SpectrumTalk

Now You See It,
Now You Don't
Is it the Kremlin or the FCC?

A few weeks ago we visited Moscow in conjunction with some business my wife had there. It is a beautiful place in many ways and certainly fascinating. Cold war intrigues kept coming to mind.

Then we came back to France and last Monday I went to Holland for a seminar that I gave at the Technical University of Delft. Getting up early Tuesday morning (7 AM CET, 1 AM EDT) I checked by favorite websites with the hotel's free Wi-Fi and happened to check the FCC home page -- something I do often, but not everyday. Imagine my surprise when I saw this item:

• 9/11/06
  Office of Engineering and Technology Announces Projected Schedule for Proceeding on Unlicensed Operation in the TV Broadcast Bands (ET Docket No. 04-186)

Why did this suddenly appear late on 9/11? I say late because when I saw it early 9/12 US time I sent a note to several people interested in it and none had seen it previously. There was no indication what time it was posted -- but such is the usual practice on the FCC website and is generally reasonable. Could it be that Chairman Martin had a reconfirmation hearing the next day? (Oddly, the Chairman's statement at the hearing is posted on the FCC website with no indication that the hearing dealt with reconfirmation rather than a more routine matter such as oversight. However, in two places the statement contains the phrase "if reconfirmed" so his speechwriters did remember why he was there. It also has no mention of the public notice [PN].)

The PN appears on the surface to be a statement from the Office of Engineering and Technology (OET) announcing a schedule for the "TV whitespace" rulemaking, Docket 04-186. Such schedules are not unprecedented, but are rare. If you read the previous column "Where Have All the Dockets Gone", you could guess that the number "04-186" means that it has been about 2 years since the NPRM was released. There had been no FCC action since then. This proceeding has become a battle between the "old economy", e.g. the major TV broadcast lobbies (NAB, MSTV) and low tech wireless microphone manufacturers and the "new economy", e.g. Microsoft, Intel, rural groups looking for wireless broadband, and the wireless ISPs. The "new economy" side has created significant bipartisan interest on the Hill and momentum behind legislation to force the FCC to a schedule. (I guess everyone has forgotten that Congress tried to do this previously for the general case in Section 7 of the Communications Act.)

I suspect that the Chairman's Office noticed that the new FDA commissioner's nomination got derailed on his inability to act on the controversial "morning after" pill issue, so they didn't want to face accusations of inaction even from a Republican dominated committee.

The PN is strange in that it seems to prejudge the issue. Indeed, to readers not used to the kremlinology approach to analyzing the current FCC it looked like the basic issues were already decided. For example, a PC technology newsletter, arstechnica, announced in a headline, "FCC will allow unlicensed devices in analog TV spectrum". Was this an irresponsible interpretation? Probably not since the PN had the statements

• "Accordingly, the Office of Engineering and Technology is developing a First Report and Order and Further Notice of Proposed Rule Making that would make initial decisions and specific technical proposals necessary to adopt complete and final rules, taking into the account the comments received in response to the May 2004 Notice." [If the proposals were to be rejected completely, the document that would do so iwould be a "Memorandum, Opinions, and Order", so the use of "First Report and Order" terminology would normally be an important signal of future action.]
  
• "December 2007 FCC Laboratory begins accepting applications for certification of
  unlicensed devices operating in the TV bands; certification will be granted at such time as the application has been reviewed and found to comply with the rules; certification will permit manufacture and shipment of
  products to distribution points
  February 2009 Products will be available for sale at retail."

So what is going on here? Those of you who read the September 5 & 6, 2006 articles in Communications Daily on the the FCC's current management style know that nothing happens at FCC now without the direction of the Chairman's office. The Chairman's staff must have been directly involved in this PN preparation and its cynical release on the eve of the reconfirmation hearing. Did they write it to prejudge Commission action and mislead the committee? Or was the apparent prejudging an simple mistake of inexperienced political insiders on the "8th Floor" that should have been caught by routine staff work in OET and OGC but wasn't because either the 8th Floor doesn't like to vet things with career staffers or the career staff is afraid to tell the 8th floors "things they don't want to hear"?

In any case, the poor choice of wording should be an embarrassment to all involved unless it was an intentional trick.

So why the title of this entry? In about 24 hours after its appearance on the home page, the PN mysteriously moved off the home page and on to the OET page! (Cynical as I am, I checked to see if the wording changed, but it does not appear to have.)

By the way, while all these machinations were going on, the FCC missed the September 11 filing date at FAA for comments on the FAA's proposal to become a spectrum regulator. (Why have 2 spectrum regulators in the US, when we could have 3?) Since the FCC filed comments in an earlier window limited to Paperwork Reduction Act issues, one would have assumed they were going to file in the main window.

Finally, if the FCC puzzles you and you think I am unfair comparing it to the Kremlin, a 9/14 Associated Press article alleges that FCC managment ordered all copies of a 2004 draft report on media ownership destroyed before the confirmation hearing because its conclusions were embarrassing to the current party line on the issue.

[In the interest of transparency I want to tell you that since the above entry was first posted I have seen information on the FCC website that updates what the AP article said. Chmn. Martin has written a reply to Sen. Boxer that states he was unaware of the 2004 draft and the draft itself has now been posted. This shows one of the problems of secretive management: outsiders see things as even worse than they are and that sometimes leads to even worse secrecy! The Chairman cites in his letter the fact that the Chief of the Media Bureau from 2004 was no longer at FCC. He fails to mention that there are hardly any bureau/office chiefs from 2004 still at FCC two years later. This is a fact not unconnected with his management style.]