FCC Filings Questioned
In a filing in the AWS-3 Docket, 07-195, M2Z Networks (a former client of mine) has raised unusual accusations about the candor of a large FCC licensee, T-Mobile, in multiple filings before the Commission. The M2Z filing is unusual because of the usual "gentlemen's agreement" not to raise such issues, much as the CIA and KGB did not try to kill each other's agents during the Cold War.
The following quote from the beginning gives a hint of the tone.
"Perhaps more fundamentally, however, ex parte filings and other submissions to the FCC must be truthful. If parties advocating before the FCC believe that they can provide false testimony with impunity, the level of detail found in their submissions quickly becomes a secondary concern.
As the attached document demonstrates, for nearly two years, T-Mobile-USA has engaged in a scheme to deceive the Commission concerning (among other things) its indefensible decision to deploy filters in its AWS-1 devices that access the AWS-3 band (for which T-Mobile has no authorization).
(T)hree executive-level employees of T-Mobile committed perjury by providing false sworn testimony to the Commission. These false declarations/affidavits were submitted by: (i) Neville R. Ray, T-Mobile’s Senior Vice President for Engineering and Operations; (ii) Cole Brodman, T-Mobile’sChief of Technology and Innovation, and (iii) Joachim Horn, CTO, T-Mobile International AG."
The easiest contention to understand deals with an affidavit filed by T-Mobile and signed by Neville R. Ray Senior Vice President, Engineering and Operations T-Mobile USA, Inc.
"Over the next 18 months, I fully expect several million AWS-1 handsets will be with consumers. These handsets have used standards-based equipment, including filter technology, that has been reviewed and approved by the Federal Communications Commission for use in the United States."M2Z's filing states at p. 6,
"The Commission does not “review and approve” filter technology and does not regulate mobile devices in the manner suggested by Mr. Ray. The declaration claimed that T-Mobile’s AWS-1 filters received Commission approval, yet there were no facts presented to the Commission (nor indeed could there have been any such facts in existence) to support that false assertion. T-Mobile’s selection of filters for its mobile devices, like the selections made by all wireless carriers, was not reviewed or approvedOn March 31, Howard Symons, counsel for T-Mobile filed a brief ex parte statement reporting telephone calls to various FCC officials and stating,
by the Commission."
In each conversation, the T-Mobile representative noted that M2Z’s filing raised no new issues but rather sought to disparage T-Mobile by baselessly characterizing T- Mobile’s disagreements with M2Z as “perjury” and “lack of candor.” The T-Mobile representatives indicated that T-Mobile will shortly be filing a written ex parte that responds in full to M2Z spurious attacks"I will post a link to the T-Mobile response when it is available.
When T-Mobile responds to these accusations, they might also want to address the candor of the following chart they submitted to FCC on 9/22/08 :
Does the T-Mobile AWS-1 receive filter used in US equipment really cutoff at 2155 MHz, the upper boundary of AWS-1 as the diagram shows or does it cover the AWS-3 band as Mr. Ray's statement implies? Perhaps T-Mobile will carefully parse all the sentences in question and show that they were not wrong, just ambiguous and thus not incorrect.
I suspect that the root cause of this problem has been the Commission's laxity in enforcing many of its rules. Thus certain bad practices have crept into the comment process. While the T-Mobile executives almost certainly don't have to fear indictment for perjury, hopefully this episode will make everyone be more careful in filing before FCC, make all filings more credible, and speed resolution of controversies in rulemaking.