It Takes Two to Make a Proceeding Go Slow
In the United States, two separate agencies manage radio operations: the NTIA and the Federal Communications Commission (FCC). The NTIA serves as the principal authority within the executive branch on telecommunications and information policy. As a part of this role, the agency manages all federal radio operations through the Interdepartment Radio Advisory Committee (IRAC), which originally began prior to the formation of the FCC as a means for federal operators to coordinate radio operations and prevent harmful interference.
The FCC operates independently of the executive branch, and regulates radio operations from all other users. As a part of its statutory mandate, the FCC has the authority to issue, allocate and assign radio operating rights to different users as the public interest requires. As a result, the FCC and the NTIA often approach problems differently, with the NTIA more focused on ensuring federal operations continue unencumbered by civilian broadcasts, and with the FCC focused on ways to maximize the efficiency of radio operations.
When it works, it works well. The executive branch can dictate policy for federal users, to ensure that important, mission-critical applications have the necessary bandwidth to operate without harmful interference. At the same time, the independence of the FCC allows the agency to make informed decisions about what would constitute the public interest, with no internal benefit from any decision they make. Obviously, conflicts between the two arise. But when this does occur, the NTIA and the FCC work together to find optimal outcomes. In fact, the FCC has a role within IRAC, to participate in these meetings and to collaborate with federal agencies to produce the best possible outcomes.
However, things don’t always work that well.
The legal right to operate at a given time, location and frequency is very valuable, as these rights are limited. No entity wants to give up their rights. And unfortunately, radio operations can be difficult to predict. For example, Sirius XM and T-Mobile both had legal rights to operate in New York, but Sirius receivers began to experience harmful interference due to intermodulation effects. Both parties were operating within the rules prescribed by the FCC, and neither side felt they were responsible for resolving the problem. This type of scenario shows why incumbents fight tooth and nail against new entrants: You can never be sure your service won’t be affected by neighboring operations.
Fortunately, the FCC has authority over both licensees, and could therefore resolve the issue. However, when the decision rights are less clear, problems occur.
Therein-lies the problem underlying the 3.1-3.55 GHz band. The NTIA and the DoD have no real incentive to quickly commercialize this spectrum, as the federal operations currently face little risk of harmful interference. If the FCC reallocates a portion of the band for commercial use, federal users will either need to relocate or develop some sharing mechanisms, inherently increasing the risk of harmful interference. Despite a congressional mandate to explore licensed operations in the band, conflicting incentives and delays only serve to further delay the deployment of commercial services.
These tensions seem to be increasing. In the 24 GHz band, for example, National Oceanic and Atmospheric Administration (NOAA) and National Aeronautics and Space Administration (NASA) sought to delay an auction despite plenty of time for engagement throughout the FCC’s process because it feared licensed operations would disrupt weather sensors in the band. Likewise—and perhaps most notoriously—Ligado has finally received approval on a license modification after years of private negotiations, bankruptcy and delays. Even after resolving the private negotiations with the GPS industry, final approval was delayed by politicking from the DoD. Now, even after the decision was made by the FCC, the fight continues on the Hill and in the White House, leaving the company in limbo. Unfortunately, these issues will only continue to expand as more operators—both federal and non-federal—continue to seek legal operating rights.
This leaves an interesting challenge: How can regulators clarify the decision rights in a way that better resolves these types of disputes?
Currently, the Commerce Spectrum Management Advisory Committee (CSMAC) is exploring that exact question. There are a few potential solutions they have identified thus far: creating a new agency in charge of all spectrum management, shifting authority for spectrum management to either the NTIA or the FCC, or simply improving coordination between the two agencies. Ideally, if Congress does want to shift authority from one agency to another, spectrum management authority should be vested in an independent agency like the FCC or a new agency outside the executive branch, as this removes the self-interest of federal users from having a direct outcome on allocation and assignment of operating rights. But regardless of what CSMAC ultimately finds or recommends in August, it is time for Congress to consider reforming spectrum management in the United States.
Ultimately, many of these problems will still be a challenge. Incumbents will fight to maintain their legal rights and fight against anyone who may seek to encroach on them. But, the United States cannot afford increased delays and political games whenever new spectrum allocations are made. Reforming this bifurcated process to streamline decision-making will lead to timely, efficient proceedings by spectrum management authorities.
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