Slide 1

National Spectrum Managers Association

Why the FCC ImpedesNew Radio Technologies

– And What To Do About It

Mitchell Lazarus

May 21, 2008

703-812-0440 | lazarus@fhhlaw.com

Slide 2

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 3

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 4

Expanding Role of the FCC

When the FCC opened in 1935:1. AM radio2. telephones3. 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 5

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.

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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.

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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 8

Lazarus’s Law

PN ove lty

com p liance( ) 1

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 9

FCC Action on New Technologies

Three options:1. Rule interpretation: FCC determines that

device complies with existing rules2. 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 10

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 comments3. 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.

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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.

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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.”

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Rulemaking – A Slow Process

Months from Start

Activity

0FCC 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).

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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).

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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.

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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.

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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.

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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 spectrum3. 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.

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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.

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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.

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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 22

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 23

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 24

Thank you!

Mitchell Lazarus | 703-812-0440 | lazarus@fhhlaw.com