“Winning the Race to 5G” has become the new mantra of U.S. wireless policy. While I’m not exactly sure how “winning the race” to deploy the fifth generation of wireless technology should be any less of a policy priority than was winning our race to deploy the previous four iterations —or will be any different from our efforts to deploy the sixth iteration—of wireless technology (or against whom we are even racing for that matter), it seems of late that many folks believe sprinkling a little “Race to 5G” pixie dust in their advocacy is enough to circumvent any legal, economic or engineering problems standing in the way.
Take, for example, the on-going case of spectrum speculator Ligado Networks (formerly LightSquared), who holds licenses to 40 MHz of spectrum in the Mobile-Satellite Service (MSS) spectrum band. Since 2010, Ligado has sought permission from the Federal Communications Commission to convert this spectrum to terrestrial wireless services. While terrestrial operations are permitted in the band, the FCC’s Ancillary Terrestrial Component (“ATC”) rules require that Ligado first demonstrate that its ground-based network is both ancillary to its satellite offerings (which are negligible) and that its transmissions do not interfere with existing satellite signals in the band. Failing on the latter, permission was denied.
Subsequently, Ligado has allayed interference concerns through payments to a few affected parties and some network changes. Ligado, for example, has compensated Inmarsat for years for the impact of its proposed operations on Inmarsat’s business. And recently, in response to an extensive technical report from the Department of Transportation, Ligado once again modified their technical plans to reduce interference problems.
While Ligado deserves credit for responding to some interference concerns, its problem is that the FCC’s ATC rules do not require the company to reach agreements with some existing users: the FCC’s rules require that Ligado resolve all harmful interference concerns and, contrary to what Ligado might like the public to believe, there remain a number of significant residual disputes—including complaints from the aeronautical GPS community, some government GPS users, the National Oceanic and Atmospheric Administration (NOAA), and Iridium Communications, the only mobile voice and data satellite communications network that spans the entire globe. As such, Ligado’s petition remains in limbo. While some of Ligado’s advocates seek to shift blame to the government, as noted in a FedSoc blog post by Phoenix Center Chief Economist Dr. George Ford last summer, “The success or failure of Ligado’s odyssey is in Ligado’s hands, not at the government’s feet.”
Ligado is, if anything, persistent. It has repeatedly tried to reinvent itself and to seek out new angles for approval. Most recently, Ligado filed a request with the Commission claiming its proposed ATC service constitutes a “new” technology or service under Section 7 of the Communications Act. This is certainly a novel argument for Ligado—a last-ditch effort to save a company near financial ruin. According to Section 7, the Commission must “determine whether any new technology or service proposed in a petition or application is in the public interest within one year after such petition or application is filed.” In Ligado’s view, as its ATC request has been languishing for “over 1200 days”, the Commission must immediately allow Ligado to commence service.
In support of its petition, Ligado plays the “Winning the Race to 5G” card aggressively. Among other hyperbole, Ligado’s pleading is full of grand statements like “5G is the most important new technology the Commission will advance in a generation” and points to a simplistic economic multiplier study that promises the ultimate political catnip: more jobs. The problem for Ligado, however, is that its promise of 5G unicorns and rainbows does not address (at minimum) three fundamental legal problems.
First, given that the concept of an ATC for satellite services has been on the books for nearly two decades, it takes a lot of chutzpa for Ligado to argue that its proposed service is “new.” As I documented in a FedSoc blog last December, the FCC has granted several ATC petitions over the years (although not one has ever produced a successful service) and thus, by definition, it is hard to see how Ligado’s ATC petition satisfies the Commission’s proposed Section 7 test that its service “has not previously been authorized by the Commission….”
Second, if we take Ligado’s argument to its logical conclusion, so long as a service is “new,” then interference concerns—and by extension the Commission’s extensive regulatory regime to guard against such interference concerns—can be swept under the proverbial rug. Not only does such an argument make no legal sense, it is bad policy to boot. Although many gladly ignore both the presence of interference externalities and Ligado’s failure to comply with the FCC’s extensive regulatory regime in the name of “Winning the Race to 5G” (see, e.g., here and here), disregarding interference to incumbent users would have a detrimental effect on future investment in all spectrum bands.
Likewise, accepting Ligado’s argument that a “5G” service satisfies Section 7 would set a ridiculous precedent. Were that a sufficient justification, then every telecom company in the U.S. would slap a “5G” on their assorted petitions and demand expedited treatment from the FCC under Section 7—an absurd outcome that would completely undermine the meaning of the statute.
Ligado is sitting on precious mid-band spectrum resources which, in a perfect world, could be used to aid the spectrum-starved terrestrial wireless industry. But as former NTIA Administrator David Redl famously observed, “the era of easy spectrum decisions is over.” This is a hard business with billions of dollars of stake and, therefore, complex problems must be approached with rigor and seriousness. Advocacy that panders to politicians with promises of “Winning the Race to 5G”—whatever that means—trivializes this task.
Conscientious spectrum policy should not be reduced to the slogan “first or last” from Talladega Nights. If we want to ensure that Americans get the latest and greatest 5G technology, then less hyperbole and more respect for the law, economics and engineering is required.
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Lawrence J. Spiwak is the President of the Phoenix Center for Advanced Legal & Economic Public Policy Studies (www.phoenix-center.org), a non-profit 501(c)(3) research organization that studies broad public-policy issues related to governance, social and economic conditions, with a particular emphasis on the law and economics of the digital age.