FCC Disinterest in Spectrum Policy:

WRC Gets Snubbed

The Washington Post today had the following article, based on a Communications Daily article, about an FCC snafu dealing with WRC-07, the major ITU radio conference. While the FCC is traditionally respected around the world by other regulators as a leader, this snub to the WRC will only hurt US prestige at the ITU and will have long term consequences since other countries send the same people to all ITU conferences year after year and have a longer term view than the "8th floor".

Readers may wonder whether I disagree with Chairman Martin's spectrum policy. The answer is simple: He and the 4 other commissioners are in charge and I respect their decisions. My main criticism is the lack of any clear policy, lack of effective interaction with the public and spectrum community, and increasing secrecy in policy formulation. Wireless and other spectrum using activities are not only a large industry but it is key to increasing productivity and economic growth in the US. Spectrum policy does not deserve to be the stepchild of FCC policy deliberations. The US economy will pay the long term consequences of the present disinterest long after the present commissioners are gone.

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FCC, Barely Present and Accounted For
In the Loop, By Al Kamen Wednesday, October 31, 2007; Page A17

Seems there's some tension at the Federal Communications Commission -- not just over policy matters but even over noncontroversial matters.

We're told no one at the FCC was particularly excited about going to the World Radiocommunication Conference in Geneva starting last Friday, but commissioner Robert McDowell volunteered to attend the opening session. He pretty much had his bags packed and was ready to go but Chairman Kevin Martin, who's had some differences with fellow Republican McDowell, wouldn't sign off, Communications Daily reported.

An FCC presence at the conference apparently isn't critical, but it's helpful to have a high-level person there to show the flag and signal that the issues are of interest to Washington. Back in 2003, commissioners Kathleen Abernathy and Michael Copps both attended.

Late Thursday, Martin tapped commissioner Deborah Tate, who was already going to be in Europe by the end of the week, to attend, the trade paper reported. But she wasn't going to make it to the opening sessions, marking the first time in quite a while that no commissioner was on hand.

European Commission Workshop on
Interference Management:
Why Can't FCC Address These Issues?

On October 9, 2007, the European Commission held a workshop in Brussels on interference management - the real basic issue in spectrum policy. Having killed off the "interference temperature" rule making without any conclusions, except that that the topic was controversial, FCC has lost all leadership in the key areas of defining what is interference and how to define the acceptable impact of new services.

The reality of spectrum management is that, despite what incumbents say, every new transmitter since Marconi's second transmitter has had an interference impact on all previous radio systems. The challenge for FCC and other regulators is balancing that impact against the benefit of new services.

I applaud the bold leadership of the European Commission, a former client, in this area and only wish that our FCC could find the courage to discuss these issues.

This article is reprinted from London-based PolicyTracker, Europe's premier spectrum policy newsletter, with kind permission. (Hence the odd spelling.)

No "magic bullet" replacement for traditional means of preventing interference Alternative ways of controlling interference have only limited application, says a new study. However, it is expected to make controversial recommendations like removing reference to safety services from the definition of harmful interference. This study was commissioned by the European Commission to examine whether spectrum could be used more effectively by controlling interference itself, rather than relying on the traditional method for achieving this: limiting the technical parameters of transmitters. The project, managed by Eurostrategies sprl and LS Telcom, has yet to come to final conclusions but initial findings suggest that this alternative approach has its limitations. Techniques to control interference itself (known as interference management) do not 'produce an all-encompassing improvement in the efficiency or effectiveness of spectrum use' nor are they a replacement for standard techniques, says Richard Womersley of InterConnect (a Eurostrategies partner). However, 'the application of such techniques in some circumstances does provide alternative and additional tools to the spectrum manager which inform and encourage more flexible access to the radio spectrum,' he adds. Potential for spectrum release One of these interference management techniques is to regulate receivers as well as transmitters and the project team found that in some circumstances this produced impressive benefits, while in others it had no effect. In the case of point-to-point microwave links in 7GHz, 13GHz, 18GHz and 23GHz reasonable expectations of improvement in receiver performance didn't free up significant amounts of spectrum. However, in GSM the introduction of Single Antenna Interference Cancellation (SAIC) trialled in a 2004 study would, the team estimated, produce a reduction in spectrum requirements of up to 15%. Hugh Collins of InterConnect analysed the economic implications for each technology and said that introducing SAIC would cost only a few euros per terminal, way below the break-even level of €15-46 per terminal which represents the economic value of the spectrum savings. So this he argued, was a 'very worthwhile change to make.' But the most striking improvements in spectrum efficiency could be achieved by modifying terrestrial digital television (DVB-T) receivers to incorporate antenna diversity i.e. having two or more antennas. This would allow the creation of a higher modulation scheme with six instead of four programmes per channel, potentially releasing 78MHz. Hugh Collins estimated that this spectrum would be worth €49 billion to the mobile industry, but required the modification of 181 million fixed TV receivers and 124 million mobile TV receivers, producing a break even modification cost per terminal of €158. 'So that's very likely to be worthwhile as well,' he told the audience at a seminar to discuss the interim findings in Brussels this month. However, broadcasters pointed out that releasing this amount of spectrum wasn't currently possible because this wasn't how the allocations has been planned at RRC-06, nor could fixed receivers necessarily take advantage of the diversity technique, a point accepted by the project team. They said this was a scenario intended to stimulate debate. No need for regulation One mobile operator pointed out that if the economic incentives were already there to improve receiver performance, there was no need for regulatory intervention. If a company can improve its own spectrum efficiency through receiver modification these incentives certainly exist, but that isn't the case if the improvements depend on the actions of others. Jan Outters from the German broadcasting research Institute, IRT said consumers wouldn't update their TV receivers in the cause of spectrum efficiency: 'People don't change [their set top boxes] every 18 months like their phones. If we need to change these to release spectrum there is nothing to motivate the users.' The project team said they weren't in favour of compulsory regulation of receivers, rather they wanted policies which encouraged beneficial modifications, like a secondary market for spectrum licences. 'In a spectrum trading environment there would be an incentive for an operator to pay to change those set top boxes,' said Hugh Collins. Confusing definitions Having ruled out regulation of receivers the main controversy in the team's draft proposals comes in suggestions to tighten up definitions and administrative procedures. Particularly contentious is a proposal to remove the specific reference to 'safety services' in the Authorisation and R&TTE Directives. These currently define harmful interference as that "which endangers the functioning of a radionavigation service or of other safety services or seriously degrades, obstructs, or repeatedly interrupts a radiocommunication service operating in accordance with the applicable Community or national regulations." The team argue that this wording is unclear. "Endangering" and "obstructing" could mean that no actual harm is caused to the service; "repeatedly" could mean just two instances. They also question the need for a specific reference to radionavigation or safety services as there is no list of what these are in either Directive. Almost anything could be considered a safety service, including GSM phones, so it is better to ensure equal treatment for every service. The project team has proposed a new definition: "Harmful interference means interference which degrades or interrupts radiocommunication to an extent beyond that which would reasonably be expected when operating in accordance with the applicable Community or national regulations." Richard Womersley says this doesn't diminish the protection for safety of life: considering the range of services now used for that purpose the new definition may increase the protection. Furthermore, by introducing the concept of reasonableness it recognises that a certain level of interference is unavoidable and there needs to be a rational debate about whether these unwanted signals are actually causing harm. The project team also argues that the way harmful interference is treated under the relevant Commission decisions and EU Directives is confusing. The Authorisation Directive doesn't need to mention these at all, they argue, because they are addressed elsewhere, like in the R&TTE Directive. This should incorporate the new definition discussed above and clarify that harmful interference is in fact a subset of electromagnetic disturbance, and can arise from sources other than radio equipment. Technical studies too slow? At the Brussels seminar the most controversial issue was criticism of the compatibility studies carried out by the European regulator's organisation, CEPT. Respondents to a survey carried out by the project team said CEPT was too slow in carrying these out; insufficiently transparent; and some studies carried out by member states were not objective. These claims were hotly disputed by many delegates at the seminar, with the support for CEPT coming from the public sector, corporate and regulators alike. This highlighted an apparent contradiction between what spectrum stakeholders say in public and what they say in anonymous surveys. The project team suggested that the current arrangement could be improved by allowing organisations other than CEPT to carry out or to validate these studies under the direction of the Commission. The standards body, ETSI, the European Radiocommunications Office (ERO), and private sector test labs were all mentioned as possibilities, with one favoured option being to delegate technical work to a department of the European Commission, the Joint Research Centre. The report is expected to be published by the Commission in December.• 26.10.07 By Martin Sims

© PT Publishing 2005

Negotiated Rulemaking:
Why it Fails at FCC

Negotiated Rulemaking (sometiems called Neg/Reg) is an alternative to traditional notice and comment rulemakings. It is a member of a family of techniques known a "Alternative Dispute resolution"/ADR. Neg/Reg is a voluntary process for drafting regulations that brings together those parties who would be affected by a rule, including the Government, chartered as an advisory committee under the Federal Advisory Committee Act, to reach consensus on some or all of its aspects before the rule is formally published as a proposal.

Congress was so interested in this approach that in 1990 it passed the Negotiated Rulemaking Act to remove any uncertainty about the legality of this approach, establish guidelines and requirements, and encourage its use. The fact that it has been used four time recently by the Department of Education shows that it is not out of favor in the Bush Administration. So why doesn't the FCC use it? Simply because it has never been successful at FCC in the past. But there is little insight on why it works at other agencies and not at FCC. In this post I will discuss my theory.

I was heavily involved in the FCC's abortive efforts to use Neg/Reg for the "Big LEO" rule making that developed the rules for Iridium and other MSS systems. That effort foundered on an error the responsible senior FCC staffer made: He assumed that in case of deadlock that the advisory committee could act on majority vote. Unfortunately, Motorola had read the legislation better than he had and even hired a former law school professor of the Common Carrier Bureau Chief to explain that any outcome other than consensus must be agreed upon at the beginning of the advisory committee.

The agencies where Neg/Reg has worked successfully, such as EPA and Labor are all Executive branch agencies with a unitary head, as opposed to multimember regulatory commissions. The Nuclear Regulatory Commission has used Reg/Neg but not for about a decade.)

The theory behind Neg/Reg is that the directly affected parties meet face to face and in the spirit of Getting to Yes they negotiate tradeoffs with each other that minimize their "pain". They do this in fear that if they do not meet consensus the government decision maker will make some other set of tradeoffs that does not balance their concerns as well.



In Executive Branch agencies there is a sole decision maker, e.g. Secretary of Labor, who may or may not be directly accessible to the parties in the rule making. In the case of FCC there is a 5 member commission more accessible to major corporations than many agency heads. Thus there is always a hope that the commissioners might be more favorable than tradeoffs with one's opponents on the committee. The "Big LEO" deliberations were further complicated by the fact that there was a vacant commissioner's seat at FCC at the time so it was easy to rationalize that the next commissioner would agree with your position. Hence the parties could net reach closure.

I suggest the Commission try to avoid this problem of having a multimember Commission that can reopen the all issues if negotiations fail by using the provision of Section 5(c)(1) of the Communications Act (47 USC 5(c)(1) ) which allows the Commission to "delegate any of its functions" to "an individual commissioner". Thus if could establish a Neg/Reg committee to work on a new rule and at the same time establish a backup plan that Commissioner X is delegated to resolve the issue expeditiously if the negotiations fail. The key here is to scare the parties into resolving things expeditiously by making the necessary compromised among themselves. While this solution is not always in the public interest*, it often is. In any case, a timely decision is often better than a very lengthly "optimum" one where the costs of delay outweigh the benefits of optimality. This is especially true with new technologies that move at Internet speed while FCC decision making goes at a much slower pace.

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* I recall a decision in the late 1980s dealing with increasing the power of educational FM stations at the lower end of the FM broadcast band. TV channel 6 licensees, directly below this band, were concerned about possible interference and privately negotiated a compromise with the education FM crowd. They jointly presented it to the Commission. While the Commission accepted most of the package of compromises, they modified them slightly in favor of the education FMers stating that "compromises negotiated directly between the directed affected parties are often, but not always, in the public interest." In particular they stated concern that the TV channel 6 licensees were more powerful and had great resources than the FMers and thus could not negotiate as equals.

Robert Weller to Rejoin FCC -

Replacing Dr. Robert Cleveland
in Charge of RF Safety Program

Reliable sources report that Robert Weller will return to FCC shortly to head OET's RF Safety Program. This is a Commission-wide program dealing with the safety of all FCC-regulated transmitters to humans in their vicinity.

Dr. Cleveland joined FCC in the early 1980s and had a pioneering role in developing the safety regulations we have today, steering a careful path between ambivalent industry interests in the matter and the legal and public interest concerns of the FCC. He was the main author of several FCC proposals and decisions in this area as well as key FCC publications such as:

OET Bulletin No. 56: Questions and Answers About Biological Effects Potential Hazards of Radiofrequency Electromagnetic Fields (Fourth Edition, August 1999)
OET Bulletin No. 65: Evaluating Compliance With FCC Guidelines for Human Exposure to Radiofrequency Electromagnetic Fields

He retired in April and moved to the West Coast and is now involved with a new firm, RF Check, Inc. in the RF safety area. He was one of the finest public servants I ever worked with and the public owes him a debt for his ethical representation of health concerns in the face of what was often massive resistance from industry.

Bob Weller worked at FCC from 1984 to 1993 in a number of positions in the former Field Operations Bureau, now Enforcement Bureau. I worked closely with him on the "Playboy Jamming Case", US vs. Haney, a felony case involving the intentional jamming of a communications satellite. This case was the first prosecution under 18 USC 1367 and raised numerous novel legal and technical issues in showing that Mr. Haney, an employee of the Christian Broadcasting Network, had used its equipment to disrupt programming that he disliked. Bob contributed greatly to the team that ultimately was successful in a jury verdict in this case. He finished his first FCC service as head of the FCC's Denver office. Since 1993 he has been an Associate in the California engineering firm of Hammett & Edison, Inc.

Since Dr. Cleveland retired, Ed Mantiply who worked with him at FCC has been ably filling in. Ed previously worked on RF safety issues at EPA before joining FCC a few years ago.

(An old picture showing Ed Mantiply, left, and Robert Cleveland, right, doing RF safety measurements in the field.)

Microwave News has reported that the key RF safety issue facing FCC is

(w)hether to replace the FCC's current cell phone safety standard with the much looser limit adopted by the IEEE in 2005 (see our January 14, 2005 post). Motorola and Nokia have been plotting this change for a long time. Motorola's C.K. Chou devoted years to co-chairing the committee that developed the IEEE standard. Some observers are surprised that industry hasn't yet formally petitioned the FCC to make the switch. Maybe it's waiting for the Bushies to appoint a sympathetic someone above Mantiply to push the IEEE standard through. The industry game plan will become clearer in due course.

In the past, FCC has consulted with health-related agencies such as EPA, NIOSH and OSHA on RF safety levels for FCC regulations and implemented the consensus level suggested by the health-related agencies. (Amusingly, the Pentagon sometimes found that the levels picked were embarrassing, even though they didn't apply to Federal Government use regulated by NTIA, and pressured to be included as a "health-related agency" in the consultations and consensus building. So far, FCC has resisted such pressure.)

• Note: Since I wrote this post some of the original sources have commented that I missed a subtlety: the RF safety program is not a formal organizational entity at FCC. Dr. Cleveland was not formally a supervisor, but rather the de facto leader under the supervision of the branch chief of OET's Technical Analysis Branch, presently Ron Chase. Bob Weller is filling Dr. Cleveland's position/slot in the OET staffing plan but the details of what role he will play, vis-a-vis others, will play out with time. - MJM 10/31/07

FCC
Web
Site:

The Nation's

Communications Policy "Attic"

The Smithsonian Institution is sometimes called the "nation's attic" for its jumbled collection of historical artifacts. The jumbled nature of the FCC's web site deserves a similar name. All sorts of information is there, it's just hard/nearly impossible to find. Last month the IP Democracy blog labeled FCC "The Worst Communicator in Washington". While much of the post deals with the specifics of the 700 MHz auction proceeding, here are the comments about the web site:

"The FCC’s poor communications skills are evident all the way down to the agency’s website, that most public and constant of communications tools. Have you ever tried to search filings or decisions at www.fcc.gov? I’ve been conducting research at the Commission’s web site for years and years and my heart sinks every time I have to do so.

Let me put it this way: without a “Docket Number,” the average user can’t find anything on the FCC’s website. Even with a Docket Number, users have to choose from among eight different types of databases and if, by chance, the right database is selected, the results can be a garbled, gargantuan mess. Getting a hold of the Docket Number is not the easiest thing in the world for the uninitiated, either.

On top of the searchability problems (and they are vast, vast, just trust me), nothing at the FCC’s website is in HTML, beyond the basic informational, static shell. Everything is published in Word (!) or Acrobat, and sometimes .txt, so even if a user finds the relevant document, it has to be downloaded or viewed in just plain text format. A real nightmare."

Readers may recall previous posts of mine on the topic. They haven't had much impact, so maybe it is time to be more specific:

1) Search engine. In a large website, an efficient search engine is vital. As mentioned previously, FCC search engine is dated - apparently dating from the early Hundt chairmanship. Many other agencies just use Google's free customized engine.

2) Clutter, clutter everywhere. Apparently there is no self control at all on putting more information or more links on the FCC home page. The graph below shows the number of words and links on the home pages of various agencies:

(Raw data available here.) FCC has more links on its home page than any other agency and just loses to Interior, that Internet powerhouse, on number of words! Truly record setting clutter!

a) Too many links for the same document. Does any other agency routinely give links for both MS Word and Acrobat copes of every document? (Not to mentioned .txt versions of older documents. There were good historic reasons for why this started but they no longer apply.

[Note that since this was originally written, an FCC source told me that the reason for the retention of both .txt and .doc versions of documents is requests from the visually disabled community who have trouble with .pdf documents and special software they use. Whether this is still true is uncertain as I note that no other agency, even the HHS group that works with the disabled, has this multiformat clutter. I suspect that the problem is more the lack of HTML versions of official documents that most other agencies have. I note also that in the docket files in ECFS many of the documents are in scanned versions of .pdf that are also unreadable to the disabled. FCC has never done anything to urge commenters to avoid scanning documents into .pdf by using electronic conversion.]

Above is data from EDOCS (in this case Docket 04-186) that gives 15 different links for the same NPRM! Card-carrying FCBA members and their paralegals may understand why and which one they want, but I doubt if anyone else does. I can not find similar clutter at any other agency.

b) No other federal commission clutters its home page with individual commissioners's links. Not to mention a separate link to their photos. Don't believe me? See if you scan find comparable links to commissioners on the home pages of: ABMC, CPSC, DNFSB, EEOC, FRB*, NLRB**, NRC, NTSB, SEC

* Note FRB description of recent improvements to their home page. FCC home page design is little changed, except in increased clutter, since the early Hundt chairmanship.

** NLRB was recently honored as having one of the 5 best web sites in the federal government. The citation said “Excellent navigation scheme. Site is well organized and

very easy to follow. Good guidance. Electronic reading room with a lot of available information.” FCC was not one of the other 4 honorees.

Award winning NLRB web site

3) Is anyone in charge here? I suspect that the root cause of this problem is that management of the web site has been delegated to such a low level that the webmaster can not say no to anyone's request to add more clutter to home page. Somebody has to be in charge for both the content and overall design that reflects well on the agency and its mission.

4) Difficulty of finding information without prior details. As the IP Democracy quote above says,

"Let me put it this way: without a “Docket Number,” the average user can’t find anything on the FCC’s website. Even with a Docket Number, users have to choose from among eight different types of databases and if, by chance, the right database is selected, the results can be a garbled, gargantuan mess. Getting a hold of the Docket Number is not the easiest thing in the world for the uninitiated, either."

Card carrying FCBA members, or their paralegals, don't have a problem here. But anyone else does. It is clearly the least user friendly part of the web site. For the elite involved in huge mergers there is a more user friendly interface: The OGC Transaction Team runs a nice corner of the website dedicated to "transactions" - generally meaning large corporate mergers. It is one of the bright spots of the FCC website, but why does this type of convenience only apply to mergers? The Transaction team site is indexed by the pending (and past) major mergers by name - not multidigit docket number - and gives access to both filings and FCC actions. By contrast, those of us who deal with rulemakings must navigate both EDOCS and ECFS to get documents and in most cases have no index.

OET has another user friendly way to find dockets in its jurisdiction. Both the OGC and OET indexes and great contributions to the FCC website that address the concerns that IP Democracy mentions, but why this piecemeal approach for only 2 small parts of the Commission? Why not a general solution?

5) Lack of links to specific FCC rules or statutes. In the few cases where the website cites a specific law or FCC rule, there is either no link to it or just a link to the general GPO CFR website. Perhaps no one has realized that GPO allows links to specific laws, e.g. 47 USC 151 or rules, e.g. 47 CFR 2.701. GPO even has a page telling you how to generate such links.

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A problem recognized is a problem on its way to a solution

FCC seems to be in a bad state of denial with respect to its home page and web site. some of these problems can be fixed simply, other will need a more expensive site redesign. But recognizing the problem and interacting with the public on alternatives would be a good place to start.

GAO Report
on
FCC Secrecy:


Some Parties Get More Information
than Others

Today GAO released a new report on FCC. In an FCC with unprecedented levels of secrecy and where the staff is held back from normal dialog with the public that was considered normal for decades, the "right people" on the outside still get access. It is just the public and the "wrong" people who can't get information.

As a regulatory agency, FCC is routinely lobbied by stakeholders with a vested interest in the issues FCC regulates. It is critical that FCC maintain an environment in which all stakeholders have an equal opportunity to participate in the rulemaking process and that the process is perceived as
fair and transparent. Situations where some, but not all, stakeholders
know what FCC is considering for an upcoming vote undermine the
fairness and transparency of the process and constitute a violation of
FCC’s rules. Since the success of lobbying for a particular issue can be
highly dependent on whether an issue is being actively considered, FCC
staff who disclose nonpublic information about when an issue will be
considered could be providing an advantage to some stakeholders,
allowing them to time their lobbying efforts to maximize their impact. As a
result, FCC may not hear from all sides of the issue during an important
part of the rulemaking process. This imbalance of information is not the
intended result of the Communications Act, and it runs contrary to the
principles of transparency and equal opportunity for participation
established by law and to FCC’s own rules that govern rulemaking.

House telecom subcommittee Chairman Edward Markey (D-Mass.), was quoted in RCRNews as saying,

“The FCC has a duty to be above-board in developing and implementing its rules,” said Markey. “When the ‘corporate insiders’ and ‘K-Street’ crowd have the inside track on decisions critical to telecommunications, media, broadband or wireless policy, then the public and consumers are at an inherent disadvantage. Both the law and the public interest require that rulemaking decisions adhere to principles of openness and objectivity.”

An FCC spokeman was quoted by RCRnews as saying,

“The commission actively reaches out and works with consumer and public-interest groups, not only industry. We have always been very open and transparent about what is on circulation and we are exploring ways in which we can make our processes even more open and transparent.”

I suppose FCC could try to redouble its attempts at secrecy and muzzling the staff - whihc is having a terrible impact on morale. (I note that the GAO home page proudly notes that it is one of the "best places to work in the Federal Government" - the survey that the FCC dodged.) Chairman Martin, my suggestion is to improve dialog with the public and industry and let the sun shine in. If a little sunshine is good, more is better. I heard today that staffers are now formally forbidden to talk to commissioners without the Chairman's approval. Maybe I am naive, but why?

Some agencies give employees the formal right to communicate with top management about matter that concern them. Frankly, if you give such a right to FCC employees you will have fewer leaks - although everyone knows most press leaks have always come from the "8th floor".

Of course, the report did not pick up on the recurring ex parte violation problems that were previously reported here and have yet to be addressed. No ex parte enforcement in several years? Not even a warning letter?

NY Times coverage
Washington Post coverage