FAA Rulemaking on Spectrum Regulation:
Part 4
A Suggested Counterproposal for the Wireless Community

(First, though, an unrelated point: Some nice and well deserved coverage in the Pittsburgh Tribune-Review on the effectiveness of the FCC's efforts in Hurricance Katrina vice another agency in the same part of SW DC whose abbreviation also begins with an "F".)

There are 3 basic approaches to responding to the FAA's NPRM:

1. Tell FAA they are stupid, they are wrong, they messed up on the Paperwork Reduction Act, and they don't have the legal authority anyway.
2. Tell FAA you agree with them.
3. Make a counterproposal to FAA that meets FAA's concerns that are legitimate but does not make the wireless industry grind to a halt.

I'm sure some in the wireless industry favor the first approach. Let me remind them that the "all powerful" NAB tried a similar approach in the FM broadcast area which is the first antecedant here and basically had no success. The FM licensing bottleneck with the FAA was only minimized when FAA and FCC compromised on a modus vivendi that met the legitimate concerns of both and stopped quibbling over statutes. (I played a key role in those negotiations, so I have some explicit experience here.)

Approach 2 has the obvious downside that much of the wireless industry will grind to a halt while the FAA drowns in a tsunami of paperwork - if the filing compliance is high. As I explain below, this approach really won't even accomplish what the FAA wants with any reliability consistent with safety goals.

The rest of this posting will be devoted to my suggestions for Approach 3. This is basically the approach we used to make significant progress in the FM broadcast FAA problem and is based on the book Getting to Yes.



The basic approach here is that each side tries to make the other feel better by offering up points that are not too painful but that will be seen positively by the other side. Hopefully, both sides can converge on a set of mutually acceptable points. The book describes it much better than I can.

So here are the points I would propose for the FCC and wireless parties to use in their comments to FAA:

1. Even if implemented, inevitable marginal compliance would limit its effectiveness - a cooperative FAA/FCC program is really essential for safety goals and would also decrease industry burdens. (Compliance will not be high because the proposed rules cover so many small entities and local governments who can not realistically be expected to be aware of this new redundant filing requirement.)
   
2. Transmitters causing EMI to aeronautical systems fortunately are rare (the NPRM gives few specific examples), so identifying problems at application stage is like looking for needle in haystack as only one application in thousands will need detailed attention. Without unrealistic extremely high filing compliance, there will always be a real likelihood that the "needle" will be missed.
   
3. Searching main application stream at Gettysburg and other FCC processing sites is most efficient and effective. Such a search should use a "trigger level" that would flag applications for FAA coordination and need not be definitive decision. A modest "false alarm" rate should be acceptable as long as all the cases of concern are flagged. The "trigger level" should be subject to mutual FAA/FCC agreement, hopefully with NTIA participation.
   
4. FAA may have to pay FCC cost of software/hardware to do the "flagging" but this would likely be much less than cost of handling the tsunami of paper that would result from NPRM approach.
5. Several types of transmitters that require no site license application are apparently of concern to FAA judging from details of NPRM. These include cellular base stations, VSATs, certain unlicensed systems, the new Broadband Radio Service and other area licenses. The impact of the proposed rules on these services would be horrific even though a negligible number of transmitters raise any real concerns. For these cases FAA should first define a simple categorical exclusion based on power so that low power systems with no realistic likelihood of causing EMI based on conceivable siting vis-a-vis aeronautical systems are exempt from consideration. For those not exempt, an automated "red light/green light" system like that developed by NTIA for coordination of 70/80/90 GHz systems should be used to quickly clear the vast majority of transmitters that are not even questionable and flag a handful for detailed analysis.
   
6. This NPRM makes clear the interaction among aviation safety issues, FAA frequency assignment decsions that are the responsibility of NTIA exercising the President's 47 USC 305 authority, and FCC licensing decisions. FCC licensing decision impact aeronautical decisions and vice versa. On FAA's behalf, NTIA should identify certain types of aeronautical frequency assignment changes that are likely to have a domino effect on FCC licensees and should coordinate review their impact and formally coordinate nonemergency changes with FCC. For example, this might include any ILS or DGPS assignment in a major market in the 108-112 MHz sector. In some cases, public comment would be appropriate.
7. For each of the bands in NPRM, FAA should describe more explicitly which aeronautical system they feel is at risk and what interference mechanisms they are concerned about (e.g. out-of-band emissions, receiver desensitization, receiver-generated intermodulation, etc.) so the wireless community can suggest alternative approaches to avoid the EMI concerns.
8. The NPRM states "The FAA is proposing to codify new EMI obstruction standards in Part 77 along with the obstruction standards for physical obstructions." 71 FR 34034 (bottom of left column) Yet the NPRM lacks a specific proposal anywhere near as specific as the obstruction standards.
9. The public interest demands the minimum total cost solution to the EMI problem. This is not necessarily the minimum cost solution for the FAA and/or its regulatees. EMI depends on both the source of emissions and the receiver’s technical characteristics. The FAA’s continued refusal to require all aircraft in the US using ILS to use receivers meeting ICAO Annex 10 immunity standards 21 years after they were adopted shows that there are real issues in how FAA balances public interest factors. FAA should engage with FCC and NTIA in a realisitic review of how EMI prevention burdens should be balanced between receiver immunity issues and FCC licensing restrictions.
   
10. The inclusion of the U-NII bands in NPRM band (ix) (5000–5650 MHz) raises serious questions since NTIA recently concurred with FCC on low power unlicensed use of this band with full consideration of radar issues, indeed an unprecedented 2 year delay after the FCC Report and Order to resolve them. The ability of FAA to raise new conditions after this recent decision raises significant uncertainty to investment in any unlicensed technology. Administrative certainty demands that FAA work out its problems with NTIA, which historically has paid great deference to FAA, and not rehash them after the fact.

So, you have until 9/11 to file comments. Feel free to contact me if I can help you or feel free to comment on this blog.

Emphasizing the Positive:

Some Nice things About the FCC Web Site

In the past I have been critical about the FCC website, so this time I will follow advice I once got from a former boss at FCC and "emphasize the positive".

• First, the website has actually won an award for the large amount of information it has. It does have a huge amount of information - it may be hard to find - but it is really there somewhere.

• Second, maybe they listened my my criticism in any earlier entry, maybe not, but they have recently elimated the useless clutter caused by having three versions of most documents: .txt, .doc, and .pdf. Now documents are generally given in only .doc and .pdf format. (Continuing the .txt was anachronistic and of no practical value except to the handful of people who don't have MS Word and are unwilling to download the free Acrobat reader.)

• Third, there is a very interesting collection of archival material at http://www.fcc.gov/mb/audio/decdoc/annual_reports.html of the annual reports of the FCC and its predecessor from 1927-1998. These reports contain useful statistical information as well as a summary of what the FCC did that year. In 1999, new legislation mandated a more management style report and the style changed so that the reports are less likely to be of any interest to future generations. In any case, the whole collection of both the traditional reports and the newer ones are at http://www.fcc.gov/omd/strategicplan/.
• (The URL of the archival reports is interesting because it indicates that the page was made by the Audio Service Division of the Media Bureau, the group normally known for AM and FM broadcast station licensing. I suspect someone in this group took some initiative and used a scanner to make all this information available online. I don't know who did it, but he/she has my respect and gratitude.)
  

• Fourth, docket files are easy to find if you know the docket number, but what if you don't? OET has a solution to this in their own docket page: http://www.fcc.gov/oet/info/docket_comments/ . It lists docket numbers, names, comment due dates, and even has a clickable link to the Docket file! It sets a good example that hopefully others will emulate.

• Fifth, the Media Bureau search engine for FCC Rules shows great initiative. If use the link on the FCC home page that is labelled "FCC Rules", you go to the National Archives website for the whole Code of Federal Regulations and it can be somewhat confusing for a beginner. But MB has a page at http://www.fcc.gov/mb/audio/bickel/amfmrule.html that is much more user friendly as it acts as a front end for the Archives site, asking you only the rule number in the format (Rule part).(Section number), no need to end 47 (for 47 CFR each time). Oddly, the page indicates that it only works for Part 73, but it works for all Rule parts. The page also has the section headers and clickable links for Part 73 sections - apparently from the Archives web site. (The Wireless Bureau has a similar page with section headings and links at http://wireless.fcc.gov/rules.html .) These pages shows great initiative within MB and WTB and should be emulated throughout the FCC website. (A minor glitch on all these sites: I believe they are all linking to the Archives database of the published and bound CFR, which can be up to 15 months old at a given point. If this guess is true, they really should give a disclaimer that the current rule is really the published rule as amended by subsequent issues of the Federal Register as tabulated in List of Sections Affected .)
  

• Sixth, in ancient history there was one FCC licensing database for all radio license data. At sometime a decade or so ago it was decided that each FCC bureau would manage its own licensing and keep its own database. Thus the Universal Licensing System/ULS is only "universal" in the universe that is the Wireless Bureau, it doesn't include broadcast facilities, satellite facilities, HF broadcasting, or experimental licenses. However, the OET staff has done what Humpty Dumpty was unable to do - put it all back together in a virtual way. This is done by GenMen, http://svartifoss2.fcc.gov/reports/index.cfm which effectively merges all these databases and lets one do searches over all of them by doing the technical details for you.

• Seventh, WTB has an excellent page, http://wireless.fcc.gov/services/index.htm?job=wtb_services_home that has a listing of all of the various radio services it regulates with links to a more detailed discussion of each service. It is a clean, simple format that could be emulated by other bureaus.
  

The above items are true "points of light" on the FCC website. I hope this posting will inform people about their existence - which is not well publicized - and encourage the leadership at FCC to give me more positive examples to write about. There are real benefits of decentralizing much of the FCC website design and management to the bureaus and offices. However, more constructive interchange of success stories such as those above would also be helpful.

Engineer Staffing and Recruiting at FCC:
The Accumulated Impact of Yo-yo Budgets and Poor Planning

On August 7th, the FCC website had an unusual item on the main page:

8/7/06 FCC Seeks Applicants for 2006/2007 Engineer-in-Training Program.

News Release: Acrobat

Those of you who deal with the FCC regularly these days know that it is like dealing with the kremlin during the cold war - things are rarely what they seem and one must try to "read the tea leaves" to find out what is really happening. The present secrecy style of the "8th Floor" makes the Bush White House look like a model of transparency. So let me explain my interpretation here.

A significant fraction of the FCC's jurisdiction is technical even if it is of little interest to top managers. Large numbers of engineers are needed in FCC to handle routine licensing, radio enfocement, equipment authroization, and technical (usually Title III) rulemakings. While I don't have the current staffing numbers, engineers have usually outnumbered lawyers at FCC in terms of total numbers -- obviously not in positions of policy influence.

Over the past 20+ years the FCC has had yo-yo budgets as the "bureaucracy" has fallen in and out of favor with Congress and the White House. FCC is unusual in the federal bureaucracy in that it has one of the highest proportions of its budget going to personnel costs of any agency. (This is due to the lack of operational programs such as research or giving away money to people.) Any budget hiccup has a direct impact on personnel budgets and most FCC chairman over the past 2 decades had responded to budget problems by keeping staff but cutting hiring and training. Indeed, I believe that the only RIF (reduction-in-force) in 30 years was associated with closing some field offices during the Hundt chairmanship. The accumulation of these hiring freezes over 2 decades, coupled with many years of little or no training budget has been disastrous for technical staffing. (I must note positively that Chairman Powell dramatically reversed the decline of training budgets with his glitzy "FCC University" program.)

So today the FCC has tons of engineers in their 50s with 20 + years of experience who are eligible to retire and are doing so. Given the internal atmosphere at the FCC these days and the generous retirement benefits they are entitled to, especially if they joined in the 70s and are in the CSRS system, who would blame them! There is a severe shortfall of people behind them with 10-20 years experience due to the accumulation of hiring freezes and those who are there did not have the mid-career training they should have to keep them up to date.

So the FCC has reinstituted its on again/off again engineer-in-training program for entry level engineers. Of course, they missed the recruiting window for the Class of 2006 and with their current window of hiring in August and October are likely to pick up the dregs that no one else wanted to hire. Or perhaps the ones who were too spaced out to remember to look for a job their senior year? If you want good people, you have to recruit at college campuses early in the school year! You have to provide material that shows you are an attractive place to work and where there is important work. Do you see this on the FCC website?

If you have the patience to click throught the several layers ( Hint: start here.) needed to reach the formal announcement for these entry level jobs, you will find this description of the "job summary":

Job Summary:
The FCC is an independent
United States government agency, directly
responsible to Congress. The FCC was established
by the Communications Act of 1934 and is charged
with regulating interstate and international
communications by radio, television, wire,
satellite and cable. The FCC's jurisdiction
covers the 50 states, the District of Columbia,
and U.S. possessions.

Now is this what you would call a "job summary"? (It as actually the same text used for all the other jobs announced on the FCC website.) Some mindless bureaucrat just filled the space with the first verbiage he/she could find! Will this make a good impression on top students?

Note the typography. It is the same here as on the FCC website. Pica font (just like old typewriters) for the heading, with the text in the same size Geneva or Helvetica. Most 7th graders would be embarrassed to have such HTML on their web site!

Most technical employers and even government agencies seeking to hire recent graduates talk about the graduate educational opportunities they have available. Does FCC? Does FCC want people with no interest in continuing their technical education? (Well kept secret: FCC has a small program for selecting employees for a Master's degree and giving them top priority for training funds each year. This was started by Ed Thomas when he was head of OET.)

So what can be done?

FCC:

• Look at your recruiting website and try to make it as unbureaucratic as possible with useful information about what the jobs are actually about and why they are important.

• Emphasize continuing education - it is key to recruiting and keeping good engineers.

• Seriously consider rotation of entry level people to give them broad experience early in their careers. (See NRC for an example.)

• Go to top engineering colleges this Fall and recruit when you have a chance.

Industry

• Tell the FCC commissioners that techical staffing and continuing education is important.

• Tell Congress that yo-yo personnel budgets and training budgets based on scraps have an inevitable result on the whole telecom industry.

FAA Rulemaking on Spectrum Regulation:
Part 3

(First an unrelated point - Congratulations to Julius Knapp for finally being formally named Acting Chief of FCC/OET. It is an honor well deserved.)

If you surf over to the docket website you can see that the initial comments from the FCC-regulated spectrum user community are in. CTIA, NAB, PCIA (listed as Wilkinson Barker Knauer, LLP - their law firm), Sprint Nextel, and even FCC have filed. Due to the nature of Executive Branch rulemakings, these initial comments focus on Paperwork Reduction Act issues and are equally addressed to FAA and OMB which has oversight in such cases.

The basic point in all these comments is that FAA woefully underestimated the number of new filings from radio licensees and hence the total burden.

The Paperwork Reduction Act section of the NPRM asks the following questions:

The agency is soliciting comments
to—
(1) Evaluate whether the proposed
information requirement is necessary for
the proper performance of the functions
of the agency, including whether the
information will have practical utility;
(2) Evaluate the accuracy of the
agency’s estimate of the burden;
(3) Enhance the quality, utility, and
clarity of the information to be
collected; and
(4) Minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology.
entities.

No one addressed the last point.

I think the parties also missed another FAA statement:

There are two main qualitative safety
benefits of the proposed rule. First, this
proposal would enhance the protection
of air navigation aids in the vicinity of
private use airports with FAA-approved
instrument approach procedures.
Second, the proposed rule would
protect the flying public from signal
interference from broadcast sources that
could disrupt vital communication or
alter the performance of vital avionics.

At FAA, safety is first. FAA says this rule will further safety, spectrum users answer that they did their PRA paperwork wrong. What do you think will happen given the FAA culture?

It is clear from the NPRM that the FAA thinks there is no alternative to their approach which is less burdensome. Since their justification repeatedly focuses on the FM broadcast/ILS issue (and their actually give no examples of specific problems for the other 12 bands affected), someone should ask FAA why more than 10 years after ICAO Annex 10 (ICAO Convention, 61 Stat 1180. T.I.A.S. No. 1591, Annex 10) standards for ILS receiver immunity have been in effect worldwide, FAA still permits the use of ILS receivers not meeting this standard in US airspace and bases its technical criterion for declaring a proposed FM transmitter as a "hazard to air navigation" on the use of these poor receivers. While FAA accuses FCC of kowtowing to its licensees, it looks like FAA is kowtowing here to AOPA - the general aviation trade association.

Someone should ask FAA why in WRC-03 preparation and in FCC Docket 01-289 they opposed applying protection equivalent to ICAO Annex 10 to new DGPS receivers in the same band as ILS, thus potentially extending the FM EMI problem to a whole new class of systems? Indeed at WRC-03 the US suffered the embarassment of having its proposed international allocation for DGPS signals modified in Resolution 413 to include immunity from FM signals comparable to ICAO Annex 10. (See FNPRM, Docket 01-289, para. 50-55)

The types of EMI problems FAA is concerned about are fortunately very rare, such as the "needle in the haystack". Thus if FAA went ahead with the proposed rule, it would only be highly reliable if there was very high compliance. While major cellular carriers could be expected to maintain high compliance about filing - at the expense of paralyzing their expansion operations - there are many other FCC licensees who just don't have the regulatory resources to deal with this issue or even be aware of it. Thus expecting high compliance with the rules as proposed is naive. Cooperation, not confrontation, with FCC is needed.

The root causes of this problem are both lack of cooperation and mutual respect between FAA and FCC spectrum managers and the unwillingness of NTIA, which has delegated significant aeronautical spectrum management responsibility to FAA, to get involved in these issues. For example, NTIA lets FAA assign ILS frequencies in the 108-109 MHz segment (just above the FM broadcast band) without anyone doing any analysis of the impact of such an assignment on FM broadcasting in the area -- which could be significant in the case of major markets. NTIA has refused to pressure FAA to require ICAO Annex 10 immunity and fully backed FAA in the above mentioned WRC-03 proposal, with the resulting negative consequences for US prestige in ITU.

To NTIA: It's nice to say you are a powerful agency that exercises the President's 47 USC 305 spectrum authority. Here's a place where you can show you can contribute to solving problems by taking a leadership role, not by sitting on the sidelines.

Finally, the European Commission is talking about one spectrum management agency for all of Europe. Does the US really have to go from 2 spectrum management agencies to 3? Does the FAA even have the staff to handle the tsunami of applications that could result from their proposal?

FAA Rulemaking on Spectrum Regulation:
Part 2

On my June 27th blog entry I reported on this before the wireless press did. Indeed, there still hasn't been much mention in the press. The main TV broadcast lobbies, MSTV and NAB, have been strangely silent although I know they are working on the issue. I suspect they don't want their members to know that missteps during the DTV policy development era may have been a contributor to the FAA's overreaction.

I hear that FCC is busy drafting comments also. While FCC comments are necessary, what is really needed is a top level meeting between senior FAA and FCC managers to "bury the hatchet" and start working towards mutually acceptable solutions that balance all the public interests together.

If you go to the FAA website for this rulemaking you will notice that on July 24, about 6 weeks after the publication of the Federal Register Notice starting the rulemaking, the FAA finally released the whole NPRM.

Now you can read the actual wording of the proposed rule -- I promise it won't make you feel any better.