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