Will the TAC
Come Back?







I have written several times on the quiet apparent demise of the Commission's Technological Advisory Committee/TAC. Its last meeting as 7/20/06. The latest posted version of its charter expired November 19, 2006.

Thus I was encouraged by Acting Chairman Copps statement today to the FCC's Consumer Advisory Committee where he said,

"You folks work long and hard trying to help us—even when you must have wondered sometimes whether anyone was really listening. I can assure you that someone is listening now.

It’s time to change all that. It’s time for the CAC—and all of the advisory committees at the FCC—to be restored to their position as valued and independent counsel on the important communications policy issues we face."

The TAC resulted from parallel recommendations to the FCC from both the Engineering and Technology Practice Committee of the Federal Communications Bar Association and IEEE-USA, an organizational unit of the Institute of Electrical and Electronics Engineers, Inc. created in 1973 to support the career and public policy interests of IEEE's U.S. members. In a 6/5/08 letter to Chmn. Martin, IEEE-USA renewed its call for the TAC - a letter that was never answered. (I recall that under Chmn. Fowler, it was critical to answer all mail in a timely way.)

Frankly, its impact was limited due to the unwillingness of the Commission to ask it significant questions and the committee's attempt to be more useful by avoiding controversy. The Brookings Institution book, The Advisers, shows how other agencies have used such committees much more effectively.

Hopefully the new management will address this issue shortly.

Prison/Cell Phone Jamming Update

The Safe Prisons Communications Act of 2009 has been introduced to address the issue of those who interpret 47 USC 333 as limiting the FCC's ability to authorizing jamming in prisons. It was introduced as H.R. 560 and S. 251. As CTIA has correctly noted, FCC staff on numerous occasions has indicated that jamming is not allowed under Section 333. However, sometimes staff interpretations have not always been correct in every detail. The Commission itself has never addressed how to interpret Section 333.

For those searching for the inner truth of this section, as a public service SpectrumTalk has found for its readers the legislative history of the section. It was passed by Congress in January 1990 as part of P.L. 101-396 which mainly deals with FCC authorization. (It also included provisions for the relocation of the Honolulu FCC monitoring station - which still hasn't happened.)

Here are links to the committee reports.

House Report 101-316

Senate Report 101-215

A New Day Dawns at FCC:

Acting Chairman Copps
Addresses FCC Staff


Welcome change came to FCC yesterday with an address by Acting Chairman Copps to the FCC staff. Paralleling actions at the White House, Copps took quick action to try to undo some of the more pernicious policies of the ancienne regime and improve FCC effectiveness. Here is his statement on improved communications within FCC:

"Second is how Commissioners and Bureaus communicate between and among themselves. In order for all of us to do our jobs well, make reasonable policy decisions, oversee the regulated industries under our purview, and represent American consumers, we must improve these lines of communication as well. To promote more openness, starting this coming week, we will have a weekly Chairman’s Office Briefing with Bureau and Office chiefs, or their designees, and we will include a representative from each Commissioner’s office.

Opening up these meetings will, I am convinced, significantly improve the quality of our decision-making. It will also expedite the business of the Commission. I also want to ensure that my Commissioner colleagues have unfettered access to the Bureaus, with the presumption being that requests for information will be honored, and that there will be positive outreach from the Bureaus and Offices to them, with the presumption being that important information shouldn’t have to be asked for—it should be provided.

I realize this is not a bureau-created problem but, beginning now, requests from Commissioners’ offices—not just the Chairman’s Office—should be answered directly and as quickly as possibly, just as if the Chairman’s Office is asking for it and without the need for running those requests through the Chairman’s office first—the only exception I can currently think of being the very narrow one that such requests not be unusually time-consuming or necessitate an excessive juggling of Bureau or Office resources. In those cases, we will attempt to craft a workable solution."

I hope the new FCC will also consider one of my suggestions at the FCC Reform Conference:

"Open Door Policy
The House Energy and Commerce report documents how employees have been forbidden to speak to commissioners without the approval of the Chairman’s Office. This policy should be immediately revoked and a responsible system for staff members to express concerns over policy issues should be developed. The State Department model might be one for follow. Allowing responsible expression of employee concerns may actually decrease “leaks” as staffers feel that their thoughts are at least being considered rather than being totally ignored."

Congratulations Chmn. Copps on a good new beginning!

(From Ars Technica)

NCTA: "Once more - there are two (DTV) transitions…"

(UPDATED 1/28/09)

As Congress debates moving the DTV transition to June, most people think there is only one DTV transition, the one currently scheduled for 2/17/09. But as the above quote from NCTA points out there are really two in our future. The first one being the over-the-air transition that gets all the press and which is mandated by law, the second being a continuing evolution in the CATV industry to all digital signals within their networks. Let me say up front that I have no faults with what the cable industry is doing with their technology, but the dearth of public information from both the industry and the FCC is very likely to cause a problem when the "second transition" happens later this year. Former Chairman Kennard has called the (first) DTV transition "a potential Hurricane Katrina-like moment". The second could be almost as bad if the public is not told about it in an effective way.

Today's Washington Post had the following Q&A about cable and DTV by Rob Pegoraro:

Q You wrote that the digital-TV transition has nothing to do with cable TV going from analog to digital, but my cable company seems to disagree. What's the real story with digital cable?

A Digital cable, in which TV programs are compressed and encoded as a stream of ones and zeroes before being sent over cable lines, isn't new. Cable operators have been adopting it not because of the over-the-air DTV transition -- remember, they don't use the regular TV airwaves -- but for the same reason that wireless-phone carriers ditched analog cellular: digital uses much less of their bandwidth.

But the movement of many popular basic-cable channels from analog to digital is a more recent development.

This represents a problem for viewers with older cable-ready TVs, who now must rent a digital cable box. Many digital sets include a quadrature amplitude modulation (QAM) tuner that can receive unencrypted digital cable signals without a box, but these sets can have problems detecting available channels on a cable system's digital feed.

A second problem arises when cable companies suggest that their digital transition has been forced by the over-the-air DTV switch -- an argument as illogical as blaming digital migrations on the Redskins' late-season collapse. Herndon-based RCN, which provides service in the District, Montgomery County and Falls Church, has been the source of many such complaints from readers. RCN spokesman Michael Houghton said the company has "had relatively few issues of this type," considering the magnitude of its move to an all-digital system.

"We've cautioned all our members . . . to be very clear about not using the broadcast transition as a way to justify the migration of cable channels," wrote Brian Dietz, a vice president for the National Cable and Telecommunications Association.

Here's a quote from an NCTA-related website:

"If you are a cable customer, you may have to do little or nothing to enjoy your favorite programming after the switch to digital TV (DTV). Your cable provider will take care of the transition for you!" (Emphasis added)

Now what exactly is "your favorite programming", especially if you have an analog TV set connected directly to cable without a set top box? Most readers of this blog know what "must carry" stations are. But ask your neighbors who have cable/satellite/fiber if they really understand the difference about which of their basic tier signals are governed by the must carry rules and which are not, e.g. CNN, C-SPAN, MTV, Food Network etc.

FCC has dodged responsibility by issuing a Consumer Advisory entitled "DTV Transition Does Not Require Cable Systems to Switch to Digital" in an obscure location on both the FCC and dtv.gov websites:

The digital (DTV) transition applies only to full-power TV broadcast stations. It refers to the switch from analog to digital broadcast television.

The DTV transition does not require cable companies to switch their cable systems to digital.

For voluntary business reasons, your cable company may decide to move some cable channels from its analog tier onto a digital tier, or may switch to all-digital service and stop providing any analog service. This is not required by the government. (sic)


As long as your cable company offers any analog service, it must provide you with your local broadcast stations so you can watch them without a cable set-top box.

So FCC has denied all responsibility, which is strictly speaking correct. But then why did FCC send all those Letters of Inquiry to cable operators around Halloween?

There is some good news on yet another NCTA-related website, which has gotten little attention to date. The major cable operators will not switch basic tier channel to the digital tier during a 2 month "quiet period" :

Even with those efforts, the cable industry has been asked to consider taking additional steps to help smooth the DTV transition. In response to these requests, cable operators represented on the NCTA Board of Directors (who own and operate cable systems serving ninety percent of the nation’s cable subscribers) have committed to the following:

• Digital Migration “Quiet Period.” To minimize consumer confusion during the DTV transition, operators will delay the substitution of digital versions of existing analog channels from December 31, 2008, to March 1, 2009, except to the extent necessary to free up bandwidth to comply with the requirement to carry broadcast signals in both analog and digital formats or meet contractual carriage obligations.
• Analog Broadcast Basic Tier. Operators that offer dual carriage of broadcast signals would make access to the analog broadcast basic tier available under a promotional offer to new customers who subscribe just to that tier. This offer would be available beginning December 31, 2008, and would continue for at least 120 days after the proposed quiet period – through June 30, 2009. The service would be provided at the promotional price for at least one year after the customer subscribes.
• No Additional Charge for Equipment or Service. Recognizing that there is likely to be continuing consumer confusion even after the February 17, 2009 broadcaster DTV transition, operators would also provide the following additional assistance to all-analog cable households during and for at least 120 days after the proposed quiet period – through June 30, 2009 – to help them manage cable’s digital transition. If, during this period, an operator removes the analog version of a PEG or other channel from the broadcast basic or expanded basic tier and replaces it with a digital version of the channel on either of those tiers, the operator would make available to all-analog households, upon request, at least one free device that enables those households to view the channel. The device provided under this program would remain free for at least one year. There would also be no additional service charge for at least one year for the affected channel or, at the operator’s option, the broadcast basic or expanded basic tier where the digital version of the channel has been placed. Individual operators may choose to continue this program after June 30, 2009, or to initiate other similar programs after that date.
• Clear and Conspicuous Customer Notification of Any Channel Migration. Whenever operators cease transmitting analog PEG or cable programming services and begin offering those channels only in digital, they will provide clear and conspicuous notice to affected subscribers and franchising authorities not less than 30 days in advance. The notice would also inform subscribers that they have at least 60 days to avail themselves of the offers described above.

On point the cable industry is still evasive about: If a channel such as CNN is in the basic analog tier today, will it be viewable with a DTV receiver that has a 64-QAM input but no set top box? The answer apparently will vary from system to system and systems that will require set top boxes at a fee to watch former basic tier channels should prepare for major consumer backlash -- although they are well within their legal rights.

Indeed, the fact that we have no more convenient shorthand for talking about 64-QAM than its technojargon name probably indicates that industry hasn't been very interested in consumers connecting directly to cable without a set top box.

So ask your (non telecom policy wonk) neighbors with cable if they understand what is about to happen and see if they understand. Then visit a nursing home and see if the residents there understand that some of their favorite channels may disappear in a few months but that it is not FCC's fault.

UPDATE

For a specific example of the confusion that can result in this matter, here is an article from the 1/28/09 Washington Post on the changes by RCN in the Washington area. (Apparently RCN is not one of the companies on the NCTA board who have agreed to the voluntary "quiet period".)

Part of the article says,

"Television audiences across the country are getting ready for the switch to all-digital broadcasting scheduled for next month. But in the District, another TV transition is causing confusion for some cable customers.

Cable company RCN last week shut off analog channels in the Chevy Chase area, and it will do the same in parts of Northwest D.C. this week as it shifts to digital technology. The effort is part of an "analog crush," in which RCN is getting rid of analog signals to increase its channel offerings.

That means that customers used to plugging coaxial cable cords directly into a TV now will need a digital converter box for every TV set to get channels.

But for some, RCN's move from analog to digital service couldn't have come at a worse time."

John Adams
&
Kevin Martin

What do John Adams and Kevin Martin have in common?

Remember the "midnight commissions"? The lawyers in the readership certainly will remember Marbury v. Madison, 5 U.S. (1 Cranch) 137. On his last day in office, John Adams was busy signing commissions late into the night creating "midnight judges".


The above is from the FCC website today and shows some actions dated January 18th and 19th.

1/19/09
Chairman Martin Letter to Congressmen Waxman and Barton.
Acrobat

1/19/09
Chairman Martin Letter to Senators Rockefeller and Hutchison.
Letter: Acrobat
See Enforcement Bureau Notices of Apparent Liability

1/18/09
FCC's Wireline Competition Bureau and Office of General Counsel Issues Letter to Comcast Seeking Clarification of Comcast's Network Management Practices.
Letter: Word | Acrobat

Above is a slightly more readable version. Kevin Martin resigned effective January 20th. January 19 was Martin Luther King day, a federal holiday. January 18 was Sunday. So it looks like Chairman Martin was busy on two days other than normal business days tidying up his legacy. Just like John Adams. Who knew?

FHH CommLogBlog on above cable letter and NALs

It's Chairman Copps for Now

Today FCC released the following "Statement of Commissioner Copps on His Designation as Acting FCC Chair":

"I am honored to be designated today as Acting Chairman of the FCC. I thank President Obama for his confidence in me and for this opportunity to serve. I know that I have a truly gifted and terrific team to work with. I pledge every effort I am capable
of to help steer the Commission through its current transition to new leadership."

He also sent the following longer message to FCC staff that was not publicly released,

"Today I was honored to be designated Acting Chair of the FCC by President Barack Obama. I thank him for his confidence and pledge myself to do everything I can to help steer the Commission through the current transition to new leadership.

The success of my pledge depends on each of you. I have expressed many times my pride in working with what I consider to be the finest and best-performing team in government. So, first of all, I thank you for your work on behalf of the public interest. Public service is among the most honorable of callings and, with new challenges and opportunities before us, the work of the FCC becomes more important than ever.

We face many challenges. The immediate challenge is to do everything we can to minimize potential dislocation caused by the DTV transition. I expect this to occupy the lion’s share of Commission activity in the weeks ahead. Many of you have been putting in long days on this problem. Your work is immensely appreciated in grappling with what is surely one of the most serious challenges in Commission history.

I will be back to you more directly in the days just ahead about our first steps to improve the lines of internal communications within the Commission; to ensure that each of us is a full and active partner in the work of this great institution; and to cultivate the great synergies of talent and intellect that exist here. I know full well that we have the ability, the expertise and the sense of public purpose to step up to all of the communications challenges and opportunities of the Twenty-first century. We live in exciting times and work in a place that can be a central player in helping every American harvest those great opportunities. I look forward to working with Commissioner Adelstein, Commissioner McDowell and each of you on our important work."

Congratulations to Chmn. Copps on an honor well deserved!

"FCC Chairman Martin Issues Comprehensive Report Showing Commission's Success Over Past Four Years In Protecting Consumers And Promoting Competition"

The above is a headline that appeared on the FCC homepage on Friday, January 16, Chmn. Martin's last work day at FCC. Click on the cover above to get the whole 68 page report. The graphic design of the report is the best I have ever seen from FCC, almost certainly indicating that it was done by an outside contractor. It is odd that FCC isn't mentioned on the cover, though. It does not mention the results from FCC employees in the 2008 OPM Federal Human Capital Survey, but maybe they came out after the deadline for this document.

The report is amply illustrated with graphs describing Chmn. Martin's accomplishments. The tone of the report is illustrated by its conclusions, shown below:

"Technological advances, converging business models, and the digitalization of services have created unparalleled opportunities and considerable challenges. Under Chairman Martin’s leadership, the Commission has produced meaningful results for consumers. It put in place the appropriate regulatory framework that achieves the twin goals of spurring investment and establishing open platforms to deliver choice and innovation to consumers. In almost all cases vigorous competition has enabled consumers to get newer and more innovative technologies and communications services at ever-declining prices. Television programs are sold on the Internet and streamed wirelessly to mobile devices; teenagers communicate over IM, SMS and MySpace, not the landline phone; DVRs mean you watch your TV when and where you want; mobile phones show movies, play songs, photograph your kids, and even send you emergency messages. The Commission’s efforts in recent years have helped all Americans reap the rewards of convergence and the broadband revolution."

Globaucal.com: A Resource on Spectrum Auctions Worldwide






Before I moved to France in 2004, I attended an EC spectrum meeting in Brussels as part of a preliminary trip. At that meeting I met Gustave Barth, a charming Frenchman from Alsace who is retired from IBM. Gustave was very helpful throughout my stay in France in introducing me to the French spectrum policy community and telling me about his beloved Alsace. In 2007 he started a web site called Globaucal.com (Global Auction Alert) that deals with spectrum auction news. It is entirely noncommercial and doesn't even have ads for Amazon or other services that pay for click-throughs.

Since he is noncommercial and not self-promotional, he has not attracted a lot of attention - although his link has been on this blog since the site started. But it is a very useful site for watching worldwide trends in this area.

Note that since Gustave is a polyglot, the website accepts questions "in English, French, German, Spanish or Swedish".

Here are some of the articles recently posted:

	AWS-3 AUCTION LEADING TO FREE, CLEAN WIRELESS INTERNET ACCESS STILL ON THE U.S. HORIZON ?
	CANADIAN MID-2008 AWS AUCTION WAS GREAT SUCCESS
	CANADA's AWS SPECTRUM AUCTION EXCEEDS 2 BILLION C$'s EARLY JUNE 2008 AND GOES ON
	STRONG INTEREST IN 2.6 GHz BAND REFLECTED BY SWEDEN'S AUCTION CONCLUDED IN MAY 2008

Kevin Martin,
FCC Chairman,
to be Senior Fellow at the Aspen Institute

FOR IMMEDIATE RELEASE
Contact: Charlie Firestone
The Aspen Institute Communications and Society Program
(202) 736-5818
firestone@aspeninstitute.org

Aspen, CO, January 15, 2009—

The Aspen Institute Communications and Society Program announced today that Kevin Martin, Chairman of the Federal Communications Commission from 2005 to January 20, 2009, will become a Senior Fellow to the Program beginning immediately upon his departure from the Commission. This will mark the fourth consecutive FCC Chairman to take this fellowship at the Aspen Institute upon leaving the Commission. The tradition, beginning with Democrats Reed Hundt (1993-97) and William Kennard (1997-2001), continued with Republican Michael Powell (2001-05) and now Martin.

“Chairman Martin has been a longtime participant in Aspen Institute forums,” said Charles Firestone, executive director of the Program. “We look forward to working with him and to the advice he will give us.” Firestone also noted the past participation of the anticipated next Chairman, Julius Genachowski, in the Aspen Institute Forum on Communications and Society (FOCAS), an annual summer conference in Aspen, pointing out the non-partisan nature of the Program.

“I have long enjoyed and respected the Communications and Society Program,” Martin said, “and will relish the opportunity to reflect on the nature of leadership that I exercised in this field for the past several years.”

The Communications and Society Program serves as a non-partisan venue for global leaders and experts to exchange insights on the societal impact of advances in digital technology and network communications. It also creates a multidisciplinary space in the communications policy-making world where veteran and emerging decision-makers can explore new concepts and develop new policy networks.

=======

CHAIRMAN KEVIN J. MARTIN ANNOUNCES RESIGNATION
EFFECTIVE JANUARY 20th

Washington DC –Today FCC Chairman Kevin J. Martin announced his resignation from
the Federal Communications Commission, effective January20, 2009. The Chairman said he
leaves the office with great pride in the FCC’s accomplishments and with deep gratitude for
having had an opportunityto serve the American public.
Chairman Martin stated that his philosophyduring his tenure at the FCC “has been to
pursue deregulation while paying close attention to its impact on consumers and the particulars
of a given market, to balance deregulation with consumer protection.” He stated that he
“approached his decisions with a fundamental belief that a robust, competitive marketplace, not
regulation, is ultimately the best protector of the public interest and the best method of delivering the benefits of choice, innovation, and affordability to American consumers.”

During his tenure at the FCC, the Commission has focused on establishing the
appropriate regulatory environment that achieves the right balance between two competing
interests: (1) to encourage investment in communications infrastructure and (2) to make sure
consumers and innovation are not unintentionallyor intentionallydisadvantaged bythe owners
of that infrastructure. Under Chairman Martin, the Commission acted to level the playing field
so that all entrants could fairly compete, facilitating increased investment in the next generation
of communications infrastructure. At the same time Chairman Martin was able to push for more
open platforms to spur innovation on the edges of these networks and deliver lower prices,
improved services and greater choice to consumers.
In his letter of resignation to President Bush, Martin wrote, “I have had the privilege of
serving at the Federal Communications Commission for almost 8 years, including 4 years as the
agency’s Chairman. During this period, we have seen a telecommunications industryundergoing
rapid and unprecedented change. As a result of the market-oriented and consumer focused
policies we have pursued the American people are now reaping the rewards ofconvergence and
the broadband revolution including new and more innovative technologies and services at ever-
declining prices.”

Upon his departure from the Commission, Chairman Martin will serve as a Senior Fellow
at the Aspen Institute in Washington, D.C.

=========

STATEMENT OF COMMISSIONER MICHAEL J. COPPS
ON CHAIRMAN KEVIN MARTIN’S ANNOUNCED DEPARTURE
JANUARY 15, 2009

Kevin Martin’s announcement of his imminent departure from the FCC is historic
for the institution and poignant for me, personally.

Kevin and I arrived at the Commission almost simultaneously. We went through
Senate confirmation together in 2001, but because someone over at The White House
screwed up his paperwork, Igot the seniority edge on him bya few days—but he
trumped that a few years later by becoming Chairman. We were different ages, had
different backgrounds, different political affiliations and sometimes very different
underlying ideas about how best to serve the public interest. But we have been through a
lot together. There were frequent instances when, I am pleased to say, we were able to
find common ground. The now famous—and eventually infamous—Triennial Review
brought us together as we fought for what we thought Congress meant when it instructed
the Commission to encourage competition in the telephone industry. We developed,
early on, a shared concern over the excesses of violence and family-unfriendly fare on the
broadcast airwaves. We each had a special interest in public safety and we found
common ground on ways to move it to the forefront. I watched Kevin, as Chairman, put
public safety front-and-center here at the Commission, which is exactly where it long
needed to be. His leadership after Hurricane Katrina devastated the Gulf Coast will
surelybe remembered as one of the highlights of his, or any, Chairmanship. We made
progress together on instituting and enforcing Internet Openness Principles and took first
steps down a road toward a network neutrality regime. We pushed for a more open
wireless marketplace. And we pulled together trying to make the Wilmington, North
Carolina DTV transition a success.

None of this is to paper over our very real differences on many matters of
substance and process, with media consolidation, broadband competition policy and
Commission transparency coming immediately to mind. But this is not the time or place
to revisit things divisive. Sometimes Kevin confounded Commission-watchers by putting
forward very original ideas that those who didn’t know him might never have expected.
This made some folks happy, some unhappy and others occasionally frantic. But it could
also be refreshing. To his credit, his proposals often challenged his fellow Commissioners
to get under the hood and examine their own assumptions. He compelled us to develop
our own ideas to address the problem at hand. The Rural Health Care Pilot Program was
one such idea and it was, and is, a signal accomplishment of Kevin’s Chairmanship.
I also welcomed his efforts to increase the number of public Commission hearings
around the countryon such issues as media ownership and net neutrality. It’s no secret
that Iwould have liked even more such hearings, but the record is that under Kevin, the
Commission didget out of Washington and hear from the public and from experts on
public policyissues that cried out for such input.

Over the years, Kevin and I had some very candid discussions—with the bark off,
as Lyndon Johnson used to say—as we sought common ground on contentious matters.
We quickly discovered that we could talk candidly, respect confidences, and, not
infrequently, find ways to move the Commission’s business forward. When our
discussions did not yield agreement, we disagreed without ever being disagreeable. When
we gave our word to one another, that word was honored. We understood that we came
to some issues with fundamentally different ideas about what the Commission ought to
be doing and how it ought to be doing it, but we recognized that each of us believed in
our individual approaches, and we shied away from attributing bad motivation to each
other. This didn’t resolve all problems—don’t read more into this than I’m saying—but
it allowed us to build a working relationship on a personal level that I think was helpful.
We should also remember that those High Noon moments at the Commission,
when the cameras pack this room, the media is hanging on everyuttered word and
perceived nuance, and everyone is waiting to see who is going to draw their Colt 45 first,
are not the daily norm here. Probably 90 per cent or more of what the Commission
decides is decided through consensus. Our discussions are not duels in the sun, but more
often searches for understanding the facts of a case, the meaning of a statute, or the
arcania of legislative history.

Kevin Martin will hopefully continue to contribute, no matter where he is, on the
issues to which he has devoted so much time and energyat the FCC. I look forward to
his ideas and input and to many opportunities to talk and work together in the years
ahead. He has had a busytime of it here—first as a staffer, then as Commissioner, and
finallyas Chairman. He works long, he works hard and he brings keen and creative
intelligence to whatever he does. I imagine these have been very demanding years for
Kevin and Cathie and their two—soon to be three—children. The prospect of having at
least a little more relaxed pace must look veryattractive to them. Beth and Icertainly
wish Kevin and his growing family all good things on the road ahead, and we look
forward to continuing the friendship that we have developed. I thank him for his many
kindnesses and courtesies to me, for his kind words today, and for the friendship we will
continue to enjoyin the years ahead.

FCC Morale:
A Review of New Data from OPM

The Federal Human Capital Survey is an admirable Bush Administration initiative that OPM describes as,

"a tool that measures employees' perceptions of whether, and to what extent, conditions characterizing successful organizations are present in their agencies. Survey results provide valuable insight into the challenges agency leaders face in ensuring the Federal Government has an effective civilian workforce and how well they are responding."

As I wrote 2 years ago, the FCC has used its status as an independent agency to opt out of participation in the past even though other independent agencies did participate. (This year as last time, the Nuclear Regulatory Commission (NRC) got very high marks in the survey. The obscure Court Services and Offender Supervision Agency, a new agency that is smaller than FCC, also ranked in the top 10 agencies in job satisfaction. So the survey was not biased against independent agencies or small agencies.)

Below are two groups of selected questions from the survey. The first group consists of questions for which the FCC responses were more positive* than the government-wide response. The second group is a sampling of questions for whihc the FCC responses were more negative than the government-wide response. The 2nd column is the % of FCC responses that were positive, by comparison the next column shows the overall government-wide positive response. The last column shows the positive response rate from NRC - an indication of how well a top-ranked agency can do.

Question	FCC Positive Response	Government -wide Positive Responses	NRC Positive Responses
Questions for which FCC is better than government-wide responses
(1) The people I work with cooperate to get the job done.	86%	84%	92%
(7) I have trust and confidence in my supervisor.	70%	64%	77%
(9) Overall, how good a job do you feel is being done by your immediate supervisor/team leader?	70%	66%	80%
Questions for which FCC is worse than government-wide response
(3) I have enough information to do my job well.	66%	73%	85%
(4) I feel encouraged to come up with new and better ways of doing things.	52%	61%	73%
(5) My work gives me a feeling of personal accomplishment.	60%	73%	81%
(37) I have a high level of respect for my organization’s senior leaders.	38%	52%	72%
(38) In my organization, leaders generate high levels of motivation and commitment in the workforce.	31%	40%	62%
(39) My organization's leaders maintain high standards of honesty and integrity.	38%	50%	74%
(40) Managers communicate the goals and priorities of the organization.	49%	60%	78%

The first 3 questions above show that FCC employees are more satisfied with their own work group and immediate supervisors than federal employees in general. However, the bottom group of questions shows major negative feelings about top management and the agency as a whole. Clearly FCC employees have a lack of respect for "senior leaders" and doubts about their "standards of honesty and integrity."

I hope that the new leaders of FCC will review this report carefully and formulate a plan to turn the situation around quickly.

* Methodology: the numbers shown are the sums of the data from the OPM report in the "Strongly Agree" and "Agree" columns.

DOJ IG Wins "Lawyer of the Year"Award

FCC IG Under Investigation

The Washington Post recently had an editorial praising Department of Justice Inspector General Glenn Fine:

"Glenn A. Fine has had an extraordinarily busy year. As inspector general of the Justice Department, Mr. Fine has overseen investigations of politicized hiring practices, breaches of security involving classified documents, and the FBI's prosecution of the war on terrorism and its interrogation of terrorism suspects. His conclusions often have been unflattering to his nominal colleagues at the department, yet they have always been measured and backed up by copious documentation. As a result, his reports have not always been welcomed -- especially by those under scrutiny -- but they have rarely been questioned or criticized as being politically motivated or factually flawed. That's a rare feat in today's ultrapolarized Washington, and it is a testament to the professionalism of Mr. Fine and his office."

The editorial was occasioned by Mr. Fine being recognized by The National Law Journal as "Lawyer of the Year". NLJ wrote,

"Fine and the team he has assembled in the past eight years emerged as beacons of nonpartisanship and independence as they thoroughly investigated problem after problem and revealed where the department went off track. Fine's office also recommended steps to department leaders and Congress for restoring the department's position as the nation's pre-eminent law enforcement agency."

The NY Times quoted Mr. Fine talking about his job, “You have to recognize that you’re not going to be popular.”

The FCC's Inspector General has also be in the news, but in a different context: The 12/08 House Energy and Commerce Committee report on FCC reported that there were several complaints about him pending before the Integrity Committee of the President's Council on Integrity and Efficiency. These complaints are reported to deal with possible violations of

"federal procurement regulations while hiring outside contractors and overseeing contracts, demonstrated incompetence in overseeing audits, and creat(ing) a hostile work environment in his own office."

The House Committee report added that

"several FCC employees ... described the Inspector General as actively supporting the Chairman and other FCC officials, while discouraging independent investigations by his own office when the outcome might be critical of FCC management."

FCC's IG describes his office's job as follows,

"The Office of the Inspector General (“OIG”) is dedicated to ensuring compliance with the requirements of the Inspectors’ General Act and assisting the Chairman in his continuing efforts to improve the effectiveness and efficiency of the Federal Communications Commission."

Under the Inspector General Act, FCC's IG's responsibilities are exactly the same as DOJ's (with the minor exception that under § 8E the DOJ IG is under special restriction on investigations of certain very sensitive criminal and intelligence matters, so FCC's IG actually has more independence.) The FCC's IG's role with respect to the Chairman is governed by § 8G(d)

"Each Inspector General shall report to and be under the general supervision of the head of the designated Federal entity (e.g. FCC), but shall not report to, or be subject to supervision by, any other officer or employee of such designated Federal entity. The head of the designated Federal entity shall not prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation, or from issuing any subpoena during the course of any audit or investigation."

But the DOJ IG is also under the "general supervision" of the Attorney General per § 3(a). The duties and responsibilities of both IGs under § 4 are exactly the same.

A review of the FCC's IG's semiannual reports shows a continuing lack of any criticism of FCC management except in the most minor matters. (For example in the most recent report, they mildly criticized Media Bureau's handling of new non-commercial educational (NCE) FM stations and also commented on a MB database system:

"The OIG concluded that, while the Media Bureau articulated legitimate reasons for proceeding as it did, this office will make recommendations to help devise a system that will better address the needs of the regulated community."
...
"During this period, the OIG initiated an inquiry into allegations that the Media Bureau’s Consolidated Database System (“CDBS”) was flawed. CDBS is the licensing application software system that the Media Bureau has made available for public filings since 2000. Because remedial efforts regarding this system were already underway,OIG noted the alleged flaws to the Office of Managing Director and may test the new system once it is publicly available."

Why had it taken 8 years to take corrective action in the database system? What was the root cause of the problem? The world wonders.

The current FCC IG and all his predecessors had been long time career FCC employees with no previous investigative experience before becoming IG. This is probably the root cause of the long term ineffectiveness of the FCC IG office with respect to internal operation of the FCC. Reliability and unwillingness to "shake the boat" may have been a key factor in selecting these individuals. The House report suggests that the FCC IG become a presidential appointment subject to Senate confirmation. However, that would be a time consuming legislative change and there are already too many such appointments in the federal government.

A more pragmatic approach is to select a new IG from career IG staffers in larger agencies with proven independence, judgment, and investigative abilities. I am sure that some of Mr. Fine's senior staffers, for example, would jump at the opportunity of being the IG of an independent agency like FCC. I hope the new Chairman and the oversight committees give this serious consideration.

Does FCC need a better IG only to ferret out internal wrongdoing? No. The presence of normal checks and balances, like having an effective IG, will discourage some of the bizarre things that have been happening in recent years and make the FCC more self-correcting and credible. Also as the NY Times article on Mr. Fine points out, a credible IG would make his findings of no improprieties credible also.

Other agencies' IGs in action:

• HHS: "The inspector general of the Department of Health and Human Services reviewed all 118 applications for marketing drugs and medical devices that were approved by the F.D.A. in fiscal year 2007. It found appalling failures to collect information and act on it."
• Interior: " The inspector general of the Interior Department has found that agency officials often interfered with scientific work in order to limit protections for species at risk of becoming extinct, reviving attention to years of disputes over the Bush administration’s science policies."
• USDA: "The Agriculture Department's new testing plan for mad cow disease, which calls for testing up to 220,000 cows by the end of 2005, is seriously flawed and will result in ''questionable estimates'' of the prevalence of the disease in the nation's cattle, according to a draft report by the department's inspector general."
• EPA: "In a rebuke of the Bush administration, the inspector general of the Environmental Protection Agency said on Thursday that legal actions against major polluters had stalled because of the agency's decision to revise rules governing emissions at older coal-fired power plants."
• DoD: "The report by the Pentagon inspector general found the employee, David Tenenbaum, an Orthodox Jew, was targeted by counterintelligence agents because of his religion. The conclusion vindicated Tenenbaum, who was never charged with a crime and has spent a decade trying to clear his name. "

Note: Comments here on the FCC IG's past performance relate to his role with respect to internal FCC operations. A large part of the FCC IG position deals with misuse of Universal Service Fund money - a different issue about which no representations are made.

It's a Busy Week at CTIA
Protecting the Use of
Cell Phones by Prisoners

Don't we all find cell phones convenient? Well incarcerated murderers and drug dealers find them very convenient for continuing their livelihood. Of course, if they are unfortunate enough to be in a federal prison they may not be able to do so because federal prisons have permission from NTIA to jam contraband cell phones. But those fortunate enough to be in state and local prisons are happy to know that their jailers are subject to FCC regulation and CTIA is doing everything it can to let murderers, drug dealers, and other assorted felons keep in touch with their pals.



On Tuesday, CTIA and their fine legal team filed a Petition for Reconsideration of D.C. Wireless Jammer Demonstration that had been authorized by WTB last week for a grand total of 30 minutes tomorrow! Not pleased that FCC did not immediately kowtow to their demand, they went to the federal court today and filed Petition for Writ of Mandamus on Wireless Jammers .



CTIA bases its logic on 47 USC 333:

No person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this chapter or operated by the United States Government.

We have heard the court has asked FCC to reply by 8 PM tonight. Jeff Silva at RCR has written a nice article about this. Clearly it got a lot of interest since he got 14 responses posted in the first 2 1/2 hours after its release. Some on each side of the issue.

Does Section 303 unambiguously prohibit jamming by even a state government in an area where it has prohibited any cellphone possession or use? CTIA is looking for a showdown on this issue.

For a trade association that like to be proud about its contributions to public safety this is an odd battle to pick. Wouldn't it be better to sit down with prison management and explore a well engineered prison jamming system that protects outside users and then compare it with other alternatives?

I heard from Chris Guttman-McCabe, VP of Regulatory Affairs, at CTIA.

"While we believe that prisoners should not have access to wireless phones while incarcerated, there are other, non-interfering and legal ways to find and take the phones out of their hands. There are several companies that provide wireless detection systems that can be used by jails to identify and confiscate phones, and that do not interfere with wireless communications. As the FCC previously acknowledged, Congress has been clear in prohibiting the use of jammers in state prisons.”

So why doesn't CTIA fund a demonstration project of their preferred approaches? State and local governments are not exactly overflowing with funds these days.

I predict that this will be a battle CTIA will regret having started. Even if they should win in court, they will get reversed quickly by Congress in a precedent that they will not like.

What is CTIA's real agenda here? Some corrections officials suspect it is to protect the revenue stream of CTIA members from prepaid (e.g. high price per minute) cell phones that are generally used as contraband. I am not so cynical and suspect they are afraid of the "camel's nose under the tent" problem in that prison jamming might lead to restaurant and theater jamming - which are allowed in some countries. But it is a far cry from jamming cell phones in prisons where their possession is illegal to jamming in reaturants where the use is just obnoxious.

New FCC Reform Website

Yesterday was the FCC Reform conference sponsored by The University of Colorado's Silicon Flatirons program and Public Knowledge. Much of the conference focused on the keynote paper by Phil Weiser, "FCC Reform and the Future of Telecommunications Policy". A new website on FCC reform has the paper, along with several responses including mine. The site allows you to make your own suggestions! (Perhaps taking a clue from the transition website.)

(Wikipedia photo)
Surf on over!

Here is a summary by Gigi Sohn of Public Knowledge of the ideas suggested for the new FCC by the conference speakers:

• make policy decisions based on objective data and facts, not ideology and industry-purchased data;

• engage in more strategic planning and be forthright about its policy goals;

• restore procedural fairness, including, but not limited to stopping abuses of the ex parte rules, making sure Notices of Proposed Rulemaking actually propose rules, and issuing texts of decisions on the day the item is voted upon;

• be more transparent in two ways: first, it must give the public more information about what decisions it is making, how it is making them and why; and it must allow for the public to have more meaningful input into the policymaking process. The former might necessitate revision of the Government in Sunshine Act, which requires public notice and a public meeting anytime more than two Commissioners meet at one time.

• be reorganized into functions, not into technological silos;

• be staffed with people whose mission is to promote the public interest, not to get a high paying job with industry;

• be staffed with a diversity of expertise (e.g., more economists, technologists and real business people) and cultural experiences);

• rely more on adjudication in enforcement matters where there are facts in dispute;

• better balance the power between the Chair and the Commissioners;

• develop and empower staff in a way that restores morale and makes them feel like vital players in the operation of the agency;

• lead, listen and learn, particularly through input by the academic community;

• ensure that every staff member has a clear role that promotes the agency’s policy goals; and

• promote innovation.

700 MHz and Wireless Mics:
No Resolution Yet

Readers may recall that on November 28, 2007 we published a posting entitled "700 MHz Auctions About to Start - But FCC Hasn't Evicted Wireless Microphones Yet". Well, in the past 13+ months:

• FCC has finally proposed evicting them,
• NAB, MSTV, and Shure have asked for an extended phase out period including public safety and other licensees being required to notify wireless mic users to vacate - but not giving the slightest hint how to find this unlicensed and lawless crowd; and recently
• A coalition including Alcatel-Lucent, APCO, AT&T, CTIA, Motorola, NENA, PISC, Qualcomm, and Verizon Wireless wrote FCC on this issue.
  

The coalition letter urges

"the Commission to take swift action to ensure that the use of low power auxiliary stations (e.g., wireless microphone systems) in the 700 MHz band does not threaten the future use of important spectrum that is being made available with the DTV transition."

So a lot has happened since SpectrumTalk first pointed out the problem, but nothing has been resolved. Maybe when FCC has to deal with deciding between pleasing the broadcasters and pleasing public safety it really doesn't know what to do?