FCC Website Update:
Search Engine Improves &
EDOCS Gets Worse

Readers may recall that I have criticized the ever chaotic FCC website in the past. Now some good news and some bad news. I have not seem announcements of any changes, the items below are personal observations.

Being positive, I will start with the good news: the search engine has improved. A while ago another blogger pointed out that the search engine could hardly find any documents with the name Kevin Martin. That seemed a little strange. But now try to search on the Chairman's name and you get 728 results! No, they didn't just rig it to find more stuff about Chmn. Martin. The new engine really is better. It can find the 2004 press release announcing my appointment as an IEEE Fellow - something that was impossible under the previous search engine.

The new search engine also clarifies its scope of search:

"Search Scope: The FCC Search Engine searches throughout the FCC's web site, including the Electronic Document Management System (EDOCS), but does not collect information from the FCC's other databases and Electronic Comment Filing System (ECFS). Information is collected from web pages and many types of documents including Word, Word Perfect, Acrobat, Excel, and ASCII Text, and is constantly updated."

While the FCC search engine ignores ECFS, it appears now that a Yahoo search - but not a Google search - will often find ECFS documents. Of course, FCC allows people to submit comments to ECFS that are not machine readable or copyable, either because they were scanned from printed copies or because they are "locked". This is a pet annoyance and an inconvenience for all involved in FCC proceedings both inside and outside the FCC.

So congratulations on the search engine improvement!

Now let's look at EDOCS itself. This is the system used to store and retrieve official FCC-generated documents in FCC rulemakings and many other - but not all - proceedings.

Here is part of the results from a search of the old EDOCS when looking for the NPRM in Docket 04-186 - "TV White Space"


I previously commented that the 15 different links are confusing. All the other federal regulatory agencies use only .pdf format. An FCC staffer sold me FCC started using .txt formats in releases when the visually disabled community complained that computer reading/speech synthesis software had problems with .pdf documents. I do not have direct knowledge, but I wonder whether that is still true for documents that are directly converted to .pdf by software. But why the .doc formats?

If you search for the Docket 04-186 NPRM using the "improved" EDOCS, you get the following


I show two different documents out of the 15 that result from a search on 04-186 because it is unclear which is actually the NPRM, even if you ignore the 15 different links for each document. It turns out that the top one is the NPRM and the bottom one is a press release. How are you supposed to know? At least the old EDOCS had an indication in the upper left corner that said "NPRM".

FCC Tries Again on D Block:
If at First You Don't Succeed, ...

At today's Commission meeting, FCC tried again on D block. The press release outlines a Second Further Notice of Proposed Rulemaking (Notice) that "seeks public comment on how the Commission should proceed with the reauction and licensing of the 700 MHz D Block spectrum while maximizing the public safety and commercial benefits of a nationwide, interoperable broadband network. The text is here (101 pages).

The 2ndFNPRM will seek comment on

• the rules governing public safety priority access to the network during emergencies
• the performance requirements and license term;
• whether to license the D Block and public safety broadband spectrum on a nationwide or regional basis;
• the various fees associated with the shared network;
• whether or not it would be appropriate for the Public Safety Broadband Licensee or any of its agents, advisors, or service providers to serve as a mobile virtual network operator to manage access and use of the 700 MHz D Block of spectrum by first responders;
• the process for the D Block licensee and the Public Safety Broadband Licensee to negotiate a Network Sharing Agreement;
• the potential for requirements that the Public Safety Broadband Licensee be a non-profit organization and that no for-profit entities, apart from certain outside advisors or counsel, be involved; and
• auction-related issues, such as whether to restrict auction participation and how to determine a reserve price.

One could say that these should have been considered before. But there was a great rush to get the D band rules out with only a few weeks between the closing of comments and the multihundred page decision. Another way to look at the problem is to say simply that the FCC's new Public Safety & Homeland Security Bureau was just too successful here. That is it marshalled the Commission's policy decision to be so much in favor of the public safety interests that no private party in their right mind would bid on the D block under the original rules. The more I read the decision, I was amazed that their was even one bidder! Did anyone with an MBA read the draft rules before they were adopted and advise the 8th Floor on the likelihood than an investor would find them attractive? In a partnership, it takes "two to tango".


The public/private partnership has to have advantages for both sides. The new notices shows that is being reexamined.

RCR's article on the new notice also mentioned that

"(s)hortly after the agency’s 5-0 vote on the D Block, Rep. Jane Harman (D-Calif.) introduced legislation to authorize $4 million to begin funding the Public Safety Spectrum Trust Corp. — the 700 MHz public-safety broadband licensee — that would partner with a winning commercial D-Block bidder under the shared wireless broadband network model."

This is a positive move that could eliminate the questionable Cyren Call funding of PSST - even though the FCC IG found no problem with it.

Interesting Spectrum News
from
"Down Under":

Asking Questions
Not Asked in US

From my friends in London's PolicyTracker I got news of some interesting spectrum developments in Australia. As we approach the 40th anniversary of Robert Kennedy's assassination, perhaps we should ask about the lack of parallel actions in the US spectrum policy community and "say why not?"

The first document is a report and request for comments/"consultation" from the Aussie regulator, Australia Communications and Media Authority (ACMA), entitled "Five-year Spectrum Outlook 2009-2014". In the past FCC has sometimes commented on such documents to the counterpart originating agency in a collegial way - don't count on it hear since FCC doesn't seem to have any specific spectrum policy of its own recently, not withstanding the references in recent FCC budgets to the mysterious "Spectrum Management Task Force" and its "new approaches to spectrum management."

The ACMA document gives a good view of where the agency sees the growing demand for spectrum and what its proposed priorities are for the next few years. It then asks for comment on them.

One general comment is that it reminds me of the ill fated attempt of the FCC's former Private Radio Bureau in the 1980s to quantify future private land mobile requirements. (The biggest outcome of this effort, oddly, turned out to be today's DTV as the broadcasters squirmed and squirmed to avoiding being victim of a spectrum grab.)

The basic problem with the PRB approach was guessing future demand for spectrum when indeed no one has a need for spectrum - people have a need for communications capacity. Communications capacity then needs spectrum, but the amount needed is a function of both available technology and demand elasticity. Just as we can't accurately forecast the GDP x years from now, we can not forecast communications demand accurately. New trends will result in communications uses we can't anticipate. Other uses, like paging, made fade away under pressure from crosselastic alternatives. New spectrum technologies arise that increase the intensity of spectrum use which rarely approaches the theoretical limits in today's applications. Finally, some technologies, such as cellular, allow higher spectrum efficiency through higher capital investment/fixed costs. The the amount of spectrum needed depends on demand elasticity issues. I am impressed with the ACMA document, but hope that commenters explore this issue. I would be glad to be of assistance if you want to discuss it.

The second document shown above is a study commissioned by ACMA on government use of spectrum. I have reported previously that the European Commission is exploring a similar issue and that neither FCC nor NTIA are too interested in asking such a question in the US context. ACMA commissioned SpectrumWise Radiocommunications Consulting in 2006 to examine the measures required to better achieve an appropriate balance between government and broader community use of the radiofrequency spectrum.

The review was intended to do the following:

• To identify the major government spectrum holdings below 31 GHz
• To describe both actual and potential uses of major Government spectrum holdings;
• To identify major spectrum holdings for which existing or potential demand indicates that the overall public benefitcould be maximised by 1) Making all or part of the holding available for non-government use, 2) Identifying increased sharing opportunities; and 3) Devolving management of major Government spectrum holdings to other Government agencies;
• To develop a strategic approach to the re-allocation of Government spectrum holdings to non-government uses;
• To review the medium and long term effectiveness of existing regulatory arrangements;
• To identify regulatory mechanisms and approaches that will assist ACMA to maximise the overall public benefit from major Government spectrum holdings;
• To examine the opportunity cost of major Government spectrum holdings in order to identify opportunities for improved charging arrangements and other incentive mechanisms

The Review identified 30 individual recommendations for further consideration, some of which are not in the sole remit of ACMA. Three of the major areas identified in the Review relate to:

• increased transparency in the use of spectrum by government bodies;
• the need for increased sharing of government spectrum; and
• increased use of market approaches to improve the management of government spectrum.

These are good concepts in any society. The UK already charges government users for spectrum access and contemplates increases the charges to marketplace value in the future. (Governments pay marketplace prices for land and fuel, why not spectrum too?)

In the present bifurcated system of spectrum policy in the US (FCC & NTIA) such an review is unlikely, especially considering the strong influence the large agencies using spectrum have at NTIA's Office of Spectrum Management where they effectively make 95% of the decisions and where the NTIA staff de facto functions as the IRAC Secretariat.

While local, state, and federal government agencies probably need more spectrum access, why should they be exempt from effective oversight on how well they use existing spectrum. Shouldn't one consider whether some of future capacity increases might come from increasing efficiency of existing spectrum? The US form of government is based on checks and balances and effective oversight. Government spectrum use should not be exempt. Both Europe and Australia are exploring new oversight, "why not"?

Pioneering 19th Century Computer Display
Opens in Silicon Valley

The Computer History Museum opens an exhibit on May 10 of a replica of Charles Babbage's third computer design, Difference Engine No. 2. None of his designs were ever completed during his lifetime. The first working model of this device was completed by London's Science Museum in 2002. The model on display at the exhibit is a copy made by the Science Museum for former Microsoft CTO Nathan Myhrvold who has generously loaned it for a year.

The museum's website has a fascinating discussion of the history of this device and the exhibit complete with a video of the machine in action. While it may not be worth a special trip to Silicon Valley, I certainly plan to visit it the next time I am in the neighborhood and thought it would be of interest to readers.

(OK, this has nothing to do with spectrum. But I thought many readers would be interested.)


Computer History Museum
1401 N Shoreline Blvd.
Mountain View, CA 94043

Tel: (650) 810-1010

Wireless Microphones and
Docket 04-186: Two Different Viewpoints

On May 1st, the Sports Technology Alliance, a trade group consisting of the major professional sports leagues and ESPN, submitted an ex parte filing to FCC on why the FCC should reject the TV whitespace proposals of Docket 04-186 because of the threat of harm to the production of live sports events or the possible resulting requirement that using beacons to protect legal wireless microphone use "would result in significant additional expense to acquire new equipment merely to enable existing equipment to continue to function." Presumably the "existing equipment" they mention is the analog FM FDMA equipment that is being replaced now in almost every other radio service by more efficient equipment.

To bolster their technical points, this group has hired Harbour Group, a Washington DC PR firm to explain the advantages of the status quo. Harbour's website explains their approach to advocacy:

“We have helped clients sharpen their messaging and delivery to provide support to their allies and put pressure on opponents, shaping the policy environment... Managing the public policy issues that can affect an organization’s success starts with identifying and prioritizing challenges. We conduct thoughtful research, target key constituencies, build successful alliances and mobilize supporters. Our collective backgrounds provide a powerful combination of expertise and experience that allow us to help shape policy development and deliver results.”

Oddly, Harbour has never mentioned why these multibillion dollar clients need continued cost free access to spectrum on demand anywhere in the US even if it denies the use of the spectrum to others and why they cling to using dated FM FDMA technology when even your neighborhood taxi is transitioning to more efficient technology.

SpectrumTalk welcomes Harbour Group to the fray and looks forward to the "pressure" they promise. However, the wireless microphone community might do better hiring technical advisers to see what their technical options really are rather than clinging to technical and regulatory approaches of the past.

Marcus Spectrum Solutions LLC has filed with FCC today a response to the Sports Technology Alliance. Readers are encouraged to compare the two viewpoints and comment on them. While I nominally "moderate" comments on this blog to prevent spam, all comments received will be posted below except those that are clearly spam or contain words not fit for broadcasting. I suppose Harbour Group would not suggest that the other side be as open.

RCR Wireless News
Reports June Hearing
on
FCC Management/"Broken Process"

This afternoon RCR reported that "House Commerce Committee investigators have recommended to Chairman John Dingell (D-Mich.) that hearings on FCC management practices be held in June, citing results to date from a probe of the issue that began late last year."

A staff memo was quoted as saying,

"We have conducted more than 30 interviews with current and former [FCC] employees as well as industry representatives and private citizens. The bottom line is that the [FCC] process appears broken and most of the blame appears to rest with Chairman Martin."

Since this is an election year and there is no love lost between Chairman Dingell and Chairman Martin, one must take this with a grain of salt. The article also summarized some of Chairman Martin's recent efforts to improve transparency, such as the recent announcement that topics of public meetings would be revealed 3 weeks in advance.

Appeals Court Sends BPL Decision Back to FCC:
Will Similar FCC Errors Affect More Important Policy Decisions?

The US's national amateur radio group, ARRL*, is gloating properly that it succeeded in the US Court of Appeals for the DC Circuit to remand the FCC's decision in Docket 04-37 back to the Commission for further review. In the big scheme of things, this decision isn't that important since BPL has never had much of a commercial impact and I doubt that it ever will at this point in time since it serves a broadband niche that is largely overcome by alternative technologies. So whether or not further FCC action on this technology allows its commercial use will not really affect anyone other than a few manufacturers and electric utilities who might make small sums, but are unlikely to have a "killer app".

However, the decision is a reminder to FCC that it has not been dealing well with technical issues and similar sloppiness in other proceedings could have major impacts, messing up much more significant technologies.

Let me review some interesting parts of the decision, where is available here for download. (For nonlawyers with a fear of legal issues, this decision is really written very clearly and should be readily accessible to people working in this area. No law degree needed!)

The court's decision revolves on whether the FCC followed the requirements of the Administrative Procedures Act (APA) in reaching its decision. The court explained the basic APA requirements to be considered:

"Under APA notice and comment requirements, “[a]mong the information that must be revealed for public evaluation are the ‘technical studies and data’ upon which the agency relies [in its rulemaking].” Chamber of Commerce v. SEC (Chamber of Commerce II), 443 F.3d 890, 899 (D.C. Cir. 2006) (citation omitted). Construing section 553 of the APA, the court explained long ago that “[i]n order to allow for useful criticism, it is especially important for the agency to identify and make available technical studies and data that it has employed in reaching the decisions to propose particular rules.” Conn. Light & Power Co. v. Nuclear Regulatory Comm’n, 673 F.2d 525, 530 (D.C. Cir. 1982) (emphasis added). More particularly, “[d]isclosure of staff reports allows the parties to focus on the information relied on by the agency and to point out where that information is erroneous or where the agency may be drawing improper conclusions from it.” Nat’l Ass’n of Regulatory Util. Comm’rs (“NARUC”) v. FCC, 737 F.2d 1095, 1121 (D.C. Cir. 1984) (emphasis added); see Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 393 (D.C. Cir. 1973); see also Kent County, Del. Levy Court v. EPA, 963 F.2d 391, 395-96 (D.C. Cir. 1992); Indep. U.S. Tanker Owners Comm. v. Lewis, 690 F.2d 908, 926 (D.C. Cir. 1982)." (p.12-13) (emphasis added)

FCC has redacted key technical reports before making them public.

"At issue are five scientific studies consisting of empirical data gathered from field tests performed by the Office of Engineering and Technology. Two studies measured specific Access BPL companies’ emissions, and three others measured location-specific emissions in pilot Access BPL areas in New York, North Carolina, and Pennsylvania. In placing the studies in the rulemaking record, the Commission has redacted parts of individual pages, otherwise relying on those pages. In responding to the League’s FOIA request, the Commission stated that “certain portions of [these] presentations have been redacted, as they represent preliminary or partial results or staff opinions that were part of the deliberative process, exempt from disclosure under Section 0.457(e) of the Commission’s rules and Section 552(b)(5) of the FOIA.” (p. 14)

My best guess is that the redacted information disagreed with top management's position and an attempt was made to "deep six" such information. Years ago, the FCC chairman wanted a vibrant internal discussion of issues pending before the Commission and wanted to hear varying viewpoints. Unfortunately in the past decade that has not been the case often, if at all, in technical issues. This is further complicated by the fact that the Bush Administration seems to view itself as a BPL "cheerleader" - perhaps to show it is doing something about the US's standing in broadband deployment vis-a-vis other countries. (Although it would not surprise me to find out someday that Jack Abramoff, or some similar high powered lobbyist, was key to the administration's fascination with BPL.)

Basically, the court dismissed the FCC's theory of why it was OK to redact the studies:

"It would appear to be a fairly obvious proposition that studies upon which an agency relies in promulgating a rule must be made available during the rulemaking in order to afford interested persons meaningful notice and an opportunity for comment. “It is not consonant with the purpose of a rulemaking proceeding to promulgate rules on the basis of inadequate data, or on data that, [to a] critical degree, is known only to the agency.” Portland Cement Ass’n, 486 F.2d at 393; see NARUC, 737 F.2d at 1121. Where, as here, an agency’s determination “is based upon ‘a complex mix of controversial and uncommented upon data and calculations,’” there is no APA precedent allowing an agency to cherry-pick a study on which it has chosen to rely in part. See Solite Corp. v. EPA, 952 F.2d 473, 500 (D.C. Cir. 1991) (quoting Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1031 (D.C. Cir. 1978)); see also Kent County, 963 F.2d at 396; Indep. U.S. Tanker Owners Comm., 690 F.2d at 926; Sierra Club, 657 F.2d at 334, 398." (p. 15) (emphasis added)

More troubling is that fact that the court explicitly questions the FCC's technical judgment in radio propagation. In introducing its decision, the court said “Where a 'highly technical question' is involved, courts necessarily must show considerable deference to an agency’s expertise.” (p. 8) Thus the FCC would have to mess up a lot for the could to question its technical judgment in its core jurisdiction. But that is exactly what happened!

The Commission had decided to use the traditional "extrapolation factor" of 40 dB/decade for converting test measurements of BPL systems back to the nominal measurement distance specified in the rules. The problem is that 40 dB/decade is the clear answer for point sources like most Part 15 devices and not the clear answer for distributed sources like a medium voltage powerline.

"Nonetheless, the gaps in the Commission’s explanation for applying the pre-existing extrapolation factor to Access BPL systems demonstrate its inadequacy... (T)he Commission provided no explanation of how this circumstance justified retaining for Access BPL an extrapolation factor that was designed to accommodate technologies different in scale, signal power, and frequencies used." (p.20-21)

This last part of the court's decision is the most troubling. Either the 8th Floor dictated the technical answer to give the petitioners what they wanted or the Commission's technical staff was unable to explain their answer even with the deference the court gave it.

While this BPL decision is not important per se, it is a troubling sign that the Commission's technical policy decisions need to be bolstered if they are going to withstand even minimal court review. I hope this is done by strengthening the Commission's technical resources and bringing back to the 8th Floor staffers for the commissioners who are really interested in technical policy - they don't have to be degreed engineers or card-carrying IEEE members.

* I am a member of ARRL, but have not been involved in any of their activities dealing with BPL and have not agreed with all their positions on the topic.

EU Radio Spectrum Policy Group Asks a Question FCC and NTIA are Afraid to Ask

There is general agreement in the US that there is a serious shortfall in available public safety wireless systems. This has been exacerbated by the current homeland security situation. But the problem includes massive interoperability problems that I have discussed before, coverage problems that were highlighted by shortcomings on 9/11 in NYC, and the frustration of public safety personnel that they are putting their lives on the line without access to the same up to date technology that life insurance agents take for granted.

I have no doubt that to meet these demands additional spectrum will have to be allocated to both federal and nonfederal public safety organizations. But there is the nagging question of how effectively is the present public safety spectrum being used? Could some of the improved systems use present public safety spectrum that is not efficiently used? This is a question that neither FCC or NTIA want to ask. It reminds me of a former boss at FCC who used to repeatedly say both "Never ask a question unless you are prepared to hear the answer" and "Never tell anyone something they don't want to hear."

The EU is bolder in this respect and its Radio Spectrum Policy Group recently held a public workshop on Optimising the Use of the Radio Spectrum by the Public Sector in the European Union


My UK friends at PolicyTracker described the conference as

The pressure on public sector spectrum users is mounting. The Radio Spectrum Policy Group (RSPG) has begun the process of drawing up recommendations on best practice among the emergency services, military and transport sectors. And a group of consultants commissioned by Brussels are a couple of months into a parallel study on improving efficiency in the sector.

While the conclusions of both parties are many months away their terms of reference and initial conclusions do indicate a change in the policy climate. The second strand of the RSPG's brief is to "identify ways to encourage a more efficient use of spectrum by public bodies." Clearly the EU regulators who make up the RSPG suspect efficiency gains are possible or they wouldn't have accepted the Commission's request to provide an opinion on the subject.

The workshop was organized by fellow former FCC staffer Scott Marcus, not a relative, and included many people with whom I had worked on another study for the EU several years ago.

The RSPG speaker at the conference described their goals:

• Main Objective
– identify means to encourage a more efficient use of spectrum by public sector bodies
– best practices –not mandatory guidelines / recs
– defence
– emergency and public safety
– public transport

• Identify ways to determine objectively the need for radio resources for public use
–ex-ante justification and
–ex-post review mechanisms

• Propose practical approaches and possible regulatory measures to balance public service and commercial spectrum usage interests

• Propose practical approaches to deal with competing public service usage interests

• Make proposals for EU activities on research and development

• Identify best practices to be considered by national entities having responsibility for
the public use of spectrum:
–availability of information about the use of spectrum by public sectors bodies
–introduction of market-based management tools
–active sharing of spectrum between different public, commercial and private sectors
–national re-farming mechanisms

I hope that FCC and NTIA follow the activities here and seriously consider parallel activities for the US. However, with an election coming I doubt if anyone has the political courage to do so.

A Wireless Microphone Manufacturer's Approach to Spectrum Management

In Docket 04-186 (TV Whitespace) the wireless microphone community has been making numerous complaints about how they can not be subject to any interference because they are such a vital service. Of course, the vast majority of present wireless microphone users are not eligible for licensed under Part 74, Subpart H so such use is actually a criminal violation of 47 USC 301. But setting that aside for the moment, let's see how responsible they have been. Below is a web page I downloaded for Shure's Wireless Frequency Finder website. I have made several annotations.

(Click on any of the images in this post to get a clearer version of the information shown)

First, next to the letter A is the following quote:

"As a rule, a wireless system should NOT operate on the same frequency as a local TVstation. The signal strength of a television transmission is many times stronger than that of a wireless system, and will result in interference."

I note that "rule" is not capitalized, so I assume that Shure is not referring to FCC Rules. You see the reason you should not pick an active local TV channel is that you might get interference. Shure apparently isn't concerned that TV viewers might get interference. Shure also isn't concerned about interference to weak distant TV stations, the problem that MSTV keeps complaining about for the proposed white space devices. Why is MSTV so worried about cognitive radio-based WSDs and oblivious to the present illegal use of UHF spectrum by "dumb" wireless mics?

Next, near the letter B, we have the following quote,

"Shure wireless microphones and PSM systems designed for use in the United States operate on standard VHF (TV channels 7-13, 174-216 MHz) and UHF, TV channels 14-69, 470-806 MHz, frequencies."

470-806 MHz? Does that sound familiar? Doesn't that include the frequencies that FCC
just auctioned off for $19B and AT&T and Verizon expect to start using in 306 days? Doesn't it include blocks that have been allocated to public safety? Did Shure forget to tell its customers? Perhaps they didn't read the newspapers about the auction? What are their customers really expecting? When is Shure going to urge them to move out of these 700 MHz channels? Note that the whole tone of the "spectrum finder" is that users should listen to Shure and just ignore FCC and everyone else.

Then I entered the FCC's ZIP code, 20554, in the Shure "frequency finder" and asked for frequencies in the DC area. Here are the results:

Well at least Shure does not recommend the frequencies that have been auctioned. But wait, isn't there something special about channels 17 & 18 in the Washington DC area? Weren't they allocated for TV Land Mobile Sharing in Docket 18262 in the 1970s?

Pulling out my brand new copy of 47 CFR I look up 90.303. Voila, in the Washington area 17 & 18 are land mobile public safety channels!

So I went to ULS and looked up the specific use of channels 17 and 18 in the DC area. Above is the list of 28 public safety agencies in the Washington area that use these frequencies. Did Shure ask them if it was OK for illegal nonlicensed users in a band subject to mandatory licensing to share their frequencies?

How could Shure have missed that? If Shure thinks sharing with public safety is so easy, why don't they file a petition and see what APCO thinks about it?

I have written previously that wireless microphones are a legitimate use of spectrum and that FCC should accommodate them in some way, but not necessarily with the same obsolescent technology forever and not necessarily in the same valuable spectrum that they use inefficiently (in terms of time and space availability) if they exclude all others. But the wireless microphone crowd should start acting responsibly first, not just urging their customers to squat on all sorts of frequencies including public safety frequencies.

Considering the lawless, reckless nature this group has shown, it is amazing that established trade groups like CTIA, NAB, and MSTV are all pandering to them. Normally these groups protect their own interests by stressing the need for compliance with FCC regulations, not explicitly condoning violations of them.

Think FAA is the Only Agency with Severe Mood Swings
in Enforcement?

As I was trapped for several hours in Dallas-Ft. Worth Airport last week in the "meltdown" of American Airlines and then waited several days for our luggage to arrive at our destination in Phoenix, I contemplated the implications of several mood swings in agency enforcement.

It appears that the root cause of the American Airlines crisis last week that stranded thousands of passengers was FAA first being too cozy with industry on enforcement issues and then suddenly flip flopping to strict enforcement. One does not want airplane mechanics making their own judgments on wiring details as opposed to what the manufacturer and FAA have found to be safe. Similarly, one does not want equipment manufacturers to make their own judgments as to what equipment emissions are safe. That's why the FCC has rules for electromagnetic compatibility (EMC) that cover incidental emissions (e.g. from PCs), inband signal powers, and out of band emissions. As I have written earlier, FCC in recent years has shown a remarkable disinterest in enforcing its EMC rules and is focused almost entirely on complaints - mainly from competitors. Unfortunately, thousands of products could be in the hands of consumers before a complaint is filed. This is one area where the broadcast establishment and I "sort of" agree.

We both have stated that enforcement is not adequate. But the broadcasters don't seem interested in improving it, rather they just accept the status quo and want to use it as a justification for rejecting the unlicensed proposals in Docket 04-186 ("TV whitespace"). By contrast, I have said that the status quo is unacceptable no matter what happens in this docket and that FCC should work with industry to develop a modest but real post market sampling program for consumer electronics that is a real deterrent to marketing equipment that does not comply with EMC rules.

In May 2004 with great fanfare FCC opened a new anechoic test chamber at its Columbia Laboratory with a ribbon cutting by Chmn. Powell. The cost of this chamber was about $1 million, the largest technical investment FCC has ever made. While the press at the time focused on the sensitivity of this chamber (since it shielded tests from local radio signals), the nerds knew that another key advantage over the previous outdoor tests is that an indoor chamber can be used 5 days a week independent of weather and that time does not have to be wasted for each day's tests moving equipment outdoors and back.

FCC Laboratory Anechoic Test Chamber

Thus it is possible to do a lot more testing in such an indoor chamber than in the previously used outdoor test range. Is FCC doing more testing? I don't see any evidence. There certainly aren't more enforcement actions against noncompliant equipment manufacturers/importers. Also in my various visits to the FCC Lab in recent months I have never seen the million dollar chamber used for post market sampling or any evidence that it is frequently used for such. From the Commission's FY 2009 Budget we have the following indication of policy in this area:

"Targets with Subordinate Measures:

o Enforce the Commission’s spectrum regulations and policies to provide certainty to spectrum users that they will not be subject to harmful interference by the use of devices that do not comply with the Commission’s rules.

• Resolve 100% of non-emergency interference complaints within one month."

Thus the stated goal to "provide certainty" is just to resolve complaints within a month. It is not to check market compliance nor to prevent problems. For the small number of tests needed to check complaints a million dollar chamber wasn't needed!

Now it is not that FCC enforcers have been totally idle. Recently the Commission announced $6 million of fines for retailers who were marketing analog TVs without the required consumer notices. (See commentary from The Onion.) But this is a politically motivated enforcement campaign in response to outside pressures. It is enforcement that is needed at this time of the DTV transition, but it just shows the "knee jerk" nature of FCC enforcement. One can look at the list of FCC enforcement actions and find hardly any actions for marketing equipment that violates EMC rules. Ironically, the DTV enforcement tsunami has resulted in many visits to retail stores by FCC agents. Unfortunately, they were so focused on TV model labeling they didn't notice any other noncompliant products. In large stores like Fry's (a West Coast chain) there are bound to be noncompliant products.

Two years ago NAB complained to the Commission that XM and Sirius were marketing devices that radiated in the FM broadcast band to sent satellite signals from the SDARS receiver to car radios, but were exceeding permitted power levels. Apparently several models had been on the market for several years. FCC verified NAB's measurements (which actually were made improperly and in a misleading way - but that is a different story) and made XM and Sirius comply. But FCC rarely learns from past actions and no one asked the question of how this happened. It happened because there is little or no postmarket sampling and manufacturers/importers know they can probably get away with murder - with at most a slap on the wrist if a competitor complains.

So independent of the Docket 04-186 issues, FCC needs a real post market enforcement program to motivate manufacturers/importers to really comply with the rules or face a finite certainty of significant enforcement. The previous post had more specific suggestions.