Interstate Highway System @ 50:
Lessons for Public Safety Communications

Today is the 50th birthday of the Interstate Highway System, a brilliant accomplishment of the Eisenhower Administration. Prior to this states had primary responsibility for road planning with some federal support. Eisenhower realized that the only way to build a true national system with modern roads, something actually started in Nazi Germany pre-WWII, was to have national leadership. And the only was to get national leadership was to address the state/federal relationship. A clever compromise was offerred: states would get 90% federal financing of interstate highways if they adhered to federal plans on network design and technical standards. There was no preemption of states' rights and the Tenth Amendment was respected.

So why are we discussing this here? A major problem in public safety communications is the "Tower of Babel" of the thousands of independent public safety agencies coast to coast. They feel they can select their own uniforms, their own guns, and their own radio systems. Under our federal system and the Tenth Amendment they can! Public safety regularly demands more spectrum to solve the problem and FCC regularly caves in throwing more spectrum to the public safety community, increasingly attaching some conditions requiring some marginal improvement in interoperability in the new band. But adding new bands, just adds to the Tower of Babel. Have things really improved since the Air Florida crash in 1982. Here is an account from a presention to FCC:

The of Air Florida flight 90 created a tremendous outpouring of public safety response to that horrific event. And, unfortunately, it didn't go well. It was "communications gridlock to the nth degree. Everybody that was there had good intentions, everybody that was there wanted to do good. But everybody that was there couldn't talk to each other.

Was 9/11 almost 20 years later any better?

Throwing spectrum at the problem doesn't get at the root cause: no one is in charge here. Don't blame FCC this time, there is little it can do under pressure from local public safety, usually urged on by their major equipment supplier(s), to take a certain nearterm action that local governments sincerely believe will be marginally effective.

We urgently need a national plan from national leadership, not endless negotiation with thousands of jurisdictions. If that was the way the Intersate Highway System was designed we wouldn't have what we know today. I believe that the only way out of this mess is for the Federal Government to assume a role in public safety communications similar to the one it took in highways - pay most of the costs in exchange to getting control. A billion dollars here and there won't do the job. The cost of building a new public safety radio system that really works and is interoperable is probably in the $20-50 billion range. This is a lot of money! But compared to what is being spent on other aspects of national security and homeland security it isn't so high. I really think that the Tower of Babel will continue into the foreseeable future unless such bold action is taken.


Technorati Profile

Aux armes citoyens – FAA Proposes Encroaching on FCC Airspace: Does the US Really Need 3 Agencies as Spectrum Regulators?


On June 13, 2006 the Federal Aviation Administration (FAA) published in the Federal Register a Notice of Proposed Rulemaking (NPRM) entitled “Safe, Efficient Use and Preservation of the Navigable Airspace” – certainly not something one would be opposed to.

A closer reading shows that the FAA seeks to greatly enlarge its authority with respect to FCC-licensed radio facilities. But, as I will show below, it takes “two to tango” and this attempted power grab by the FAA is in response to years of what FAA staffers see as apathy and hostility at FCC and should not come as a complete surprise to the spectrum community.

The FAA NPRM states, "(a) substantial body of evidence indicates that FM signals can seriously encroach and disrupt aviation VHF transmissions" and then neither gives a reference for this statement not describes its scope in any more detail. Let me say, there is real question whether any FM broadcast transmitter meeting FCC Rules ever has or could even in a laboratory test cause interference if its frequency is less than 105 MHz.

Living in France, I couldn’t resist using a line from La Marseillaise in the title, but the message is real: unless the spectrum community does something here we will have a mess that will take years to untangle. The action needed is to both demonstrate opposition to the FAA NPRM as well as to urge the FCC to moderate its confrontational approach to the FAA which is a root cause of this situation.

FAA and FCC: Their Roles

To first order, FAA regulates aviation and FCC regulations radio, at least non-Federal Government use of radio. But FAA is also charged by law with operating radio navigation facilities such as VOR and ILS. FAA has for a long time had authority to “regulate” buildings and towers near airports that could create hazard to air navigation. I put regulate in quotes because Congress has never given FAA authority to forbid new construction but only authority to require notification before construction and authority to issue a nonbinding “hazard determination”. FAA can not directly enforce such a hazard determination, but indirectly it does since local zoning authorities and insurance companies take them into consideration. So in most cases, a hazard determination is an “FAA veto” in effect.

It is an old saying that “regulatory agencies tend to be captured by their industries” and this applies in some degree to both FCC and FAA. But most FCC staffers don’t understand or want to understand FAA and vice versa. FAA and its predecessors used to be independent agencies (until 1967) and it still views itself as pretty autonomous within DOT. FAA employees, much more so than FCC, have a tremendous esprit de corps and feel that they have a critical role in ensuring aviation safety and that many other entities, both in government and outside of government, are all too eager to compromise safety.

FAA spectrum staffers see the FCC as a handmaiden of its industries with little interest in safety. This is clearly an exaggeration, but sometimes insensitive FCC staffers have acted in ways that reinforce this bias. During the main DTV policy development period of roughly 1986-1996 FAA developed a fixation about possible interference to aircraft using Global Positioning System (GPS) for precision landings (a high FAA priority) from TV transmitters on channels 23 (1/3 of GPS frequency) and 66 (1/2 of GPS frequency). FAA asked FCC for rigid transmitter signal purity standards on these frequencies. Key FCC staffers antagonistic to FAA, dismissed these concerns out of hand, refused to engage the FAA on this issue, and even tried to hide the issue from top FCC managers and the commissioners. It is ironic that the DTV industry latter realized it could meet the FAA request and it was basically adopted.

In the ultrawideband (UWB) rulemaking FAA had severe misgivings about the proposed rules although when you “did the math” you could see that aviation uses of GPS weren’t threatened by UWB. (Probably FAA was being “collegial” to its “friends" in the GPS industry who had other concerns about terrestrial GPS/UWB issues unrelated to aviation safety.) FCC “isolated” FAA through outreach to NTIA and DoD, the operator and a main proponent of GPS, and FAA felt that it had been ignored. As an institution, FAA doesn’t like to be ignored.


Past Successes in FAA/FCC Relations

FCC and FAA used to have a rocky road in the late 1980s during the Al Sikes chairmanship. Indeed Sikes, a former broadcaster, regularly sent to staff complaints he got from FM broadcasters about FAA blocking proposed FM transmitters based on unclear criteria. It turns out that FAA and FCC have what can charitably be called a “different tradition of administrative law” so FCC believes criteria must be published in codified rules and FAA believes that criteria for safety are so important that codification is overly restrictive.

I proposed around 1987 to my then boss Dick Smith, Chief of the Field Operations Bureau and later Chief of the Office of Engineering and Technology, and Roy Stewart, Chief of the Mass Media Bureau, that FCC engage FAA in a dialogue on this issue focusing on the techniques in the negotiating book, Getting to Yes. We found a top manager at FAA to join us in this effort and started an interagency committee that with occasional help from an outside facilitator searched for mutually acceptable solutions. We finally defused most of the problem by agreeing that the FAA would distribute the computer program that it used in almost all cases to decide if a new transmitter was acceptable and FCC would not question the criteria and would accept it in most cases.


The New NPRM

The key issue in the new NPRM is the proposed 47 CFR 77.9(e)(1) which says,

The FAA proposes to require that notice be filed for the following:Any construction of a new, or modification of an existing facility, i.e.—building, antenna structure, or any other man-made structure, which supports a radiating element(s) for the purpose of radio frequency transmission operating on the following frequencies:
(i) 54–108 MHz
(ii) 150–216 MHz
(iii) 406–420 MHz
(iv) 932–935/941 MHz
(v) 952–960 MHz
(vi) 1390–1400 MHz
(vii) 2500–2700 MHz
(viii) 3700–4200 MHz
(ix) 5000–5650 MHz
(x) 5925–6525 MHz
(xi) 7450–8550 MHz
(xii) 14.2–14.4 GHz
(xiii) 21.2–23.6 GHz

This includes TV channels 2-13, the whole FM broadcast band, land mobile, fixed, satellite uplinks, satellite downlinks, broadcasting satellite, and ship radars. In just one of the bands they propose, 150-216 MHz, there are 254,015 FCC licenses, of which 94,960 are public safety! Since 2690-2700 MHz is a passive only band in the US it is puzzling why it is included. Also 406-420 MHz and 7450-8450 MHz have only Federal Government assignments so it is puzzling why they are included. (Rumor has it that NTIA was blindsided by this NPRM and has told FAA to forget about applying this procedure to Federal Government users.)

The present version of Part 77 of 14 CFR does not specify what frequencies should be notified to the FAA although the modus operandi of the FAA and FM industry is that upper FM frequencies should be notified. The proposed new rule is certainly clearer but its breadth is amazing! I suspect that Wireless Bureau, Media Bureau, and International Bureau have thousands of license changes in these bands annually that would all have to be notified separately to FAA under the proposed rule. Then the FAA would have to consider them on its own time schedule. Under what criteria, you ask? Well the proposed Subpart C (14 CFR 77.13 et seq.) gives clear criteria for physical obstructions to airspace but is silent on the electromagnetic issues. The text of the NPRM does say, “The FAA is proposing to codify new
EMI obstruction standards in part 77 along with the obstruction standards for physical obstructions. (71 FR 34034 under “EMI-Obstruction Standards” section) but gives no specific proposal. The “devil is in the details”.

So What to Do?

This is an NPRM. The spectrum community should tell the FAA what they think about this proposal! FAA website for submitting comments is http://dms.dot.gov/submit/
Comment due date: 9/11/06

I suggest that FCC licensees should say what a large burden this will be and how FAA/FCC coordination would be much more efficient for all involved and could focus on real problems, not huge blocks of spectrum. FCC presently exchanges with FAA data on existing and pending FM licenses.

What criteria will FAA use? The compromise in the FM case was FAA distribution of their analysis model and de facto criteria even though they did not agree to be bound by them. Once this was done, almost all FM operators submitted applications that complied with the model just to “get on with life”. FAA should commit to a parallel program for other bands.

The NPRM says that the FAA will codify some model. If so, why doesn't it just ask FCC to codify the model and treat it like it treats other licensing criteria that the computers in Gettysburg check before they print a new license. However, that would require FCC/FAA cooperation and a consensus between the 2 agencies about the number of bands to be covered as well as the technical criteria. Is this too much to expect?

FAA continues to allow aircraft operating only within US airspace to use ILS receivers that do not meet ICAO standards for immunity to FM signals from ILS receiver-generated intermodulation. It then uses the existence of such poor receivers to justify its criteria for broadcast stations. FAA should be reminded that the public interest demands a tradeoff here between its regulatees and FCC-regulated spectrum users.

Finally, address the root cause of this problem: distrust between FAA and FCC in the spectrum area. The good news is that the 2 worst antagonists on the FCC side have retired in the past year and the worst antagonist on the FAA side retired a few years ago. Thus on the personnel side there is a relatively clean slate for the first time in years, if not decades.

I think senior managers from both agencies should start to rebuild trust by examining basic issues and how the agencies can cooperate better. The continuing inability of the FCC to appoint a permanent head of the Wireless Bureau or even formally designate an acting head of the Office of Engineering and Technology hurts any attempt to establish a long term dialog with senior FAA staff.

Link to FAA Docket file with comments

"Too Cheap to Meter"

In an address to the National Association of Science Writers in New York on September 16, 1954, US Atomic Energy Commission Chairman Lewis L. Strauss was talking about nuclear power and said,

"It is not too much to expect that our children will enjoy in their homes electrical energy too cheap to meter; will know of great periodic regional famines in the world only as matters of history; will travel effortlessly over the seas and under them and through the air with a minimum of danger and at great speeds, and will experience a lifespan far longer than ours, as disease yields and man comes to understand what causes him to age. This is the forecast of an age of peace." (N.Y. Times, August 7, 1955)

It is unclear what time frame Chmn. Strauss was talking about with respect to "electricity too cheap to meter" - especially when you look at the later phrases of the sentence - and this quote continues to cause controversy in the electric utility industry.

But let's look at telecom. When I joined FCC in 1979, price regulation of the Bell System was a big issue although MCI and Sprint were already around. FCC was trying to keep telecom reasonably priced through a variety of tools like reviewing AT&T's rate of return and tariff rates for long distance calls.

But today, telecom may actually be becoming "too cheap to meter". Larry Roberts, the original manager of the ARPANET project that evolved into Internet, used to say in the early 1970s that this technology had user costs independent of distance or data volume. At the time, I wasn't sure if I agreed with him since he didn't differentiate on the difference between prices and costs. Larry, you were right!

As we all know, Skype gives away a voice service - VoIP/ Voice over Internet Protocol - which is crosselastic with what AT&T used to sell and FCC used to regulate. ["crosselastic" - economics jargon for describing two products or services that are different but similar enough that one could at least partially substitue for the other depending on relative pricing.] Vonage sells for $24.95/month a VoIP service which is virtually the same as AT&T's long distance POTS and gives you unlimited calling to US, and although throws in for free Canada, UK, France, Spain, Ireland, and Italy!

Now let's look at Wi-Fi.



Free Wi-Fi hotspots are growing like mushrooms! Pay hotspots are also growing so it is not possible to be confident of the final outcome. Combine free Wi-Fi with free or nearly free VoIP and what do you get? Free/nearly free mobile phone service.

Maybe Chmn. Strauss just got the industry wrong, but was right on the concept?

Transparency at FCC: The NTIA Ex Parte Loophole

FCC is very proud of its transparency, the fact that it functions in a "goldfish bowl" where anyone can see what inputs it receives and how it justifies its decisions based on those inputs in its decision documents. Indeed, in dealing with foreign counterparts in "newly emerging democracies" FCC makes a big point of the benefits of transparency. The FCC (like all other US administraive agencies) has rules, codified in Subpart H of Part 1 of its Rules, called ex parte rules that require those contacting FCC about a pending rulemaking to document in writing who that talked with and what was discussed. These rules are generally complied with, although the level of detailed in such filings sometimes complies with neither the letter or spirit of the Rules. (Media Access Project has a good description of the ex parte rules that is a lot easier to understand than the official FCC explanation.)

However, there is an amusing loophole to this transparency that is not well known. Check out Section 1.1204(a)

a) Exempt ex parte presentations. The following types of
presentations are exempt from the prohibitions in restricted proceedings
(Sec. 1.1208), the disclosure requirements in permit-but-disclose
proceedings (Sec. 1.1206), and the prohibitions during the Sunshine
Agenda period prohibition (Sec. 1.1203):
...
(5) The presentation is to or from an agency or branch of the
Federal Government or its staff and involves a matter over which that
agency or branch and the Commission share jurisdiction provided that,
any new factual information obtained through such a presentation that is
relied on by the Commission in its decision-making process will, if not
otherwise submitted for the record, be disclosed by the Commission no
later than at the time of the release of the Commission's decision;

If you can get another federal agency that has overlapping jurisdiction with
FCC to make your point then you can avoid making your issue public and you
can influence FCC at the same time.  Why don't you want to make your
point public?  Because if those who disagree with your goal see what
your argument is they may be able to rebut it with facts.  As previously
discussed, the commissioners and their assistants have little technical
or even technical industry background sothey have trouble being selective
about technical viewpoints they receive.

OK, but is there an agency that meets the test of section 1.1204(a)(5) that
would be willing to do this?  Yes.  NTIA - the National Telecommunications
and Information Administration which controls federal government use
of the spectrum under delegation from the President's parallel authority
to the FCC.  If the proposed rule affects spectrum allocated to or shared
by the federal government then FCC can talk with NTIA off the public
record in all the "smoke filled rooms" it wants to.  The only requirement
is that these discussions must be mentioned in the final decision,
sometimes this is done by a public filing by NTIA
on the day the decision is adopted.

In order to use this loophole, you just contact NTIA with an
explanation, real or imagined,about how an FCC proposal
will adversely affect some federal government user.  Usually
NTIA will take the bait and contact FCC and pass on the concern
- often without independent review.

Is this real?  In 2002, Michael Gallagher, then Assistant
Secretary of Commerce and head of NTIA, a person who did
an outstanding job during his term at NTIA, appeared at
a public forum at FCC on spectrum issues.  I asked him
about this issue.  He candidly replied that he didn't see
it as a problem since if he is contacted by a private party
about an FCC rulemaking and its possible impact on government
users he "immediately contacts Julie Knapp" (Deputy Chief
of the Office of Engineering and Technology,FCC and
presently de facto acting chief of OET).  Thus Mike
Gallagher acknowledged that such outside pressure on
NTIA is immediately passed on to FCC without a word
on the public record.  Q.E.D.

"It is better to light a candle than to curse the darkness"
-- Eleanor Roosevelt

I have brought up this issue at meetings of the
Federal Communications Bar Association, the
lawyers that practice before the FCC, and received
no support from others who practice before FCC.
I suspect that some practicing lawyers view this
loophole as a little "trade secret".  FCC seems
uninterested since the practices meets the
letter of existing laws and regulations.  So I am
disclosing it here in the hope that if it becomes better
known and used frequently, this abuse of the spirit of
transparency will get more attention and will
be shut down.

An alternative?  I suggest that NTIA voluntarily
disclose to the public allinformation it receives
from private parties (other than government
contractors performing work that was contracted
for) that is intended to influence an FCC rulemaking
at the same time they pass
the information to FCC.

Your views?