTW/rankings/detail/FC00)

Sadly, it is virtually inevitable that the current budget/debt limit mess will lead to the same resource devastation. Much of the FCC constituency, like much of the EPA and SEC “constituencies”, would prefer that their regulatory agencies be cut to allow the “market” to be more effective. Indeed, Indiana Gov. Mitch Daniels calls EPA the “employment prevention agency”. Perhaps it is, but in many of its decisions FCC is the employment creation agency! A one size fits all slashing of agency budgets will adversely affect wireless innovation even if it spares the narrow issue of finding more spectrum for broadband.

NAB and MSTV might view a freeze of all present FCC regulations as being in their interest. CTIA and CEA might want a singleminded focus on more spectrum for broadband and ignoring all other spectrum issues. Indeed, by focusing exclusively on “clearing spectrum” for broadband the impact of broadband on other incumbents will be worse since new technology for either broadband applications or other incumbents, e.g. broadcaster, will be put on hold unless they are lucky enough to be already allowed under today’s anachronistic rules. Capital formation for innovative wireless technology will dry up nearly completely since there will be unpredictable delays in getting FCC action on necessary rule changes/interpretations. Under such circumstances FCC could truly become the “employment prevention agency” agency and wireless innovation would be reduced to making overseas standard making organizations like ETSI the gatekeeper to US spectrum - US startups need not apply without huge capital resources and foreign partners.

If FCC can not get a reprieve from the pending budget ax, let me point out a less desirable alternative that has not been discussed: Making new technology deliberations user fee supported. Note that this is already allowed at FDA for new drug and new device applications, at USPTO for speeding patent applications, and at USNRC for speeding reviews of new reactor technology.

FCC could ask for authority to collect fees for dealing with new technologies that raise interference questions and then use those fees to speed up deliberations by using outside resources to supplement its staff or hire more staff. In exchange for this income, FCC would have to pledge timeliness improvement from its present poor performance in new wireless technology deliberations. This might be done by asking that Section 7 be amended to make it realistic, not an unobtainable goal as at present. While this would make wireless innovation more costly by internalizing the cost of FCC deliberations into a business plan, it may well be more attractive to wireless R&D investor than the present chaos.

But FCC deliberation on innovative wireless technology consistently violate Section 7 under current funding and the expected funding contraction will only make it much worse. Innovators do not expect regulator certainty, but do expect and deserve transparency and timely resolution.


Agreeing with CTIA: Eshoo Bill is Solution to Nonproblem

CTIA’s Jot Carpenter tweeted today:

“We are concerned that the bill proposes to add a new layer of regulation to a new and exciting set of services, while ignoring the fact that wireless is an inherently complex and dynamic environment in which network speeds can vary depending on a wide variety of factors. Congress should resist calls to impose new regulations and instead focus on the real issue, which is making sure that America’s wireless carriers have sufficient spectrum to lead the world in the race to deploy 4G services.”

Readers may think your blogger has a hatred of CTIA because they are often criticized here. The criticism is because of a fundamental disagreement on several issue like prison jamming, information about cell phone safety, indifference to physical appearance of base stations in populated areas, and cell phone use while driving issues. But I admire many other positive aspects of CTIA and its activities.

In this case, CTIA and I agree on a new bill, “Federal Communications Commission Process Reform Act of 2011”. The House Subcommittee on Communications and Technology majority (Republican) staff have circulated this summary of the bills new provisions:

New section 5A(d)—Bipartisan Initiation of Items. Requires the Commission to establish procedures to allow a bipartisan majority of Commissioners to put an item on the Commission’s agenda.

New section 5A(e)—Publication of Reports and Ex Partes. Requires the Commission to seek comment on reports and establish procedures for giving the public an opportunity to evaluate ex parte filings before the Commission may rely on them.

New section 5A(f)—Pending Item Publication. Requires the Commission to establish rules regarding the publication of a list of the draft items the commissioners are currently considering.

New section 5A(g)—Shot Clocks. Requires the Commission to establish shot clocks for each type of proceeding it oversees.

New section 5A(h)—Release of Documents and Reports. Requires the Commission to release reports according a schedule it has established, and all orders within seven days of adoption. The Commission must report to Congress whenever it misses its own deadlines.

New section 5A(i)—Biannual Scorecard. Requires the Commission to report every six months regarding its progress meeting its shot clocks.

New section 5A(j)—Transaction Review Reform. Preserves the Commission’s ability to review transactions but requires conditions to be: (a) narrowly tailored to remedy harms that arise as a direct result of the transaction and (b) requirements that the Commission could otherwise impose under its rule making authority. The same requirements apply to “voluntary” commitments.

New section 5A(k)—Communications Marketplace Report. Requires a biennial report to Congress giving a big-picture view of what’s happening in the industry, the challenges for jobs and economic growth, and the Commission’s agenda to address those issues.

The FCC’s actions are governed by the same Administrative Procedures Act and Government in Sunshine Act as the rest of the federal government, including the other regulatory Commissions. Many of these issues are addressed under existing legislation that is not followed particularly well. What is the need for FCC exceptionalism here?

I am sorry Comm. Copps is so upset about the Government in Sunshine Act. But the Commission under present laws and regulations have the authority to meet privately to discuss certain topics. There has not been such a closed meeting in nearly a decade. The comity among commissioners thus is not a result of the current law but of a major breakdown on the 8th Floor that can not be legislated away.

The one point I would agree with is the “shot clock” issue. The Commission has consistently ignored Section 7 of the Communications Act ever since it was passed in 1983, while it does have a “shot clock” for corporate mergers which have no legal deadline.

Section 7 & Wireless Innovation: IEEE-USA Letter to FCC

IEEE-USA is the policy arm of the Institute of Electrical and Electronics Engineers. It advances the public good and promotes the careers and public policy interests of 210,000 engineering, computing and technology professionals who are U.S. members of IEEE and this week sent a letter to FCC on the implementation of Section 7 of the Communications Act of 1934.

Since the passage of 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


"If there is only one action we could take this year to reform the FCC" - What would it be?

Comm. Copps issue a statement yesterday shown in the above FCC news release. Here is the full text:

“I am thrilled that Congresswoman Anna Eshoo, Congressman John Shimkus, and Congressman Mike Doyle have introduced the Federal Communications Commission Collaboration Act. If there is only one action we could take this year to reform the FCC, this should be it.

“The inability of Commissioners to get together and talk as a group makes zero sense.The statutory bar on more than two Commissioners talking together outside a public meeting has had pernicious and unintended consequences—stifling collaborative discussions among colleagues, delaying timely decision-making, discouraging collegiality and short-changing consumers and the public interest. For almost a decade I have seen first-hand and up closethe heavy costs of this prohibition.

“Elected representatives, cabinet officials, judges and just about everyone else have the opportunity for face-to-face discussion before deciding public issues. I see no reason why Commissioners of the FCC should not have the same opportunity at their disposal—especially when balanced, as this legislation is, with specific safeguards designed to preserve transparency. Reaching agreement on the complex issues pending before us is difficult enough in the best of circumstances, but is infinitely more so when we cannot even talk about them among ourselves. Each of the five Commissioners brings to the FCC special experiences and unique talents that we cannot fully leverage without communicating directly with each other.

“The Federal Communications Commission Collaboration Act is a prudent, balanced proposal that recognizes the benefits of permitting the Commission to do its business collectively while maintaining full transparency of the process. This is a reform whose time has come. Ithank the Representatives for their leadership on this much needed reform and wish them successin seeing it through to enactment this year.”

What this bill, H.R. 1009, proposes is a major change to the Carter-era Government in the Sunshine Act, 5 USC 552b. The present law applies not just to FCC, but to the plethora of commissions throughout the federal government from the American Battle Monuments Commission to the Securities and Exchange Commission. But this pending bill only applies to FCC.

The commissioners are allowed to meet in closed meetings for certain subjects under the terms of 5 USC 552b(c). Allowed subjects include personnel matters, ITU conference preparation, and “internal personnel rules and practices of an agency”. While such meetings were infrequent but recurring when I joined FCC in 1979, I do not recall any in the past 2 decades.

FCC and other regulatory commissions are required to meet at least once a month. For more than a decade FCC has just met this minimum requirement. By contrast SEC meets twice a month and NRC meets 3 times a month.

My question for readers, if there was only one reform for FCC this year, would this be your highest priority? Note that you can post to this blog anonymously if you wish and no one, including your blogger, will know who you are.


A more thorough search of the FCC website showed that there was one closed meeting in 2000 and one in 2001. The FCC site is usually reliable as far back as 1995, so this would imply 2 closed meeting in the past 16 years.

New National Research Council Report on Spectrum Technology and Policy

With funding from the National Science Foundation, the National Academy of Sciences/National Research Council today published a report entitled “Wireless Technology Prospects and Policy Options” which” describes key wireless technology trends, their implications, and options for facilitating the introduction of enhanced and new services.” The mission of the NRC is to improve government decision making and public policy, increase public education and understanding, and promote the acquisition and dissemination of knowledge in matters involving science, engineering, technology, and health. Other technical regulatory agencies routinely ask NRC for views on key policy issues - FCC has not in more than 30 years!

The report as a whole will take some digesting I note with interest the following recommendation:

Ensure That Regulators Have Access to Technology Expertise Needed to Address Highly Technical Issues

As this report argues, spectrum policy is entering an era in which technical issues are likely to arise on a sustained basis as technologies, applications, and services continue to evolve. The committee believes that the Federal Communications Commission (FCC) would therefore benefit from enhancing its technology assessment and engineering capabilities and suggests several ways to gain such expertise:

• Make it a priority to recruit top­caliber engineers/scientists to work at the FCC, perhaps for limited terms.

• Use an external advisory committee to provide the FCC with out­ side, high­level views of key technical issues. (Indeed, in the past, the FCC convened the Technology Advisory Council to play just such a role.)

• Add technical experts to the staff of each commissioner.

• Tap outside technical expertise, including expertise elsewhere in the federal government such as at the Department of Commerce’s Insti­tute for Telecommunication Sciences and the National Institute of Stan­dards and Technology (NIST), or through a federally funded research and development center.

Readers may recall that this is similar in several ways to IEEE-USA letters to FCC that have been discussed here.

Of course I find it odd that they feel FCC needs more expertise but make no statement at all about NTIA in this area. More later about this important report after some time for review.

What I Would Have Said to Pres. Obama at his Silicon Valley Dinner Last Night

Last night, President Obama had dinner in Silicon Valley with several local CEOs and VCs as shown above. Fresh from his Saturday Night Live appearance Mark Zuckerberg was one of the guests.

Oddly, I wasn’t invited even though I was just in the area last week. We do not know what was discussed other than the official statement statement dealing with “proposals to invest in research and development and expand incentives for companies to grow and hire, along with his goal of doubling exports over five years to support millions of American jobs.”

But if I was a Silicon Valley CEO or VC here is what I would have politely told the President. Capital formation for R&D in innovative wireless technologies that need nonroutine approvals, e.g. rulemaking action, is being inhibited by the FCC’s long term inability to resolve such questions on a predictable schedule or a schedule that move anything like “Internet speed”. John Muleta, former chief of FCC/WTB spoke at my Virginia Tech class recently and used the following chart comparing new technology approvals with corporate merger (“M&A”) approvals. Both are complex and difficult.

While new technology approvals theoretically are governed by Section 7 of the Communications Act, shown at right, for almost 30 years now the Commissio
n has tried to dodge this requirement on a consistent basis. In support of the President’s “Startup America” initiative, the Patent and Trademark Office will allow innovators to ask for 1 year turnaround on patent applications. FCC has a longstanding “Informal Timeline” for nominal 6 month deliberation on merger approvals and meets it very well. Shouldn’t it handle its Section 7 mandate as well as it handles mergers and comparable to PTO’s new fast track for patents?

This week the White House proposed The Wireless Innovation (WIN) Fund to provide $1.0 billion to NSF over the next five year for research on experimental wireless technology testbeds, more flexible and efficient use of the radio spectrum, and cyber-physical systems such as wireless sensor networks for smart buildings, roads, and bridges as well as $15.0 million in FY2012 for Enhancing Access to the Radio Spectrum (EARS) that will support research into new and innovative ways to use the radio spectrum more efficiently. The papers I read indicate that generally the federal government is not looking for new spending opportunities and any such spending would be more effective if there were similar private investment - the very thing that is inhibited by FCC’s poor track record in resolving new wireless technology issues.

Interior Implements White House's Scientific Integrity Policy:
How About FCC and NTIA?

Washington Post columnist Ed O’Keefe published an article today about the Department of Interior’s implementation of the White House’s scientific integrity policy which has been a recurring theme here.

This policy states

The public must be able to trust the science and scientific process informing public policy decisions. Political officials should not suppress or alter scientific or technological findings and conclusions. If scientific and technological information is developed and used by the Federal Government, it should ordinarily be made available to the public. To the extent permitted by law, there should be transparency in the preparation, identification, and use of scientific and technological information in policymaking. The selection of scientists and technology professionals for positions in the executive branch should be based on their scientific and technological knowledge, credentials, experience, and integrity.

Now, a lot of the FCC’s jurisdiction is nontechnical - think of the famous ‘wardrobe failure” - and even some of the technical jurisdiction in spectrum management involves trades between costs of new service with respect to technical impact on existing spectrum users and benefits of the new service. But in spectrum policy I am reminded of what a distinguished telecom lawyer once told me, “Some questions actually have (objective) answers”.

For example, as FCC and NTIA tool up for a battle over LightSquared’s ATC application, it will be very tempting for opponents of it to just say that it will cause GPS interference inevitably. Now a poorly designed MSS/ATC system in the band adjacent to the GPS L1 signal will clearly cause interference just as a poorly designed TDD AWS-3 system next an FDD AWS-2 system will cause interference. But the key policy issue is whether clever engineers can come up with a set of design details to reduce this interference to an acceptable level comparable to naturally occurring outages. This should be considered in the context of the above quote from the White House, not in smoke filled rooms without the potential for objective review of the analysis - unless it is necessary to keep certain details of the public record to protect properly classified information. But even in that case, FCC or NTIA could ask for an independent review by a contractor with clearances or could set up a technical advisory committee with cleared members similar to the Defense Science Board.

There is anecdotal evidence within FCC that the famous FleetCall waiver that allowed the creation of NEXTEL and the resulting 800 MHz interference to public safety was identified by the technical staff of WTB’s predecessor as having an interference risk and that the staff urged an explicit condition on the waiver. We now know what happened when the waiver was granted without this condition. Had a scientific integrity policy been in place at that time, the resulting public safety interference could have been resolved quickly.

So why don’t FCC and NTIA emulate the progressive move by Interior in implementing the President’s scientific integrity policy!

[Your blogger has no financial interest or relationship with LightSquared]


White House Announces
"Startup America":
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.

Maybe FCC could also have an “Enhanced Examination Timing Control Initiative” to give technical innovators a chance to get rulings on their technology before their working capital exsanguinates? Patents are nice in that they make business plans more profitable, but for many wireless technologies FCC controls something even more critical for entrepreneurs: market access and cash flow.

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.

Excellence in Engineering: 2nd FCC Staffer Earns MSEE

Previously we reported that John Kennedy of OET received an MSEE under the FCC’s Graduate Degree Program that began under Chmn. Powell at the request of former OET Chief Ed Thomas. Since the FCC budget historically has had a bipolar personality-like swings between highs and lows, Ed asked for permission to start a long term program with the understanding that those admitted would have priority access to whatever training funds are available in a given year. Members of the program are accepted from all parts of FCC and are expected to take graduate courses in EE on a regular basis with the objective of an MSEE degree.

Most other federal agencies that employ large numbers of engineers fund MS programs for new hires as to most private employers. Thus the existence of this program is key for FCC to stay competitive in hiring engineers. FCC had a similar program in the 1970s but it died during the Reagan era budgets

Recently, Benham (Ben) Ghaffari of OET became the second FCC staffer to receive this degree. Congratulations to Ben on this accomplishment and we should all hope this worthwhile program survives the inevitable budget crunch coming to FCC soon.

The first degree recipient, John Kennedy, was recently promoted to Chief, Spectrum Coordination Branch, OET Policy and Rules Division - the group that is the day-to-day interface with NTIA and IRAC.

Wireless Innovation and Interference

Here is my statement from the November 12 seminar
The Unfinished Radio Revolution:
New Approaches to Handling Wireless Interference

cosponsored by Silicon-Flatirons, IEEE-USA, CTIA, New America Foundation, and FCBA.

Innovative wireless communications is important not just for wireless operators and manufacturers, but also for firms in other industries that depend on the latest technology for improving their productivity and for new non-telecom firms such as Amazon, E-bay, Netflix that are enabled by cutting edge technology. It is key to the health of the US economy.

Most other industrialized nations use a state capitalism form of spectrum management and wireless industrial policy that uses Soviet-style economic planning

In contrast, since late 1970s FCC spectrum policy has focused on technical deregulation and market forces to stimulate innovation and growth. This year is the 25th anniversary of both Qualcomm’s founding and the regulatory basis for Wi-Fi and Bluetooth – all products of this deregulatory ferment.

Spectrum deregulation has a core goal of interference prevention:

  • Assuring incumbents of realistic expectations so as to stimulate their investment AND

  • Assuring innovators and entrepreneurs a transparent and timely red light/green light system for determining if innovative systems will cause “harmful interference”

FCC got it right in the Wireless Innovation NOI when it said

The viability of spectrum access for new radio services often centers on whether the new service may cause harmful interference to incumbent services. This can lead to delays through protracted rule making proceedings that can create uncertainty and discourage investment.

In the Northpoint/MVDDS, UWB, and AWS-3 proceedings we saw deliberations of harmful interference that not only violated the timeliness requirement of Section 7 of the Act but were totally inconsistent with
any plausible business plan of a startup entrepreneur. Today’s capital markets make investments for such innovative technology almost impossible due to the excessive regulatory risk resulting from FCC’s slow deliberations.

Qualcomm got its key regulatory decision for CDMA 2 years after its founding. Such decisiveness in innovative spectrum policy is impossible today
ectrum policy determination by fiscal exsanguination of entrepreneurs is both ineffective and inconsistent with our form of government.

If we can’t get spectrum deregulation and interference policy correct, the USA might be better off just joining CEPT and taking an active role in their spectrum management system - based on Soviet style economic planning.

Basic technical Issues in defining radio rights or interference

Receiver Standards
Explicitly stated expectations for adjacent channel rejection and intermodulation vulnerability, e.g. 3rd order intercept point, are urgently needed for each radio service in order to resolve harmful interference issues in a timely way. These standards should not be mandatory - which is just as well since FCC in general does not have such jurisdiction at present.

I/S Protection at Receiver
Made simpler by digital convergence. In most cases I/S of - 6
to -10 db is adequate, former mixed analog environment was more complex. However, CDMA systems have more complex concerns since interference translates into capacity. But environment noise levels set a natural baseline

I/S Field Strength at the Antenna vice I/S Power at the Receive
MIMO technology is increasingly practical so in many cases some rejection by antennas should be considered

Propagation Models
Much of the controversy over TV white space results from the use of a 1966 precomputer age propagation model that FCC itself has said has severe limitations in its applicability. While propagation is an esoteric field, inappropriate models can warp any spectrum rights regime

MCL vice Stochastic Modeling
Incumbents prefer that the worst case MCL (minimum coupling loss) scenario is decisional. While FCC has a limited record of using stochastic modeling , both FCC and NTIA have no clear policy in this key area. However, in Europe, stochastic modeling is often used

Acceptable Interference Statistics

How much interference is acceptable? In the MVDDS decision FCC used naturally occurring rain outages as a baseline and decided to accept a 10% theoretical increase – something not noticeable in practice. FCC and NTIA should consider the general issue that naturally occurring outages in space and time should be considered as a reference point although the allowed increased should be determined on a case by case basis

Who should make detailed spectrum rights proposal for public consideration?

It is key that FCC and NTIA work in parallel here to develop consistent policies

Doubtful that present FCC or NTIA can develop a level playing field interference protection scheme that deals with both incumbents and new entrants fairly
In the 1970s, FCC - like other federal regulatory agencies with key long term technical policy dilemmas - asked National Academy of Sciences/National Research Council to propose regulatory framework for what later became Parts 25 and 68 – at the time exceedingly controversial issues opposed by powerful interests. The resulting C band terrestrial/satellite sharing and telephone interconnection resulted in tremendous economic growth and were emulated all over the world.

FCC and NTIA should consider asking NAS/NRC to repeat its past role – and the role it regularly plays for other agencies – to draft a specific framework for determining interference rights that balances all interests. It will never be an objective definition, but a framework that speeds up the present process will increase certainty for BOTH incumbents and innovators.

Your blogger’s detailed paper on this topic

ex parte R&O on Circulation

A recent review of the FCC’s Items on Circulation page revealed the surprising news that the ex parte rulemaking, Docket 10-43, was on circulation on the 8th Floor. While most of the FCC’s decisions are actually handled on circulation without public “discussion” at monthly meetings, it is unusual for such an initiative that was launched with great fanfare of transparency improvement to be suddenly shifted to the obscurity of circulation.

While the supporters of smoke filled rooms may be cheered by this move, those of us hoping that the new commissioners would keep to their pledges of transparency improvement are concerned.

Report on Staff Professions in National Telecom Regulatory Agencies

Steve Crowley’s blog has a new post entitled “Staff at the FCC: How Many Lawyers, Economists, and Engineers?” that describes a recent report from the German consulting firm WIK-Consult GmbH (a spinoff from the former W. German Bundespost/PTT). The report, Drivers and Effects of the Size and Composition of Telecoms Regulatory Agencies was written by J. Scott Marcus, a former senior FCC staffer and no relation to your blogger, and Juan Rendon Schneir.

The report is based on data from the following regulatory agencies: Canada (the CRTC), France (ARCEP), Germany (the Federal Network Agency, or BNetzA), the Netherlands (OPTA), New Zealand Commerce Commission (NZCC), Peru (OSIPTEL), Spain (CMT), Sweden (PTS), the United Kingdom (Ofcom) and the United States (FCC). They then tabulate the professional backgrounds of the staff at each agency.

One of the problems with this type of analysis is that the 10 agencies examined have overlapping but different jurisdictions. The Canadian CRTC only has 7 engineers because if doesn’t deal with spectrum policy which is mainly in the jurisdiction of Industry Canada. The French ARCEP is more like the old FCC Common Carrier Bureau - it also has some postal functions - and French spectrum policy is more in the control of ANFR. Thus it is difficult to compare apple with apples, not oranges.

Comparison of professions in national regulators

Based on a FOIA request to FCC, WIK found out that FCC now has 268 engineers, 55 economists and 542 lawyers. Actually I was surprised by this, because throughout most of my career engineers were the most numerous professional group although few were in policy positions. The WIK researchers then got the graph shown at the top of this post which compares ‘senior managers” among the 10 agencies. I suspect OET Chief Julius Knapp is the only engineer senior manager considered in the report, emphasizing the imbalance with respect to regulators in other countries. The WIK report comments “Particularly striking was the skills distribution among senior managers in the United States, where of 23 senior managers who were categorised for this study, 22 were lawyers, only one was an engineer, and none were economists.”

The report makes interesting reading as FCC struggles with how to deal with the technical issues that are at the core of many key telecom issues.


How About Some Transparency in the Handling of Petitions?

The right to petition the federal government is one guaranteed by the 1st Amendment and the APA (5 U.S.C. 553(e)). FCC has implemented this requirement with 47 C.F.R. 1.401. But all this means nothing if petitions fall into an administrative black hole where they can not be seen, let alone acted on!

The top of this post is a January 2010 FCC public notice (PN) asking for comment on 3 petitions for rulemaking and 2 petitions for declaratory rulings. As the annotations in red indicate, the oldest petition involved was almost 5 years old when the PN was released. (As can be seen in the dates above, all these petitions arrive prior to the current Chairman. This is a longstanding problem going back more than a decade.)

I did some discreet inquiries after this PN was issued and was surprised to find out that 8th Floor staffers do not have routine access to lists of petitions that have been filed or even petitions that are siting with action x months after filing. It as not even clear if the Chairman’s Office has routine access to this information. Petitions apparently go to bureaus and offices and just sit around until someone decides to act on them - or not. One always has the options of going to the District Court and asking for a writ of mandamus, but that is possibly the only option. Since the existence of these petitions can be secret, it is difficult for interested 3rd parties to find out about them and try to pressure/embarrass the Commission into acting.

Some modest suggestions:

1. The Commission create an internal tracking systems for such petitions and report all filings to all commissioners within a month of filing.

2. The Commission create a public tracking system, analogous to the FCC Items on Circulation webpage, that documents all petitions more than 3 months old that have not been acted on and makes the text available for public inspection. This need not be a PN requesting comment, just an acknowledgement that the petition has been filed and is under review.

"The FCC should be a model of openness, transparency, and a fair, data-driven process."
Julius Genachowski's confirmation hearing for FCC chairman before the Senate Science, Commerce, and Transportation Committee
(Emphasis added)


While ex parte Rulemaking & Enforcement Complaint Linger in Limbo, MSTV Alternates Between Compliance and Its Old Ways

47 C.F.R. 1.1206(b)(2): Oral presentations. A person who makes an oral ex parte presentation subject to this section that presents data or arguments not already reflected in that person's written comments, memoranda or other filings in that proceeding shall, no later than the next business day after the presentation, submit to the Commission's Secretary, an original and one copy of a memorandum which summarizes the new data or arguments. (Emphasis added)

Previously we have written about our numerous complaints about MSTV’s past flagrant violation of the Commission’s ex parte rules (significantly more than any other party we are aware of), the FCC/OGC staff’s preference to dismiss such complaints out of hand in an apparently arbitrary and capricious manner, and our pending
Petition for Review on this matter that has been pending in 8th Floor circulation since 02/25/2010. (In fairness to the OGC staffers involved, they may just be acting at the behest of political appointees.)

Curious readers might be wondering how MSTV is behaving during the pendency of this matter. Have they cleaned house and become perfectly in compliance as NAB has been for a long time? Or have they noticed that in the more than 3 years since these original complaints were filed that they have escaped all criticism, let alone any penalties?

The answer: A little of both as seen below.

MSTV has returned to somewhat near the mainstream of compliance, but not the letter perfect level of NAB. They now often file ex parte statements the same day as for the meeting as shown at left. Most filings are now made within the deadline of Section 1.1206(b)(2).

However, March was a bad month for these fabled protectors of the rights of large TV broadcasters against the advocates of broadband for all. In March all the following filings were late:


Is there at the very least a “by your leave” apology for these late filings, perhaps blaming a dog for eating some paper? Not that we can find so far.

Here are some other late MSTV filings within the past year:


[Note that some of these filings may be duplicates filed repeatedly. However, I do not believe that FCC Rules permits multiple late filings of the same document as a remedy for lateness. Indeed, multiple filings of the same document complicates the work of both the Commission and other parties unless they contain a correction of a previous error or omission. It is customary in FCC practice to state that is a filing is a correction of a previous filing. None of the above filings give any indication that they are corrections]

Thus out of 101 ex parte filings in the past year, a few joint with the letter perfect NAB, MSTV, the subject of a longstanding ex parte complaint, was apparently late on 13 -- even while their previous performance was under review at FCC. But since MSTV has never received as much as a warning note from the Commission staff on previous apparent violations, they probably have logically assumed that they are exempt from compliance. It is the clear Pavlovian conclusion from FCC behavior.

Thus it is interesting to read a 7/16/10 comment, actually a late filed comment, from the FCBA Access to Government Committee that says,

While the FCC should enforce its rules, including the ex parte rules, there is no demonstrated need for increased sanctions or a dedicated effort to enhanced enforcement. The FCC should be able to continue to address any violations within its existing remedies.

FCBA guys: It is clear that in the 30 years since the FCC adopted ex parte rules it has consistently shown zero interest in enforcing them. Can you point to any enforcement action FCC has ever taken?

The FCBA group also states

For instance, the NPRM asks for comment on requiring staff filings following ex parte presentations. In our experience, this would be burdensome to staff and would provide a disincentive for staff members to meet with the public. While staff members should be free to submit an ex parte notice, they should not be required to do so.

FCBA guys: Yes there are advantages of the unique system FCC has with respect to FCBA members getting quick appointments with FCC staff. But in this day of e-mail is that so important? Every other federal agency that does rulemaking uses an approach where the staff summarizes the ex parte meeting. If you want the current system to continue shouldn’t you help FCC increase its compliance with respect to your membership? Continued FCC tolerance of the few bad actors could ruin it for all! There appears to be a “code of silence” among the FCBA membership about ex parte complaints not withstanding the requirements of §1.1214

Sec. 1.1214 Disclosure of information concerning violations of this subpart.
Any party to a proceeding or any Commission employee who has substantial reason to believe that any violation of this subpart has been solicited, attempted, or committed shall promptly advise the Office of General Counsel in writing of all the facts and circumstances which are known to him or her.(Emphasis added)

Does the FCBA leadership want us to believe that their their members in the past 30 years have never had “ substantial reason to believe that any violation of this subpart has been solicited, attempted, or committed”? I am willing to believe that compliance might be in the 90% range, but it isn’t perfect.

Related MSS filing in ex parte rulemaking (Docket 10-43)


FCC Significantly Improves in OPM Employee Survey

Monday, FCC issued a press release on the results of the 2010 OPM Viewpoint Employee Satisfaction Survey that quoted Chairman Genachowski as saying,

“I am delighted that the FCC has been recognized as the ‘most improved’ federal agency. The survey results reflect the hard work being done throughout the agency to make the FCC a model of excellence in government.

"The FCC’s reform agenda, which builds on the impressive strides made by Commissioner Copps as acting chairman, includes creating new opportunities for employees to provide feedback; improving employee communication through technology and new media; and focusing on leadership development and opportunities for employees. I applaud the work of the FCC management and staff and look forward to more great things to come."

Long time blog readers may recall that this survey, previously called the Federal Human Capital Survey, has been a recurring topic here. A topic in which FCC has done extremely poorly in the past.

In May 2009 we wrote,

“FCC ranked 28th out of 32 ranked small agencies. Its score of 55.0 also put it lower than all the large agencies except the Department of Transportation. The only small agencies scoring worse than FCC were: International Boundary and Water Commission, Selective Service System, Broadcasting Board of Governors, and Federal Labor Relations Authority. Also (only) 20 out of the 216 ranked "agency subcomponents" ranked lower than FCC including FAA, FEMA, TSA, and FCC's neighbor - Bureau of Engraving and Printing.

NTIA was not treated as a subcomponent so there is no data on it.”

Earlier we described how the Commission’s ancien regime had dodged early OPM surveys even though they were a well publicized and admirable Bush 43 Administration initiative. Well FCC is now fully on board and is moving up in the ratings, although Chmn. G. did overreach a bit on the “ ‘most improved’ federal agency” a bit. As the image above from the report shows, OPM only identified FCC as one of 11 agencies with the “highest increases since 2008”.

The raw data shows the very positive improvement since the former chairman left. On the questions “I feel encouraged to come up with new and better ways of doing things”, in 2008 52% of FCC staffers either strongly agreed or agreed, now it is 62%.

On “My work gives me a feeling of personal accomplishment”, formerly 60% either strongly agreed or agreed, now it is 70%.

On “I can disclose a suspected violation of any law, rule or regulation without fear of reprisal”, there was a big jump: formerly 45% either strongly agreed or agreed, now it is 67%. Perhaps this points to the need to have a credible long term inspector general at FCC - a recurring theme in this blog. While it is laudable that there is great improvement here, what can be done to prevent a low score in the future?

There were also large increases in positive responses to both “Arbitrary action, personal favoritism and coercion for partisan political purposes are not tolerated.” and “Prohibited Personnel Practices are not tolerated” making one wonder what was really going on under the ancien regime? Perhaps another indication of what happens when there is not a credible IG in an agency or perhaps this is why the previous chairman did not want a credible IG!

Finally on “I have a high level of respect for my organization’s senior leaders” formerly 38% either strongly agreed or agreed, now it is 62%!

So congratulations to Chmn. Genachowski and the new team on this major turn around!


So When are the Comments Actually Due?

An interesting, to me at least, public notice appeared on the endlessly cluttered FCC website today. At first glance its gist is quite simple:

On May 20, 2010, the Consumer & Governmental Affairs Bureau of the Federal Communications Commission (Commission) released a Public Notice (Notice) seeking to gather information on the feasibility of instituting usage alerts and cut-off mechanisms similar to those required under the European Union (EU) regulations that would provide wireless voice, text, and data consumers in the United States a way to monitor, on a real-time basis, their usage of a wireless communications service, as well as the various charges they may incur in connection with such usage (e.g., roaming services, voice service “minute plans,” text message plans). Specifically, the Commission sought comment on whether technological or other differences exist that would prevent wireless providers in this country from employing similar usage controls as those now required by the EU.

The Notice was published in the Federal Register on May 20, 2010. Therefore, comments are due on July 6, 2010, and reply comments are due on July 19, 2010. Comments should be filed consistent with the instructions provided in the Notice.

Great! But what about the other umpteen ongoing FCC proceedings? How do we find out their comment dates? The bureaucratic response is to keep searching the Federal Register for the docket number and the due date which relative to the FR publication date- maybe a week after FCC release of the document, maybe a month later. Another way is the regulations.gov website which isn’t mentioned on the FCC homepage. It has many, perhaps all, the comment dates of pending FCC proceedings.
However, it does not appear to give reply comment dates directly since reply comments are not required by law and some agencies don’t use them. However, this site does give you access to the Federal Register notice of the docket where you can look for the dates.

At one time OET tried to keep track of the comment dates of its dockets in order to ease the task of the public. But this web page is now way out of date and other parts of FCC never even tried to help the public with this task until FCC/CGAB issued this PN.

So rather than increase the clutter on the FCC homepage with special PNs on topics of special political interest, why not have a general solution to this problem, possibly like a generalization of the OET attempt?

Do the Telecom Policy Agencies Need a "Steven Chu"?

The above item appeared recently on Scott Harris’ Facebook page. Scott worked at FCC under Chairman Hundt as the original Chief, International Bureau. He was one of the finest public servants I have ever worked with, always focusing on the bottom line public interest issues. After leaving FCC he had his own law firm for many years, but now is back in public service as General Counsel of the Department of Energy.

The article he is recommending is in The Atlantic and is mostly an interview with Secretary of Energy Steven Chu showing his hands on involvement in brainstorming approaches to the Gulf oil spill. Secretary Chu is not your ordinary political appointee as his Wikipedia bio shows:

Steven Chu is an American physicist and currently the 12th United States Secretary of Energy. Working at Bell Labs and Stanford University, Chu is known for his research in cooling and trapping of atoms with laser light, which won him the Nobel Prize in Physics in 1997. At the time of his appointment as Energy Secretary, he was a professor of physics and molecular and cellular biology at the University of California, Berkeley and the director of the Lawrence Berkeley National Laboratory, where his research was concerned primarily with the study of biological systems at the single molecule level.

As the interview in The Atlantic shows, he clearly has a hands on understanding of his agency’s technology. Which started me wondering, in the 3 telecom policy agencies, FCC, NTIA, State/CIP why don’t we have at least one person vaguely comparable to Steven Chu as a political appointee since telecom also has many highly technical aspects? I figure there are 5 presidential appointees at FCC, 2 at NTIA, and 1 at State/CIP. In addition there are at least a dozen “noncareer”/political senior appointees between the 3 agencies.

Comm. Sterling
Now in ancient history, FCC has some commissioners who were techies. The legendary George Sterling, Chief of the FCC’s Radio Intelligence Division during World War II, served as a commissioner from 1948-1954. But in the past several decades none of the 3 telecom policy agencies have had any political appointees with a serious technical background. (Chairman Ferris was a physics major in college, but never worked in a technical area.)

It is not that the current Administration’s appointees are any worse than the past few decades. Indeed, one could argue that Chmn. Genachowski has more high tech business experience than any of his predecessors. But I don’t see any National Academy of Sciences/National Academy of Engineering members or even almost members among all 3 agencies’ twenty or so senior political appointees.

Technical policy is an integral party of telecom policy. Isn’t there room for at least 1 techie among all these political appointees? Secretary Chu shows that techies can be political appointees and succeed. Why limit this to energy policy?


A Tale of 2 Regulatory Commissions

I posted yesterday on Public Knowledge’s blog, a post dealing with my recent impressions of the annual Nuclear Regulatory Commission meeting for the public and its regulatees. It is fascinating to me how 2 different regulatory commissions take such different approaches to interacting with the public and transparency.

While I worked at FCC, a colleague used to criticize me for comparing FCC to NRC. But I guess it is OK now that the ex parte NPRM actually compares the two agencies in that area. Hope you surf over to the PK blog and see what I wrote there.

The PK post also includes a suggestion I made on the reboot.FCC.gov site to require conferences that host key FCC speakers to provide the FCC website with videos of the presentations in a timely way. Feel free to go to that site and blast the idea as hopeless naive or even possibly support it.

FCC ex parte NPRM - Initial Thoughts

In my ex parte complaint Petition for Review (that the FCC has never acted on in over a year), I quote former Commissioner Abernathy who said to an ITU meeting

“I believe that transparency is best achieved through the creation and publication of clear rules. However, for the regulatory regime to be successful, these rules must also be strictly enforced. Based on personal experience, I know that the U.S. regulatory model has only been successful when the FCC has enforced its rules vigorously. Failure to enforce rules sends the inappropriate signal that companies may engage in anticompetitive behavior or other unlawful conduct with impunity.”

Let me provide for potential commenters some facts that are not in the NPRM.

1. In 2009, there were 6070 ex parte notifications filed at FCC. The numbers for 2008 and 2007 were 10,046 and 7,960 respectively. I assume that the drop in 2009 was due to both the inevitable drop in activity with major changes at the Commission and the distraction of the DTV transition.

2. I believe that the Commission’s ex parte rules were heavily influenced by Recommendation No. 77-3 of the former Administrative Conference of the U.S., formerly codified as 1 C.F.R. 305-77.3. The HBO Case mentioned in Chmn. Genachowski’s statement was in March 2007 and the ACUS recommendation was made in October of that year. The ACUS recommendation stated “Agencies should experiment in appropriate situations with procedures designed to disclose oral communications from outside the agency of significant information or argument respecting the merits of proposed rules, made to agency personnel participating in the decision on the proposed rule, by means of summaries promptly placed in the public file, meetings which the public may attend, or other techniques appropriate to their circumstances.”

3.While the NPRM mentions ex parte policies at 3 other commissions, it fails to mention the key fact that parallel policies are in place at all regulatory agencies, be they independent agencies like FCC or Executive Branch agencies. But only FCC has the system where the outside party files the summary that goes on the public record. Thus in the 30 odd years that ex parte procedures have been used for agency rulemaking, no other agency has ever adopted the FCC’s approach. Perhaps the Commission should ask why?

4.Finally, the NPRM states in para. 32 “Regardless of what amendments are adopted in this proceeding or when, we intend to place greater emphasis on enforcement against impermissible ex parte contacts.” This implies there has been some previous emphasis on enforcement. A fairer statement is that enforcement has been ignored for decades. At the October public workshop the staff stated that it dealt with complaints by calling the party at issue and telling them not to do it again. This is reminiscent of the comedy skit in which an unarmed British policemen says to a fleeing robber “Stop or I’ll say stop again”. As far as I can tell, the Commission has NEVER taken ANY ex parte enforcement action. While the NPRM mentions the possibility of “monetary forfeitures”, I doubt that it has legal authority to do so. However, it does have the authority - unused to date - to forbid future oral ex parte by the guilty party and that should be more than adequate IF there is ANY interest in enforcing these rules.


Your blogger’s Petition for Review has finally made it to circulation on the 8th Floor more than a year after it was filed. This was not a very complex matter although it may be the first time ever the commissioners had to formally consider enforcement of their rules.

Stay tuned for the outcome. How much longer could it take?

Ex Parte Reform Proposal at FCC

On February 18, FCC finally adopted an NPRM for changes in its ineffective ex parte system. Faithful readers will recall that this has been a long term theme here. The good folks at Public Knowledge have produced a video on the topic:

Oddly, MSTV has nothing on their website yet on the topic.

Ex parte Reform Proposals Imminent

At left is the Sunshine Notice for the upcoming 2/11 Commission meeting. The summaries of the first 2 items are:

- The Commission will consider a Notice of Proposed Rulemaking to enhance the efficiency, openness, and transparency of the Commission’s proceedings by improving and modernizing certain organizational and procedural rules.

- The Commission will consider a Notice of Proposed Rulemaking to improve the transparency and effectiveness of the FCC’s decision-making process by reforming the ex parte rules.

So it looks like the new team is making good on their promises for reform in ex parte and other procedures. Faithful readers may recall that ex parte reform and transparency have been frequent topics here. Who knows, they may even act on your blogger’s Petition for Review on an ex parte issue that has been pending for 17 months - even though it is mentioned nowhere on the FCC website.

FY 2011 Budget & Spectrum

Today the President’s FY 2011 budget was unveiled throughout the government. So let’s look at how spectrum was affected.

In the FCC’s budget we set a modest increase of the total agency budget from $428M to $443M (Grand Total Proposed Budget Authority) and staff increase from 1,905 to 1,980.

Spectrum No Longer a Strategic Goal

While not explicitly stated, the FCC’s strategic goals have changed and this will affect the resources for spectrum activities. For several years up to and including the FY10 budget the strategic goals of FCC were: Broadband, Competition, Spectrum, Media, Public Safety, and Modernize. This year they are: Broadband, Consumers, Competition and Innovation, Continual Improvement, Public Safety and Homeland Security, and International. Guess what’s missing? This means that spectrum also does not have Performance Commitments and Metrics in the budget and is likely to get less management attention except in the international area where it is explicitly part of the International goal. No doubt the well connected satellite industry will get its attention and others may get crumbs. We will see.

There are two proposed legislative changes related to spectrum:

Spectrum Auction Authority
The Administration proposes to extend indefinitely the authority of the FCC to auction spectrum licenses, which will expire on September 30, 2012. The additional offsetting receipts associated with this permanent extension are estimated to total $1.6 billion through 2020.
This proposal supports the Administration's efforts to foster new wireless broadband technologies by making new spectrum available. Specifically, the National Telecommunications and Information Administration of the Department of Commerce will collaborate with the FCC to develop a plan to make available significant spectrum suitable for both mobile and fixed wireless broadband use over the next ten years. The plan will focus on making spectrum available for exclusive use by commercial broadband providers or technologies, or for dynamic, shared access by commercial and government users, on either a licensed or unlicensed basis.

Spectrum Licensing User Fee
To promote efficient use of the electromagnetic spectrum, the Administration proposes to provide the FCC with new authority to use other economic mechanisms, such as fees, as a spectrum management tool. The Commission would be authorized to set user fees on unauctioned spectrum licenses based on spectrum-management principles. Fees would be phased in over time as part of an ongoing rulemaking process to determine the appropriate application and level for fees. Fee collections are estimated to begin in 2010, and total $4.8 billion through 2020.

The first one puts legislative pressure on NTIA to find more spectrum for the commercial community. One can hear the IRAC protests already. The second means that ALL spectrum users (presumably excepting only noncommerical uses such as public safety) may have to pay for spectrum access. At present chosen groups, like Part 74 licensees, get spectrum for free while others pay for it. Marcus’ First Law of Spectrum Economics: ‘If spectrum is free, then more spectrum is always cheaper than efficient technology”.

The staffing in OET was 84 in FY 09, is budgeted at 90 now, and is proposed to increase to 96 in FY 11. (By contrast when I was hired in 1979, I was #155. Some functions have moved from OET, but that does not account for all this drop.)

Spectrum inventory work is in the budget:

Spectrum Inventory and Broadband Mapping Data: $2,400,000
Spectrum Inventory: The spectrum inventory initiative is designed to enable user-friendly access to information regarding spectrum bands and licenses, including those that may be suitable for wireless broadband deployment. The FCC’s spectrum inventory activities will focus on providing general information about commercial and non-commercial use of spectrum bands, by users other than federal users, in the mobile range of 225 MHz to 3.7 GHz, as well as more detailed information about bands of particular relevance to broadband. The public will be able to easily browse spectrum bands, search for spectrum licenses, produce maps, and download raw data for further analysis. Through a single FCC portal, users will be able to access basic information on licenses (e.g., licensee name, contact information, frequency bands) as well as descriptions of frequency bands and allocations. Further, the spectrum inventory will include the capability to search for licenses based on commonly recognizable names of companies (e.g. AT&T, Verizon, etc.), and the amount of spectrum held by licensees on a county-by-county basis for many types of licenses. The initiative contemplates continuing improvement and augmentation of the spectrum inventory over time with inclusion of more comprehensive data. The spectrum inventory is intended to assist in ongoing spectrum policy planning and decision- making, promote a robust secondary market in spectrum, and improve communications services in all areas of the United States, including rural and underserved areas as well as tribal lands.

There is a new public safety initiative that is not entirely clear at this time:

Emergency Response Interoperability Center: $1,500,000
The long term mission of the Emergency Response Interoperability Center (ERIC) will be to ensure the operability and interoperability of public safety wireless broadband communications capabilities. The funding provided will be to establish ERIC so that it is operational in advance of the deployment of the public safety broadband wireless capabilities. One function of ERIC will be to establish an advisory function for members of the public safety community and other federal government agencies, including [FCC], DHS and NTIA[, and will work in close coordination with the Department of Homeland Security’s Cyber Security and Communications Directorate]. The long term goal of ERIC is to establish a public safety broadband interoperability communications profile including interoperability standards, authentication, encryption, roaming, priority access, application uses and interconnectivity which will be used to set baseline requirements for public safety users. In addition, public safety broadband capabilities are deployed, ERIC will resolve interoperability-related disputes between public safety entities, work with third parties (e.g., federal government, state and localities, tribal nations) on broadband infrastructure sharing, and maintain relevant databases, among other things. This important initiative will help to remedy historic barriers to public safety communications interoperability, and is a key element of next-generation public safety communications capabilities.

On the NTIA part of the budget, spectrum management staffing stays fixed at 32, although there is a 3 person increase in research at ITS in Boulder CO. This is for a program called Spectrum Access with Intelligent Networks and Cognitive Radios which is described as

The goal of this research program is to examine spectrum sharing approaches and to identify the techniques that can provide the most efficient and effective sharing of the radio spectrum through the use of “Intelligent Radios.” This research will aid the NTIA, the FCC, the telecommunications industry, and other government agencies in the design of dynamic spectrum access schemes for cognitive radio under different communication requirements. The research will also produce interference protection criteria (IPC) for all types of Federal Government radio and radar systems and provide insights and solutions for technical issues associated with spectrum sharing. Under this initiative, NTIA’s Institute for Telecommunication Sciences (ITS) will identify, evaluate, and recommend solutions for the technical issues and challenges of spectrum sharing.

Over the next five years, ITS will produce a number of publications that will provide U.S. federal agencies and commercial service providers, with interference protection criteria and evaluations with respect to various cognitive radio approaches and technologies. Several U.S. federal agencies, along with commercial service providers, will benefit from this information. The FCC and NTIA, with responsibility for spectrum management, are very interested in what cognitive radio technology has to offer and how it would affect their current regulatory scheme. The military and the public safety and emergency response communities see the benefits that this new radio technology offers, with frequency agility and/or flexibility, the ability to enhance interoperability between different radio standards, and the capability to sense the presence of interferers. Other countries and international agencies such as the International Telecommunications Union (ITU) also are looking to adopt similar cognitive radio approaches to increase spectrum utilization.

The budget says this program will “ aid the NTIA, FCC, the telecommunications industry, and other government agencies in the design of dynamic spectrum access schemes for cognitive radio under different communication requirements.”

The effect of spectrum’s disappearance as a strategic goal could be important. I hope industry and the press insist on clarifications here.

GAO 12/09 Report on FCC Management

At the end of the 2009, GAO issued a report on FCC. This is yet another of the 100 reports they have written on FCC in the past decade. This report goes into a variety of topics so it will take more than 1 post to discuss them all. Due to the timing of the report (it was based on observations from August 2008 to October 2009), it deals mainly with what the new team inherited from its predecessors including some problems that actually go back decades.

From the summary, here are some of the issues that we shall discuss today:


- FCC lacks internal policies regarding commissioner access to staff analyses during the decision-making process, and some chairmen have restricted this access. Such restrictions may undermine the group decision- making process and impact the quality of FCC’s decisions.


- In addition, GAO identified weaknesses in FCC’s processes for collecting public input on proposed rules. Specifically, FCC rarely includes the text of a proposed rule when issuing a Notice of Proposed Rulemaking to collect public comment on a rule change, although some studies have noted that providing proposed rule text helps focus public input.


- Additionally, FCC has developed rules regarding contacts between external parties and FCC officials (known as ex parte contacts) that require the external party to provide FCC a summary of the new information presented for inclusion in the public record. However, several stakeholders told us that FCC’s ex parte process allows vague ex parte summaries and that in some cases, ex parte contacts can occur just before a commission vote, which can limit stakeholders’ ability to determine what information was provided and to rebut or discuss that information.


The report raises questions about the objectivity of technical analysis from my former OET colleagues:
One of the commissioners emphasized that without reliable unbiased information, it can be difficult to make good decisions on scientific and technical questions. Additionally, three trade associations also expressed concern about the independent nature of OET, with one indicating that there is no way to tell if the information coming from OET is independent of the chairman or the best of several options. (p. 18-19)

On the first point the report does a good job comparing FCC with other regulatory commissions (FTC, FERC, and NRC)on the issues of the chairman’s relationship with the other commissioners. FTC and FERC, like FCC, have no explicit rule dealing with commissioner access to staff information, yet have had no problems. NRC’s legislation, though, has explicit provisions for information sharing. The report describes NRC’s procedures on commissioner access to information as:
Requiring that draft and final analyses by NRC staff are simultaneously provided to all commissioners, including the chairman.

Establishing that each commissioner, including the chairman, has equal responsibility and authority in all commission decisions and actions, and has full and equal access to all agency information pertaining to commission responsibilities.

Balancing commissioner access to staff analyses with the ability of the chairman to direct resource expenditures. For example, although individual commissioners can request information or analyses from NRC staff, if the request requires significant resources to fulfill and questions of priority arise, the office or the commissioner can request the chairman resolve the matter. If the chairman’s decision is not satisfactory to the requesting commissioner or the office, either can bring the matter for a vote before the full commission.

This is very different than recent practice at FCC.


On the NPRM issue, my former OET colleagues actually have probably the best record in the agency for including rules with NPRMs. I used to joke that the former Common Carrier Bureau produced NPRMs without rules and NOIs without questions.


Faithful readers will recognize the ex parte reform has been a recurring theme here. The Commission’s 10/28/09 workshop on these issues shows that these issues are getting top level attention although there has been no substantive action yet. Indeed, our 8/25/08 petition for review of the staff dismissal of an ex parte complaint still has not been acted on and remains totally “out of sight, out of mind” on the Commission’s present website.


We will talk soon about other issues in the report. I strongly recommend that you read it as it contains a wealth of useful background material.

Reboot.FCC.gov Update

Your Blogger's Suggestions Doing Well

In the voting on the FCC suggestion site, your blogger's suggestions seem to be doing rather well.

The top suggestions so far deal are the following:

  • Require at least one FCC Commissioner to be an engineer - 30 votes
  • Get rid of the BPL - 25 votes
  • Automatically renew an Amateur Radio License for a full 10 year term when the operator upgrades - 19 votes
  • Get rid of rules that cannot be enforced such as the GMRS license requirement - 18 votes
These seem to have significant input from the personal radio crowd!  No one seemed to pay any attention to how FCC would "require at least one FCC commissioner to be an engineer".  No one seemed to notice that some engineers favored BPL

But the next highest vote is the suggestion shown at the top of the pagee.  If you agree, could you surf over to the website, signin in with either your Facebook/Google/Yahoo etc. account or you can create a new UserVoice account, and consider voting for this suggestion and others you find of value.  Better yet, input your own ideas.

 I received the following reply from Steve Crowley to a previous blog post which I shall repeat here:

"Relatedly, in September, the FCC received a Petition for Rulemaking from a proponent of wireless technologies intended to reduce cell phone use that might cause distracted driving. As far as I know there was no Public Notice from the FCC. I wonder if there have been similar filings, given the current elevation of the issue of distracted driving? Thus, I support your proposal to publish lists of all Petitions that have been filed. The Petition I am referring to can be found on the proponent's web site: http://www.trinitynoble.com/pdf/FCC_Petition_4_Rulemaking.pdf"

This complements well a suggestion by Richard Weil that I have commented on at the FCC site.  You might want to support that suggestion also.


Delay at FCC

Cost of Delay and Inaction at FCC

Docket 10-4: "FCC is Finally Moving on Signal Booster Use" Urgent Communications, 1/13/10

On January 6, FCC at long last started to take action on the long standing issue of cellular "signal boosters" or bidirectional amplifiers.  The current management can't be blamed too much for inaction because they inherited this mess and are at least taking action to start solving it.  But there are key lessons to be learned here on both FCC procedures and the cost of inaction to many different parties.

Here are some excerpts from the public notice initiating this docket:

By this notice, we seek comment on three Petitions for Rulemaking and two Petitions for Declaratory Ruling (collectively, Petitions) regarding the proper use of signal boosters on frequencies licensed under Parts 22, 24, 27, and 90 of the Commission’s Rules.
On August 18, 2005, Bird Technologies, Inc. (Bird Technologies) filed a Petition for Rulemaking to amend section 90.219 to outline specific technical and operational requirements for the use of signal boosters by Part 90 licensees.
On November 2, 2007, CTIA, the Wireless Association (CTIA) filed a Petition for Declaratory Ruling (CTIA Petition) regarding the proper use of signal boosters in Commercial Mobile Radio Services (CMRS).
On September 25, 2008, Jack Daniel DBA Jack Daniel Company filed a Petition for Declaratory Ruling seeking clarification of the Commission’s rules regarding signal boosters.
On October 23, 2009, the DAS Forum (a membership section of PCIA-The Wireless Infrastructure Association) filed a Petition for Rulemaking in response to the CTIA Petition stating that a rulemaking proceeding is needed to address the marketing, installation, and operation of signal boosters used in the Cellular Radiotelephone and Personal Communications Services.
On November 3, 2009, Wilson Electronics, Inc. (“Wilson”) filed a Petition for Rulemaking asking the Commission to commence a proceeding to amend Part 20 of its rules to establish standards for the certification of signal boosters for subscriber use on CMRS networks by developing equipment certification requirements to ensure boosters are available to the public.
So FCC has a series of petition on a technical wireless issue going back almost 5 years.  None of these have been on public notice or were even publicly disclosed by FCC.  Indeed, there was little indication other than press coverage that this issue existed.  While the CTIA petition was on its website, the other petitions were nowhere to be seen.  It is for this reason that your blogger has urged FCC to publish lists of all petitions that have been filed.  Note that this suggestion is doing rather well in the voting on the FCC reboot FCC site.  (Feel free to add your own vote!) Some quiet staff review time to decide whether a petition is redundant or not within the Commission's jurisdiction makes sense, but there should be weeks, not years!

We note that the NPSTC (a well respected federation of 13 public safety member organizations) 1/06 Newsletter had a lead article entitled "In-Building Coverage BDA Rule Changes Needed Today".  Yet the previous FCC management was unable to act.  So 2 private firms as well as CTIA and NPSTC urged Commission action years ago and nothing happened.

The recent PN says

When properly installed, these devices, which can either be fixed or mobile, can help consumers, wireless service providers, and public safety first responders by expanding the area of reliable service to unserved or weak signal areas. However, as articulated in the Petitions, improper installation and use of these devices can interfere with network operations and cause interference to a range of communication services.

This is partially correct.  But the issue is not just installation.  Some manufacturers' amplifiers are designed to prevent oscillations which are the dominant cause of interference to cellular systems.  Wilson Electronics states in its petition that all of its amplifiers have used such a design since 2006.  But because of FCC inaction this is not a universal practice.  So the result of inaction on the CTIA petition has been both the continuing sale of designs that are capable of causing interference, the loss of sales to manufacturers making better (more expensive) amplifiers, and capital formation problems for new companies that seek to make noninterferring equipment.  So it has been a lose/lose situation for everyone involved except those making cheap equipment capable of causing interference.

Of course, if CTIA and its membership had been more pragmatic and tried to negotiate a compromise with the amplifier manufacturers to ask FCC jointly for reasonable technical standards then this problem would be much closer to solution.  So there is enough blame to go around.

But the key thing to learn here is that the  3000 pages of FCC Rules deal with a highly technical jurisdiction and that they need fine tuning on a regular basis to address problems that were not considered when they were written or new technologies that might be implicitly forbidden.  This is not as exciting to the 8th Floor as other issues like broadband and broadcast ownership and content  but it also needs timely attention on a continuing basis.  The Commission must find a way to keep working on all parts of its jurisdiction all the time and not get sidetracked by the problem du jour.  So while Docket 10-4 has now started on its way to resolution, we must find a way to prevent future logjams like this.

The rest of the story ...

Reboot FCC: Initial Results of Website

Suggestion Scorecard

Last week FCC opened the public version of
reboot.fcc.gov including a call for suggestions in response to 47 issues.  Here is the scorecard of suggestions received as of10:30 AM EST 1/11.  The questions "How can the data released on FCC.gov/data be better formatted so as to be more useful to the public?" is by far the most popular.  Perhaps being first in the list is a major contributor to this lead.

In any case,
vox populi, vox dei, we hope you check up on the suggestions, vote on those that are there, and input your own.  Oddly, using your Facebook account is the easiest way to sign in to input information or to vote.  No, you can not sign in using your FCBA membership or even your FRN.  That says something about the grassroot approach being used here!

Spectrum policy is too important to be left to lobbyists and lawyers!
Get involved!

The rest of the story ...