SpectrumTalk

The Job Isn't Finished Until You Complete the Paperwork!

On March 17th, the Commission patted itself on the back about the adoption of the Docket 09-36 NPRM shown at left. The press release said,

"The Federal Communications Commission (FCC) today proposed to allocate spectrum and adopt service and technical rules for the utilization of new implanted medical devices that would greatly expand the use of functional electric stimulation to restore sensation, mobility and function to paralyzed limbs and organs. These implanted neuromuscular microstimulators would function as wireless broadband medical micro-power networks (MMNs) within a patient. By eliminating the wires now used to interconnect multiple implanted neuromuscular microstimulators and the external power source for the implants, MMNs would greatly reduce the risk of infection and increase patient mobility and system reliability.

Several commenters assert that this technology could revolutionize medical treatment and therapy for millions of people living with brain and spinal cord injuries and neuromuscular disorders such as multiple sclerosis, polio, cerebral palsy, and ALS (amyotrophic lateral sclerosis, often referred to as "Lou Gehrig's Disease”), as well as numerous other neurological disorders. It could be used in conjunction with next-generation prosthetic limbs to provide wireless sensation and control to the prostheses. Of particular note, this technology can provide an important tool in the medical treatment and care of numerous U.S. soldiers who suffered spinal cord, brain, and other serious injuries in Iraq, Afghanistan, and other missions abroad.

It is hard to imagine a more positive action for the Commission to take than proposing such rules to help disabled veterans and other with degenerative diseases. Acting Chairman Copps added,

I am pleased to support this Notice of Proposed Rulemaking, which examines the possible allocation of additional spectrum and service rules for use by advanced wireless devices that could significantly enhance the quality of life of many Americans that suffer from a wide array of neuromuscular disorders.

Confirming bipartisan support for this issue of zero controversy, Commissioner McDowell added,

I am delighted to finally be able to vote to approve this notice of proposed rulemaking, which was originally filed with the Commission in September 2007. Acting Chairman Copps deserves praise for bringing this exciting proposal forward and giving it the attention it deserves. Our action today takes another step to improve the quality of life for millions of Americans with impaired mobility and paralysis.

However, repeated searches of the Federal Register show no sign of the NPRM. As in all such NPRMs the comment period is tied to Federal Register publication, in this case ending 120 days after publication. Every day spent getting this to the Federal Register is a day that our disabled veterans are denied this technology.

Now we previously wrote about how it took over 3 months, from November 4, 2008 to February 17, 2009, for the TV whitespace, Docket 04-186, decision to get published. But that was a very contentious proceeding worthy of detailed 8th Floor oversight. Why is this one taking so long? A review of the text of the NPRM shows none of the "red flags" like complicated diagrams/charts or incorporation by reference of outside documents that sometimes cause the Office of the Federal Register to send items back to FCC for ministerial corrections.

Our best guess is that the continuing interregnum and the focus on DTV is causing all spectrum issues to get very low priority. However, similar low prioritization has been going on for at least 2 years now for a variety of reasons. While I have not asked my former colleagues in FCC/OET about the cause of the current hangup on this NPRM, it is almost certainly the notorious BARF process that requires multiple reviews of formal FCC documents by 8th Floor staffers who are currently focusing on other issues. Improving productivity and throughput may require better

• trust and
• cooperation and
• accountability

between the 8th Floor and the career staff.

Spectrum is a highly regulated area and innovation and capital formation for such highly regulated innovative technologies needs interaction between industry and the regulator. The FCC's UK counterpart, Ofcom, is able to make progress in all its "product lines", e.g. spectrum, broadcasting, telephone pricing, etc., at the same time. I hope the incoming team takes decisive action to stop this ongoing spectrum paralysis at FCC. If technology to help disabled veterans can't get reasonable timely consideration, imagine the challenges facing other technologies.
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UPDATE

On May 6 FCC released an Erratum making two small changes to the adopted rules.

On May 13 the NPRM was finally published in the Federal Register, 57 days after adoption!

While the Commission was struggling to get this published during the focus on DTV, it did have time to adopt a new NOI on the issue of Arbitron's "Personal People Meters". I note that even the Commission can't decide if it has jurisdiction in this matter, stating in para. 27,

Commenters that advocate particular actions should specifically address the Commission’s statutory authority to take such actions. Does the Commission have jurisdiction to require the submission of information concerning PPM methodology or to regulate PPM methodology? If so, what is the basis
of that jurisdiction?

I suspect that the paralysis over the MMN NPRM is the overreaction several years ago to the release of an item with a staff edit that offended someone on the 8th Floor. This resulted in the present BARF process that requires multiple reviews by 8th Floor staffers of even the most obscure edits to the most obscure agenda items. If FCC is ever to improve its productivity in its jurisdiction, the 8th Floor has to learn how to delegate, manage, and hold staff accountable for these ministerial functions. That way it can achieve productivity comparable to its UK counterpart, Ofcom, which is able to "rubs its stomach and pat its head" at the same time and not get paralyzed by focusing on one topic at a time.