Transcript FCBA CLE 2007

National Spectrum Managers Association
Why the FCC Impedes
New Radio Technologies
– And What To Do About It
Mitchell Lazarus
May 21, 2008
703-812-0440 | [email protected]
Slide 0
Introduction
 Topic: FCC technical rules delay new radio technologies
 Barrier: radio products must conform to FCC rules
 New technologies may need new rules
 Some causes for delay:
 accelerating technical innovation
 insufficient delegation to OET/bureau engineers
• technical decisions made by lawyers
 cumbersome decision-making procedures
• imposed by Congress and courts
 unnecessary/overstated opposition.
Slide 1
Regulatory Scheme
 FCC adopts technical rules
 authorized by Congress in 1968 to adopt regulations
“governing the interference potential” of radio devices
• may limit average power, peak power, bandwidth,
out-of-band emissions, duty cycle, modulation, more
 Devices must show compliance prior to marketing,
 devices that do not comply may not be marketed
• unless FCC waives rules
 Technical rules act as a valve – passing some devices,
blocking others.
Slide 2
Expanding Role of the FCC
 When the FCC opened in 1935:
1. AM radio
2. telephones
3. ship radio
 FCC today:
AM/FM/TV/DTV, cable TV, wired telephone, wireless telephone
(cell, PCS, SMR), VoIP, international (cable & radio), private
land mobile radio, paging, air-ground, public safety,
aeronautical, maritime, satellite (geo & non-geo; fixed &
mobile), ISM, digital devices, unlicensed transmitters (Wi-Fi,
Bluetooth, many more), BPL, fixed microwave, shortwave,
software-defined radios, radio astronomy, RF safety, wired
broadband (DSL, cable, etc.), wireless broadband (BRS, EBS,
WCS, LMDS, 24 GHz, etc.), amateur, R/C, CB, GMRS, Family
Radio, telemetry, surgically implanted transmitters, etc., etc.
Slide 3
Changing Role of Technical Regulation
 1935-1985:
 new radio technologies appeared slowly
 FCC set detailed technical parameters for each
• usually took 6 months or less
• did not delay deployment
 1985-now:
 older technologies lightly regulated
 new technologies – still have detailed rules
 need to update rules delays availability
• court decisions in 1970s- 80s slowed rule changes.
Slide 4
Life Cycle of Technical Rules
1. New technology introduced – needs new rules
 rules invariably opposed
 impact hard to predict; FCC proceeds cautiously
 initial rules are detailed and specific
2. Products improve; new versions do not comply
 FCC grants multiple waivers and interpretations
 FCC adds more options to rules
 rules become highly intricate
3. Improvements continue; manufacturers seek further
rule changes
 FCC greatly simplifies the rules.
Slide 5
Life Cycle – Example (Spread Spectrum)
 1985: spread spectrum rules adopted
 two types: direct sequence; frequency hopping
 very specific rules
 1990-2000: added complexity
 processing gain requirement, CW jamming margin test,
wideband frequency hopping, etc.
 2002: “digital modulation” rules adopted
 regulate power, power spectral density
 any digital modulation allowed
 rules greatly simplified.
Slide 6
Lazarus’s Law
1
P( compliance ) 
Novelty
 The more novel an innovation, the less likely it is to
comply with FCC rules.
 Corollary: innovative technologies require FCC action
before they can reach the market.
Slide 7
FCC Action on New Technologies
 Three options:
1. Rule interpretation: FCC determines that device
complies with existing rules
2. Waiver: FCC allows marketing despite non-compliance
 usually on a showing that interference is no worse than
from a compliant device
 may be subject to conditions
3. Rulemaking: FCC amends rules to accommodate new
technology.
Slide 8
Rulemaking Procedures – 1
 Administrative Procedure Act (APA)
 1946 (era of manual typewriters, carbon paper)
 since made more cumbersome by the courts
 Rulemaking requirements:
1. published Notice of Proposed Rule Making (NPRM)
2. opportunity for public to submit comments
3. FCC decision adopting rule:
• explains the basis and reason for the rule
• shows consistency with the record
• responds to major points in the comments
 FCC must use same procedures for minor technical
tweaks as for major policy shifts.
Slide 9
Rulemaking Procedures – 2
 FCC allows “ex parte” presentations to staff
 can be face-to-face or written submissions
 presenter must disclose contents in the public docket
 Web-based filings and access are a mixed blessing:
 allow broad participation at low cost
 but clutter the record with uninformed views
 even a small proceeding can run thousands of pages
 NPRMs, orders tend to be long and complex
 from APA requirements applied to big record
 documents take a long time to write and review.
Slide 10
Ex Parte Process
 Parties feel they must show up to be taken seriously
 At meetings, FCC may attempt to negotiate:
 assess which issues matter most to each party
 press parties to limit demands
 develop possible compromises
 invite parties to modify and refine positions
 Process leads to better rules – but adds months of delay
 APA puts limit on ex parte negotiations
 eventual rule must match proposal in NPRM or be a
“logical outgrowth”
 court will strike down “surprise switcheroo.”
Slide 11
Rulemaking – A Slow Process
Months
from Start
Activity
0
FCC releases Notice of Inquiry OR issues public notice
of a party’s Petition for Rulemaking
2-3
FCC receives comments and replies on NOI or PFR
12-15
FCC releases NPRM
14-18
FCC receives comments and replies on NPRM
(throughout)
Ex parte meetings and filings
24-36
FCC releases Report and Order
36-60
FCC releases order on reconsideration (if any).
Slide 12
Rulemaking – Causes of Delay
 FCC must review and respond to all major comments
 Lengthy ex parte process (both OET/bureau and 8th floor)
 parties feel need to revisit staff regularly
 Multiple document reviews:
 bureau staff; bureau front office and legal counsel
 Office of General Counsel
 NTIA/IRAC (if federal spectrum involved)
 Commissioners’ staffs and Commissioners
 Among the concerns:
 rules meet industry needs
 minimize unintended consequences
 compliance with APA (to avoid reversal by courts).
Slide 13
Rulemaking – The Cost of Haste
 Broadband-over-Power-Line (BPL) rulemaking:
 4/28/03: Notice of Inquiry
 2/23/04: Notice of Proposed Rulemaking
 10/28/04: Report & Order
• rules adopted 19 months from NOI (!)
 8/07/06: Order on Reconsideration
• minor adjustments to Report & Order
 10/10/06: opponent appealed to D.C. Circuit
 4/25/08: court ordered FCC to re-justify two elements
of 2004 Report & Order
• rules remain in effect during remand.
Slide 14
Waivers
 Non-routine waivers are subject to rulemaking-type
procedures:
 FCC issues public notice; opens a docket; invites
comments and replies; permits ex parte presentations
• only one round of comments and replies
 rationale: parties potentially affected by the waiver
should have a chance to speak out
 Waivers of technical rules typically take 1-2 years
 Opposition adds delay –
 even if opposition is not well founded
 even if proponent resolves opposition.
Slide 15
Rule Interpretation
 Non-public proceeding
 no opportunity for other spectrum users to object
 FCC proceeds very cautiously
 may be granted where device satisfies purpose of rule,
but misses exact language
 When in doubt, FCC treats as a waiver request
 puts on public notice, invites comment
 But IEEE 802.11b was approved as a rule interpretation
 raised spread spectrum from 2 Mbps to 11 Mbps
 first popular form of Wi-Fi.
Slide 16
Opponents of New Technologies
 Three categories:
1. spectrum users actually threatened with interference
2. spectrum users not affected – but oppose anyway
• some reflexively protect their spectrum
3. competitors – esp. those threatened by the innovation
• but usually oppose on interference grounds
 In ideal world, FCC could disregard all but first category
 in real world, FCC must respond in detail to all
 Both opponents and proponents overstate their concerns
 costs credibility; damages parties’ own interests.
Slide 17
Suggestions – In General
 Delegate technical waivers to OET/bureaus
 would speed procedures by months
 (rulemakings must come from full Commission)
 Disregard frivolous opposition
 in a large proceeding, FCC ignores unfounded views
 should do the same in a small proceeding
 Fast-track rulemakings and waivers that do not realistically
threaten interference
 On receipt of a hard-to-grant request, FCC could invite
petitioner to withdraw and resubmit with changes
 advise on minimizing impact on other users.
Slide 18
Suggestions –Start of Proceeding
 In non-controversial rulemakings, go directly to NPRM
 bypass public notice and comment on petition for
rulemaking (saves about one year)
• FWCC requested this treatment on 11/07/07
 NPRM could be short FCC document with petition for
rulemaking attached
 Draft NPRM broadly to allow for negotiated resolution
 Routinely grant waivers pending rulemaking
 if rulemaking is credibly opposed, can limit waiver
 e.g., waiver may permit less power than requested rule,
may limit quantities deployed.
Slide 19
Suggestions – Ex Parte Stage
 Limit time period for ex parte presentations
 announce cut-off in NPRM, or give 30 days’ warning
 after cut-off, allow one week for replies – no new issues
 Require that ex parte notices be sent to opposing parties
 Discourage repetitive ex parte presentations
 favor written submissions over in-person meetings
 Bring in opposing parties to meet at FCC
 can debate issues; FCC can mediate discussions
 Release brief supplemental NPRM on tentative decisions
 short time frame for comments
 refuse to consider new issues.
Slide 20
Recommendations for Applicants
 Minimize the opposition
 avoid sensitive bands: GPS, search & rescue, radio
astronomy, aero, satellite downlink, auctioned, amateur
 keep power levels as low as possible
 know the incumbents’ sensitivities (e.g., peak power)
 Make the FCC’s job easy
 minimize number of rules to be amended/waived
• requires care in characterizing the proposal
 show risk of harmful interference does not increase
• if possible, obtain incumbents’ consent
 show substantial benefits to the public interest
 accumulate extensive written support.
Slide 21
Conclusion
 Regulatory delays add costs and risk to innovation
 deters investment
 Unwise to have Congress amend APA
 big policy issues do need traditional APA treatment
 short-cut procedures would inevitably be misused
 But FCC can streamline procedures, still comply with APA
 Would foster innovation and benefit industry
 reduce risks, accelerate start of revenue, give products
more time on the market.
Slide 22
Thank you!
Mitchell Lazarus | 703-812-0440 | [email protected]
Slide 23