Letter to FCC on ex parte Compliance Issues

October 13, 2006

Sam Feder, Esq.
General Counsel
Federal Communications Commission
445 12th St., SW
Washington, DC 20554 USA

Dear Mr. Feder,

I am writing you to express concern over the inconsistent compliance of commenting parties with the FCC’s ex parte rules. Over the past two decades, chairmen and commissioners have consistently said that the FCC should have fewer rules and enforce those that remain. At present, FCC has two basic filing requirements for parties that contact FCC staff on rulemakings:

• 47 CFR 1.1206(b)(1) requires that ex parte filings be made "no later than the next business day after the presentation".

• 47 CFR 1.1206(b)(2) states "More than a one or two sentence description of the views and arguments is generally required."
  

Let us consider two large broadcast trade associations: NAB and MSTV. NAB appears to consistently comply with both requirements, occasionally even filing on the same day as the meeting, while MSTV consistently fails to meet one or both of these requirements. Examples are shown in the attachment.

Typical MSTV discussions of the substance of a meeting are "We discussed interference issues relating to the placement of unlicensed devices in the television band" or “to discuss issues in the above referenced proceeding”.

By contrast, here are the discussions of meetings from two different recent NAB filings:

• During the meetings, we discussed the importance of Commission adoption of flexible service rules for the nascent in-band/on-channel digital radio service. We also emphasized the need for FCC authorization of supplemental audio channels and AM nighttime operations as necessary to the digital radio transition currently underway. NAB urged swift Commission action on these issues, as discussed in our filed comments in this proceeding. - http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518396642

• We stressed the need to prevent cable operators from stripping out portions of local broadcasters' free, over-the-air programming streams. We emphasized that advertiser supported broadcasting programming must obtain carriage to reach viewers and, thus, to be economically viable. Carriage would also serve the public interest because the viewers would be assured of access to broadcast multicast streams, including localprogramming. Finally, we confirmed that NAB continues to monitor the continued rollout of digital television, including multicast programming. NAB is willing to regularly share such information with the FCC. - http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518359890
  

I have never attended law school, but I think that the minimum requirement of 47 CFR 1.1206(b)(2) is quite clear and when it says "More than a one or two sentence description of the views and arguments is generally required" a reasonable person would expect 1) at least 3 sentences, 2) some discussion of the party’s views, and 3) some discussion of the party’s arguments. Now perhaps if the meeting dealt solely with previously filed material then an explicit reference to that material might suffice. But if that is your interpretation it would be clearer for all involved if it was documented in either the rule or some other readily available material. The last available clarification of ex parte requirements, the 10/11/2000 Public Notice states,

• Where there is ambiguity about whether data or arguments are already in the public record, the spirit of our rules would counsel parties to briefly summarize the matters discussed at the meeting. http://www.fcc.gov/Bureaus/OGC/Public_Notices/2000/fcc00358.doc

Of course, it is hard to imagine that most ex parte meetings do not deviate from previously filed material.

The 2000 Public Notice reminded us of what the intent of these rules are”

• The Commission’s ex parte rules enhance participation in permit-but-disclose proceedings and protect the integrity of the Commission’s processes by ensuring the transparency of these proceedings.

I note that the Commission consistently advocates transparency for other countries as they develop their telecommunications regulatory schemes. As you may recall, while I worked at the Commission I had the opportunity to work for almost a year at the Japanese Ministry of Posts and Telecommunications and was able to observe an “opaque” system first hand. Having had this experience I can personally vouch for the superiority of the systems the FCC has selected. (Since that time, the Japanese system has improved in many ways.)

A search of the Commission’s web site indicates that there apparently have never been a sanction under 47 CFR 1.1216 (at least since the web site was created more than a decade ago) and that the Commission last issued a formal warning to a party about ex parte violations on March 7, 2002 . I also note that on the OGC ex parte page there is no information about enforcement of the rules or even to whom suspected violations should be reported.

My personal research seems to indicate that the FCC is the only federal regulatory agency relying on written ex parte filings from outside parties on their meetings with agency staff in rulemakings, as opposed to adjudicatory proceedings. This tentative conclusions is based on a CFR search on “ex parte” that only finds citations for other agencies dealings with adjudicatory proceedings, communications with staff at other agencies who indicate surprise at FCC’s procedure and indicate that they deal with ex parte meetings by writing memos for the public docket file themselves, and the presence in other agencies’ docket files of staff memos documenting meetings, e.g. http://dmses.dot.gov/docimages/pdf97/411551_web.pdf .

I note also that the present FCC ex parte filing requirement for outside parties has a basic disincentive for compliance: Generally the parties making a presentation to FCC staff would prefer that those holding conflicting viewpoints know as little about the meeting as possible and find out as late as possible. This is because timely knowledge lets those with opposing positions rebut promptly what was said, particularly if there were factual misstatements. The longer the original presentation remains in the minds of the FCC staff unchallenged, the more likely it is to be believed in the long run. Clearly the intent of the present rules is to encourage debate and minimize the potential for believing erroneous facts, but the present level of noncompliance and the apparent agency disinterest in enforcement may encourage parties to attempt noncompliance.

I recommend that the Commission either advise commenting parties that it intends to enforce the rules that are in place or that it clarify or modify the rules so that they are enforceable. The fact that two well respected and well funded broadcast trade associations have such a different interpretation of the rules, at the very least, shows confusion about what the rules are and your intent to enforce them.


Sincerely,

/s/

Michael J. Marcus

Attachment

Recent filings by NAB that appear to meet the letter and spirit of ex parte rules:

7/7/06 Docket 99-325
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518396642
6/15/06 Docket 98-120
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518359890
6/14/06 Docket 98-120
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518359823
6/9/06 Docket 98-120
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518359495
6/8/06 Docket 98-120
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518359466
6/9/06 Docket 98-120
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518359465
6/7/06 Docket 98-120
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518359098
6/6/06 Docket 98-120
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518358927
4/3/06 Docket 03-187
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518332696
10/25/05 Docket 05-24
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518173505


Recent MSTV filings that all appear to violate 47 CFR 1.1206(b)(1)
(except those marked with *) and all appear to violate 47 CFR 1.1206(b)(2):

http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518510021
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518510012
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518335029
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518188391
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6516283268
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6516282342
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518510022
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518510015
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518462117
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518359759
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518357430
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518112428
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518007956
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518007951
*http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6517082137
*http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6516883681

MSTV May Now Be in ex parte Compliance
for a
Record Breaking 156 Days!

Since it is the holiday season, we thought we would emphasize the positive. The last clear violation of the Commission's ex parte rules by MSTV was their 7/28/08 filing in Docket 98-120. (In that filing they "fuzzified" the date of the meeting by stating it was "Thursday". Since 7/28 was a Tuesday than the latest possible date of the meeting was 7/24 and thus they did not file "no later than the next business day" as required by 47 C.F. R. 1.1206(b)(1)) However, since FCC's General Counsel has an unwritten interpretation of the Commission Rules that it will not accept complaints about ex parte violations from anyone who is not a party to that proceeding, we have not notified them of this issue.

In the 156 days since then, MSTV has filed 43 ex parte filings, none of which directly appear to violate the rules - a new record for them! (They have filed nothing since Halloween - they must have had a great party that day!)

Now there are 2 gray cases so we are reluctant to be too definitive here:

On 10/28/08 MSTV filed a one pager on Docket 04-186 with the following substance:

"Based on press accounts we express concerns over two issues. We emphasized our interference concerns with placing 40 milliwatt unlicensed devices on the first adjacent channel. We also noted that there is no justification for proposing a process to approve devices that rely exclusively on sensing to avoid interference. No documents were exchanged or submitted."

One might question whether this meets the 1.1206(b)(2) requirement that

"Memoranda must contain a summary of the substance of the ex parte presentation and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required."

However, possible violations of this type are so common at FCC these days that there is nothing unusual here. The classic MSTV violations of recent years were much skimpier than this filing and were filed late - an issue not subjective in nature. Only a naive Carterite would think this filing did not meet the rule.

But then there is the case of the MSTV 10/9/08 filing in Dockets 04-186 and 02-380. This document oddly forgets to mention what date the meeting took place.* (However, the 5 paragraphs of content clearly is detailed enough.) We could, in theory, tell OGC about this since we are a party to one of these proceedings. However, we have been told by OGC in a 7/28/08 letter that "Accordingly, please be advised that future allegations may, if the facts warrant, be handled in a more summary manner". So clearly OGC, which has not taken any enforcement action in the ex parte area for at least a decade, doesn't want to hear from us on ex parte violations. (This matter is subject to Petition for Review pending before the Commission.)

So let's also assume in the holiday spirit that the 10/9/08 filing concerns a meeting that happened on the 8th or 9th and the omission of the date was an innocent oversight by hard pressed lobbyists and their prominent law firm fighting to defend TV station owners against the evils of Silicon Valley, thus giving MSTV a perfect record for the past 156 days.

Now MSTV members, used to the most aggressive macho representation before the FCC of any major party appearing there, may wonder why their trade association has become as wimpy as NAB - whose ex parte compliance record has been perfect for years. But we will leave that to the MSTV membership to work out with the MSTV staff.

SpectrumTalk just wants to thank MSTV on behalf of the public for its improved behavior and attention to ex parte rules and hopes it continues into the New Year.

Monday's Reforming the FCC conference in Washington will have a lot of discussion about the dismal state of ex parte compliance at FCC - at least in MSTV's case we have positive news and I will be sure to include it in my remarks.

* Seems oddly reminiscent of their 7/28/08 filing discussed above that "fuzzified" the date of the meeting.

Marcus Spectrum Solutions Files Petition Asking FCC to Pay More Attention to ex parte Violations

“I believe that transparency is best achieved through the creation and publication of clear rules. However, for the regulatory regime to be successful, these rules must also be strictly enforced. Based on personal experience, I know that the U.S. regulatory model has only been successful when the FCC has enforced its rules vigorously. Failure to enforce rules sends the inappropriate signal that companies may engage in anticompetitive behavior or other unlawful conduct with impunity.” -- Remarks of Commissioner Kathleen Q. Abernathy, Market Reform: A Tool for Achieving Universal Access Panel, ITU Global Symposium for Regulators. Geneva, Switzerland, December 8, 2003

A petition recently filed by your blogger's consulting operation asks the full FCC to review a decision by its Office of General Counsel (OGC) rejecting several ex parte complaints that dealt with late filed documents that also appeared to lack the detail about an oral meeting required by the FCC's ex parte rules:

"Memoranda must contain a summary of the substance of the
ex parte presentation and not merely a listing of the subjects
discussed. More than a one or two sentence  description
of the views and arguments presented is generally required."
-- 47 CFR 1.1206(b)(2) 

Careful readers will recall that this issue started with a posting here almost 2 years ago in October 2006. The posting was the text of a letter to OGC pointing out that while NAB has a meticulous record of detailed timely filings of oral contact with FCC on ongoing rulemakings, MSTV appeared to be a serial violator of the 47 CFR 1.1206(b)(2) requirements with respect to both timeliness and detail. OGC finally got around to answering this letter more than 5 months later without addressing the specifics of the 16 MSTV filings listed that appeared to violate the rules. A later OGC letter explained the absence of any statement on these specific allegations stating,

“We understood your October 13, 2006 letter to express general concern about the enforcement of ex parte rules, with the particular meetings cited merely being examples.”

OGC has now rejected several subsequent ex parte complaints dealing with different later MSTV filings on grounds such as,

• an undocumented requirement that only parties with standing in a proceeding can file complaints,
• that there is an unspecified “statute of limitations” on the timeliness of complaints,
• that the standard of compliance is the practice of other parties in the same proceeding,
• that the presence of multiple complaints is important, and
• that the complainant must prove substantial harm.

Perhaps these would be good policies, perhaps not. In any case they are policies that are embodied neither in the Commission’s regulations nor in its past decisions (let alone court decisions) nor even in advisory information on its website.

It is amusing to note that on the very day OGC both rejected the MSS complaint and discouraged MSS from filing future ones, MSTV made a late filing in CS Docket No. 98-120 in which they took the unusual step of "fuzzifying" the date of the actual meeting by referring to it as "Thursday" and not giving the actual date.

As far as I can tell, the last time FCC has even chastised anyone on late filed somments was in 2002. There is no evidence I can find that FCC has ever taken action under §1.1216 to punish in any way any party for repeated violations of ex parte rules. While the vast majority of ex parte filings at FCC are compliant, repeated violations by one party that escape even a warning letter may, in the words of Comm. Abernathy, send "the inappropriate signal that companies may engage in anticompetitive behavior or other unlawful conduct with impunity."

Readers are encouraged to form their own opinions of the issue here and contact FCC with their own thoughts. At present no docket number has been established for this issue and it is not anticipated that public comment will be requested. This also means that there is no online access via ECFS for information on this proceeding. However, I will post links to any documents I receive. Alternatively, readers may just respond to this posting on the link below.

Procedurally, the MSS petition is now a "restricted proceeding" and the rules of 47 CFR 1.1208 apply. In the off chance that FCC might enforce this section more than it enforces §1206, those communicating to FCC on this issue are advised to serve MSTV per §1208.
===============
ECFS-like Log of Documents on Petition

MSS Petition of 8/25/08
MSTV Opposition to Petition for Review 9/9/08
(Does not include several attachments that are past MSTV filings that are said to comply with rules)
MSS Reply to Opposition 9/16/08

FCC Announces Workshop
on ex parte Reform

Faithful readers may recall that ex parte reform has been a recurring issue in this blog. (A B C D) No doubt as a response to this grass roots campaign, the Commission announced yesterday a workshop Wednesday on ex parte reform that will be simulcast over the web. I hope you watch it, or better yet, come and ask questions.

Washington, D.C. --The Federal Communications Commission will hold a staff workshop on October 28, 2009 to explore possible revisions to the Commission’s ex parte rules and processes to enhance the transparency of the Commission’s actions while at the same time maximizing the exchange of information between the public and the Commission.

This workshop follows an internal study of the current ex parte rules by Commission staff which identified a number of areas in which the current rules might be improved or updated. The workshop will also explore new issues posed by the increasing use of Internet-based media of communication and expression, such as blogs.

The workshop participants consist of practicing attorneys as well as representatives of companies, trade associations, and public interest groups, all of whom have substantial experience with the ex parte rules. The panelists will provide their perspectives on the successes and shortcomings of the current rules and suggest alternatives to better balance the goals of fairness, openness, and efficiency. A moderating panel of senior FCC staff will direct the panel discussions and pose questions.

Transparency at FCC: The NTIA Ex Parte Loophole

FCC is very proud of its transparency, the fact that it functions in a "goldfish bowl" where anyone can see what inputs it receives and how it justifies its decisions based on those inputs in its decision documents. Indeed, in dealing with foreign counterparts in "newly emerging democracies" FCC makes a big point of the benefits of transparency. The FCC (like all other US administraive agencies) has rules, codified in Subpart H of Part 1 of its Rules, called ex parte rules that require those contacting FCC about a pending rulemaking to document in writing who that talked with and what was discussed. These rules are generally complied with, although the level of detailed in such filings sometimes complies with neither the letter or spirit of the Rules. (Media Access Project has a good description of the ex parte rules that is a lot easier to understand than the official FCC explanation.)

However, there is an amusing loophole to this transparency that is not well known. Check out Section 1.1204(a)

a) Exempt ex parte presentations. The following types of
presentations are exempt from the prohibitions in restricted proceedings
(Sec. 1.1208), the disclosure requirements in permit-but-disclose
proceedings (Sec. 1.1206), and the prohibitions during the Sunshine
Agenda period prohibition (Sec. 1.1203):
...
(5) The presentation is to or from an agency or branch of the
Federal Government or its staff and involves a matter over which that
agency or branch and the Commission share jurisdiction provided that,
any new factual information obtained through such a presentation that is
relied on by the Commission in its decision-making process will, if not
otherwise submitted for the record, be disclosed by the Commission no
later than at the time of the release of the Commission's decision;

If you can get another federal agency that has overlapping jurisdiction with
FCC to make your point then you can avoid making your issue public and you
can influence FCC at the same time.  Why don't you want to make your
point public?  Because if those who disagree with your goal see what
your argument is they may be able to rebut it with facts.  As previously
discussed, the commissioners and their assistants have little technical
or even technical industry background sothey have trouble being selective
about technical viewpoints they receive.

OK, but is there an agency that meets the test of section 1.1204(a)(5) that
would be willing to do this?  Yes.  NTIA - the National Telecommunications
and Information Administration which controls federal government use
of the spectrum under delegation from the President's parallel authority
to the FCC.  If the proposed rule affects spectrum allocated to or shared
by the federal government then FCC can talk with NTIA off the public
record in all the "smoke filled rooms" it wants to.  The only requirement
is that these discussions must be mentioned in the final decision,
sometimes this is done by a public filing by NTIA
on the day the decision is adopted.

In order to use this loophole, you just contact NTIA with an
explanation, real or imagined,about how an FCC proposal
will adversely affect some federal government user.  Usually
NTIA will take the bait and contact FCC and pass on the concern
- often without independent review.

Is this real?  In 2002, Michael Gallagher, then Assistant
Secretary of Commerce and head of NTIA, a person who did
an outstanding job during his term at NTIA, appeared at
a public forum at FCC on spectrum issues.  I asked him
about this issue.  He candidly replied that he didn't see
it as a problem since if he is contacted by a private party
about an FCC rulemaking and its possible impact on government
users he "immediately contacts Julie Knapp" (Deputy Chief
of the Office of Engineering and Technology,FCC and
presently de facto acting chief of OET).  Thus Mike
Gallagher acknowledged that such outside pressure on
NTIA is immediately passed on to FCC without a word
on the public record.  Q.E.D.

"It is better to light a candle than to curse the darkness"
-- Eleanor Roosevelt

I have brought up this issue at meetings of the
Federal Communications Bar Association, the
lawyers that practice before the FCC, and received
no support from others who practice before FCC.
I suspect that some practicing lawyers view this
loophole as a little "trade secret".  FCC seems
uninterested since the practices meets the
letter of existing laws and regulations.  So I am
disclosing it here in the hope that if it becomes better
known and used frequently, this abuse of the spirit of
transparency will get more attention and will
be shut down.

An alternative?  I suggest that NTIA voluntarily
disclose to the public allinformation it receives
from private parties (other than government
contractors performing work that was contracted
for) that is intended to influence an FCC rulemaking
at the same time they pass
the information to FCC.

Your views?

T-Mobile's
Candor in
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.
It stated,

"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 approved
by the Commission."

On March 31, Howard Symons, counsel for T-Mobile filed a brief ex parte statement reporting telephone calls to various FCC officials and stating,

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.

Who Says FCC Web Site is Dull?

While FCC seems to have lost most interest in spectrum policy, it still has time for other parts of its "product line".

Here are some titillating quotes from a decision last week. (Trust me, I couldn't make this up.)

"9. The complaints refer to a scene at the beginning of the program, during which a woman and a boy, who appears to be about seven or eight years old, are involved in an incident that includes adult female nudity. As confirmed by a tape of the program provided by ABC, during the scene in question, a woman wearing a robe is shown entering a bathroom, closing the door, and then briefly looking at herself in a mirror hanging above a sink. The camera then shows her crossing the room, turning on the shower, and returning to the mirror. With her back to the camera, she removes her robe, thereby revealing the side of one of her breasts and a full view of her back. The camera shot includes a full view of her buttocks and her upper legs as she leans across the sink to hang up her robe. The camera then tracks her, in profile, as she walks from the mirror back toward the shower. Only a small portion of the side of one of her breasts is visible. Her pubic area is not visible, but her buttocks are visible from the side.

10. The scene shifts to a shot of a young boy lying in bed, kicking back his bed covers, getting up, and then walking toward the bathroom. The camera cuts back to the woman, who is now shown standing naked in front of the shower, her back to the camera. The frame consists initially of a full shot of her naked from the back, from the top of her head to her waist; the camera then pans down to a shot of her buttocks, lingers for a moment, and then pans up her back. The camera then shifts back to a shot of the boy opening the bathroom door. As he opens the door, the woman, who is now standing in front of the mirror with her back to the door, gasps, quickly turns to face the boy, and freezes momentarily. The camera initially focuses on the woman's face but then cuts to a shot taken from behind and through her legs, which serve to frame the boy's face as he looks at her with a somewhat startled expression. The camera then jumps to a front view of the woman's upper torso; a full view of her breasts is obscured, however, by a silhouette of the boy's head and ears. After the boy backs out of the bathroom and shuts the door, the camera shows the woman facing the door, with one arm and hand covering her breasts and the other hand covering her pubic area. The scene ends with the boy's voice, heard through the closed door, saying "sorry," and the woman while looking embarrassed, responds, "It's okay. No problem." The complainants contend that such material is indecent and request that the Commission impose sanctions against the licensees responsible for broadcasting this material.

11. Indecency Analysis. As an initial matter, we find that the programming at issue is within the scope of our indecency definition because it depicts sexual organs and excretory organs - specifically an adult woman's buttocks. Although ABC argues, without citing any authority, that the buttocks are not a sexual organ, we reject this argument, which runs counter to both case law and common sense.

12. We also find that the material is, in the context presented here, patently offensive as measured by contemporary community standards for the broadcast medium. Turning to the first principal factor in our contextual analysis, the scene contains explicit and graphic depictions of sexual organs. The scene depicts multiple, close-range views of an adult woman's naked buttocks. In this respect, this case is similar to other cases in which we have held depictions of nudity to be graphic and explicit."

If you want to see stills from the scene in question, surf over to
http://www.celebrityvideo.ru/screenshot/r/Ross_Charlotte_NYPD_Blue_640_480.jpg
courtesy, oddly, of a Russian website. (Make sure your virus checker is up to date before you surf over to such a website.)

Now I don't mind the 8th Floor spending time on the broadcast indecency "product line", that is part of the FCC's job. But it would be nice if they would remember that spectrum policy is also part of its jobs and spend some time on it also, rather than the minimum required by law.

Now a positive comment about the above quote: Note that they got the video from ABC. Until a few years ago there were indecency rules but the Commission played a "shell game" with respect to complaints. All complaints were dismissed on some technicality or other and the burden was on the filer to produce a video of the episode in question. This has now changed and the Commission is looking at indecency complaints on their merits.

However, the old "shell game" is now used in the ex parte complaint enforcement process where the OGC staff searches for technicalities to dismiss complaints -- without examining their merits. I note that OGC has never examined the issue of the 16 ex parte filings by a certain party that seem to violate the rules that was posted in my 10/13/06 OGC letter in this blog. 8th Floor readers might wish to ask OGC about their continued disinterest in the matter and why a certain trade organization is able to violate the ex parte rules multiple times with impunity.
========
UPDATE

If you can't get enough of this from FCC, here is the 2/19/08 Forfeiture Order for the NYPD Blue episode in question. Frankly, I don't understand the procedural issue of why there are two separate documents a few weeks apart. But I guess it shows 8th Floor interest in the matter. I just wish they were as interested in other parts of their jurisdiction also.

2nd UPDATE
From FCC website:

2/22/08
FCC Releases Forfeiture Order for 'Married by America' Episode.
Order: Word | Acrobat

In this case, FCC just squeezed under the 5 year deadline for deciding on a fine. The Washington Post commented,

"The FCC has a five-year statute of limitations on indecency enforcement; had the agency waited until after April 8 to rule, it could not have collected any fines.

...

It took nearly five years from broadcast to FCC decision, but less than a month for the FCC to turn down ABC's response and order a reduced payment of $1.24 million against 45 stations, again omitting markets that had not complained about the program".

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

FCC Begins Inquiry
into
Wireless Innovation
and
Investment

At today's Commission meeting a new NOI was adopted on this topic.

[See update below]

Comment Date: September 28, 2009
Reply Comment Date: October 12, 2009

The news release states

The Federal Communications Commission (FCC) announced a Wireless Innovation and Investment Notice of Inquiry(“NOI”) that seeks to identify concrete steps the Commission can take to support and encourage further innovation and investment in the wireless marketplace. This NOI also seeks to better understand the factors that encourage innovation and investment throughout this area.

Innovation in wireless, an increasingly significant part of the communications sector, can be an engine for near-term economic recoveryand long-term economic growth. In furtherance of this goal, the NOI seeks comment broadly on all ideas that will foster wireless innovation and investment. In particular, the NOI focuses on spectrum availabilityand use, wireless networks, devices, applications, and business practices. The NOI also seeks comment on how the public has used wireless services and technology to solve real-world problems in areas such as health care, energy, education, and public safety.

More generally, the NOI seeks to develop a framework for analyzing wireless innovation and investment, including any metrics or data sources that should be considered. This framework, together with the record developed in response to the Mobile Competition Report NOI adopted today, will serve as a base of knowledge to inform Commission consideration of wireless regulatory issues going forward.

Chmn. Genachowski added,

we seek to identify appropriate and concrete steps the Commission can take to support and encourage further innovation and investment in this area, and to understand better the factors that encourage innovation and investment in wireless.

UPDATE
Revised deadlines

Comments 9/30/09
Replies 10/15/09

ex parte rules now also apply.

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.

Larry Lessig (Wikipedia photo)

Lessig: Abolish FCC

Larry Lessig, professor of law at Stanford Law School and founder of its Center for Internet and Society, has written an article in Newsweek entitled "Reboot the FCC". It it he argues that FCC is beyond repair and should be replaced by a whole new agency for the benefit of our whole economy.

"If history is our guide, these new (IT) technologies are at risk, and with them, everything they make possible. With so much in its reach, the FCC has become the target of enormous campaigns for influence. Its commissioners are meant to be "expert" and "independent," but they've never really been expert, and are now openly embracing the political role they play. Commissioners issue press releases touting their own personal policies. And lobbyists spend years getting close to members of this junior varsity Congress. Think about the storm around former FCC Chairman Michael Powell's decision to relax media ownership rules, giving a green light to the concentration of newspapers and television stations into fewer and fewer hands. This is policy by committee, influenced by money and power, and with no one, not even the President, responsible for its failures."

He advocates a new "Innovation Environment Protection Agency (iEPA), charged with a simple founding mission: 'minimal intervention to maximize innovation.'"

While I agree with him that the current situation at FCC is impacting a lot more than the direct regulatees who appear at its doorstep in endless nontransparent ex parte meetings, I don't agree with his oversimplistic solution. If he thinks a single administrator agency is so much more efficient than a commission, he should take a look at the current EPA. Alternatively look at the Consumer Product Safety Commission (CPSC) and the Occupational Safety and Health Administration (OSHA - two agencies with somewhat parallel missions. (See Washington Post article, "Under Bush, OSHA Mired in Inaction") Bad leadership at both has doomed their effectiveness to protect the public.

I am preparing my remarks for the Silicon Flatirons "Reforming the FCC" conference next week and will discuss this more in those remarks that will be linked here as soon as they are made public.

Public Safety
and
700 MHz:

Waiting for FCC to Act

On April 7, Association of Public-Safety Communications Officials (APCO), CTIA—The Wireless Association® (CTIA), National Emergency Number Association (NENA), and National Public Safety Telecommunications Council (NPSTC) filed yet another ex parte urging FCC to take action in Docket 08-167 on the continued use of 700 MHz by wireless mics - most of which just happen to be illegal at present anyway.

"The undersigned associations, on behalf of public safety and commercial wireless 700 MHz band licensees, hereby reiterate their call for the Commission to act without delay to: (1) clear wireless microphones and other low power auxiliary station (“LPAS”) devices from the 700 MHz band; and (2) prohibit the manufacture and sale of 700 MHz wireless microphones and other LPAS devices for domestic use.

Absent prompt Commission action, interference and communications disruption in the 700 MHz band are inevitable – to first responders, to broadband customers, and to users of wireless microphones. Consistent with the FCC’s tentative conclusions in the 700 MHz Wireless Microphone Notice,1 the outcome of this proceeding is equally clear – wireless microphone and other LPAS devices must cease operations in the 700 MHz band, and further manufacture and sale of such devices for domestic use must be prohibited. Continued delay of a resolution in this matter, moreover, impedes the achievement of Congress’ objective to clear the 700 MHz band and make the spectrum available for new public safety and commercial systems. We are unaware of any public policy justification for further delay." (Emphasis added.)

Your blogger is not aware of any policy justification for not resolving this issue either. The ever aggressive Shure advocacy of their customers' continued use has not even replied to the combined public safety filing that is now 7 days old. In an article in Urgent Communications, formerly MRT: Mobile Radio Technology, APCO Director of Legal and Government Affairs Robert Gurss states, "Our concern is that the number of (700 MHz public safety) users is going to dramatically increase, and that's when you're going to have problems [with interference from wireless microphones]." The article adds,

"Following directions from Congress, the FCC largely has avoided taking action on matters that are not part of the DTV transition. But Gurss noted that the wireless-microphone issue does relate to the DTV transition, a significant part of which is to deliver usable spectrum to public-safety and commercial licensees.

Without FCC action establishing clear rules that wireless microphones cannot interfere with primary users, disruptions to public-safety and commercial wireless transmissions in the 700 MHz band are "inevitable," according to the joint letter from three public-safety organizations and CTIA, the trade association for commercial wireless carriers."

Google white space device prototype

Busy Week of White Space Action

It's been a busy week here in Washington, my home town. Down at the lab of our local communications commission there have been all sorts of visitors, like Magi at Xmas time, bearing gifts or promises of gifts. Fortunately, unlike the advocates of the status quo for large affluent TV broadcasters who skirt the Commission's ex parte rules with apparent impunity, these visitors believe in and act in the letter and spirit of transparency. Thus there is a paper trail where we can follow the action.

Actually, a little earlier on November 16 Motorola came by with the first recent present. Motorola described it as follows

"(It) uses geo-location database that is augmented by sensing algorithms to determine which TV White Space channels are available for use. The device also can be configured to perform testing of the DTV sensing algorithms but is not a normal operational mode of the device."

No pictures were included, but I saw the device at the Lab and it is rack mounted in an 18" high rack.

On December 4, Google dropped by.

(The) Google representatives demonstrated broadband spectrum sensing technologies that reliably detect DTV signals well below the noise floor. The broadband DTV sync signals gave reliable power level estimates, even when the pilot is deeply faded, removing the need for large margins. preliminary figures from the initial phase of the testing support an average sensitivity of -120 dBm.

The picture at the top of this post was included in their submission to FCC.

Then on December 5, Adaptrum, Inc , a client of mine, dropped by with its unit.

Dr. Haiyun Tang of Adaptrum and Steve Jones of FCC Laboratory with Adaptrum White Space Device (WSD) at delivery to FCC for testing,

Adaptrum said in its filing

The Adaptrum device is different from others that have been discussed on the public record in that it is not based frequency domain processing and threshold detection of DTV pilot tone power. Rather, it uses the whole 6 MHz of the DTV signal and contains a time domain matched filter. This greatly increased bandwidth permits greater sensitivity than pilot tone detectors.

Note that the Google and Adaptrum filings were made almost simultaneously and that both systems appear to use the same type of time domain processing.

Also on December 5, my former boss, Ed Thomas, met FCC downtown on behalf of both Microsoft and Philips. The filing says

During this meeting, Mr. Thomas made arrangements for Microsoft and Philips to submit devices to OET for the next round of white space prototype testing, and the parties discussed white space testing logistics, including potential dates for laboratory and field tests.

Are Microsoft and Philips now combining forces and working on a common device? The letter is ambiguous so we will see.

FCC staff reports that the "8th Floor" has now said that all submitted devices will be tested in parallel and publicly with observers from the interested public - please don't throw peanuts at the FCC staff. This apparently includes both bench tests and field tests. A problem appears to be how to find homes to test these in where an unlimited number of observers can wander in and out. Stay tuned.

Microsoft Cognitive Radio Prototype Arrives at FCC

A 3/14/07 ex parte filing by the coalition of Dell, Google, HP, Intel, Microsoft and Philips confirms that the long awaited Microsoft-funded prototype cognitive radio has arrive at the FCC Laboratory for testing as part of Docket 04-186.

The coalition claims that this radio will function in the listen-before-talk mode and detect both TV stations and wireless microphones at low enough sensitivities in order to avoid occupied channels for TV band Wi-Fi-like use.

The FCC proposals in this proceeding have been extremely controversial, pitting new economy companies, such as the coalition members, against old economy companies like the TV broadcasters and manufacturers of UHF FM wireless microphones. At stake is providing low cost broadband access in rural America where TV frequencies are especially useful for long range communications in sparsely populated areas. The broadcasters claim the future of "free TV" is at stake.

The docket has accumulated 860 documents to date and no end is in sight.

Wireless Microphones and
Docket 04-186: Two Different Viewpoints

On May 1st, the Sports Technology Alliance, a trade group consisting of the major professional sports leagues and ESPN, submitted an ex parte filing to FCC on why the FCC should reject the TV whitespace proposals of Docket 04-186 because of the threat of harm to the production of live sports events or the possible resulting requirement that using beacons to protect legal wireless microphone use "would result in significant additional expense to acquire new equipment merely to enable existing equipment to continue to function." Presumably the "existing equipment" they mention is the analog FM FDMA equipment that is being replaced now in almost every other radio service by more efficient equipment.

To bolster their technical points, this group has hired Harbour Group, a Washington DC PR firm to explain the advantages of the status quo. Harbour's website explains their approach to advocacy:

“We have helped clients sharpen their messaging and delivery to provide support to their allies and put pressure on opponents, shaping the policy environment... Managing the public policy issues that can affect an organization’s success starts with identifying and prioritizing challenges. We conduct thoughtful research, target key constituencies, build successful alliances and mobilize supporters. Our collective backgrounds provide a powerful combination of expertise and experience that allow us to help shape policy development and deliver results.”

Oddly, Harbour has never mentioned why these multibillion dollar clients need continued cost free access to spectrum on demand anywhere in the US even if it denies the use of the spectrum to others and why they cling to using dated FM FDMA technology when even your neighborhood taxi is transitioning to more efficient technology.

SpectrumTalk welcomes Harbour Group to the fray and looks forward to the "pressure" they promise. However, the wireless microphone community might do better hiring technical advisers to see what their technical options really are rather than clinging to technical and regulatory approaches of the past.

Marcus Spectrum Solutions LLC has filed with FCC today a response to the Sports Technology Alliance. Readers are encouraged to compare the two viewpoints and comment on them. While I nominally "moderate" comments on this blog to prevent spam, all comments received will be posted below except those that are clearly spam or contain words not fit for broadcasting. I suppose Harbour Group would not suggest that the other side be as open.

Spectrum Personnel Changes at FCC

Two items you may not have heard about. Alan Scrime, Chief Policy and Rules Division, Office of Engineering and Technology will leave FCC on 9/15 to take on a new job with the Army at Ft. Monmouth, NJ - much closer to his Northern New Jersey residence than 12th St., SW. He will be working on spectrum-related issues such as cognitive radios.

[Since this was posted an administrative hangup in the Army has delayed Al's departure and his staff is pleased he will be with them for a little longer.]

Al joined FCC in 2002 after a long career in the Bell System and then with a startup. He has been responsible for the preparation of most of OET agenda items and has been one of the nicest people I have worked with during my whole government career. He will be missed.

Angela Giancarlo will serve as Comm. McDowell's permanent (as opposed to interim) Legal Advisor for wireless and international issues. Ms. Giancarlo was most recently Acting Legal Advisor to Commissioner McDowell for wireless and international issues. Previously, she held the position of Associate Chief for Spectrum Policy in the Public Safety and Critical Infrastructure Division of the Wireless Telecommunications Bureau. Prior to joining the Commission, she worked in the Washington, DC office of Hogan & Hartson L.L.P., where her primary focus as Senior Associate was advising clients on commercial and private wireless regulation, auction-related transactional matters and strategic planning onspectrum allocations. Ms. Giancarlo has authored several articles on spectrum and technology matters, and is an active member of the Federal Communications Bar Association. She began her career in the congressional office of former U.S. Representative Jack Kemp (R-NY), where she served in a number of capacities over the course of four years. Ms. Giancarlo received a Bachelor of Arts degree in political science from Trinity College in Washington, DC and a Juris Doctor degree from the Columbus School of Law at Catholic University of America.

So the 8th Floor wireless advisors are now:
Fred Campbell , Bruce Gottlieb, Barry Ohlson, Aaron Goldberger, and Ms. Gaincarlo.

As a public service, here are their apparent e-mail addresses:

fred.campbell@fcc.gov,bruce.gottlieb@fcc.gov,barry.ohlson@fcc.gov,
aaron.goldberger@fcc.gov,angela.giancarlo@fcc.gov

Remember, e-mail messages on ex parte matters must also be filed separately with ECFS.