Spectrum Policy in the 5G Era

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome, everyone, to this Federalist Society virtual event as this afternoon, March 22, 2022, we’re hearing about "Spectrum Policy in the 5G Era." We have a terrific panel lined up today. I’m just going to briefly introduce our moderator before she takes it away. Quickly some housekeeping -- I’m Nick Marr, Assistant Director of Practice Groups at The Federalist Society. Please note that expressions of opinion on today’s call are those of our experts.

 

      We’re joined today to moderate this great discussion by Danielle Thumann. She’s a legal advisor to Commissioner Brendan Carr at the FCC, and she helped put this webinar together. Webinar’s sponsored by the Telecommunications and Electronic Media Practice Group of The Federalist Society. Towards the end of the call, we’ll be looking to you, our audience, for questions. So please submit those through the chat as we go along, and we’ll get to as many as we have time for at the end. With that, thank you very much all for being here. Danielle, thank you especially. I’ll give the floor to you.

 

Danielle Thumann:  Great. Thank you so much, Nick. And thank you to The Federalist Society for allowing us to have this webinar today. And special thanks to our panelists for joining for the discussion. I will start with some brief introductions of our three panelists. First, we have Adam Candeub, who is Professor of Law and Director of the Intellectual Property Information and Communications Law Program for Michigan State University. Next, we have Harold Feld, who is the Senior Vice President for Public Knowledge. Third, we have Patricia Paoletta, who is a partner with the law firm of Harris, Wiltshire, and Grannis. Today we are going to be focused on spectrum policy in a 5G era and the increased involvement by other agencies in some of the FCC’s spectrum proceedings. Because there are a lot of issues at play here, and we often have some non-telecom folks that join in the audience, I thought it would be helpful to set the stage a bit and provide some history and some background before turning things over to the panelists for a deeper dive.

 

      So while the Commerce Department initially actually had authority to assign commercial spectrum licenses, that duty was then assigned to the Federal Radio Commission all the way back in 1927 and then later to the FCC through the Communications Act of 1934. And NTIA, by contrast, has retained the authority to administer and manage spectrum for federal use. Through the Communications Act, the FCC has the authority today to issue licenses for spectrum, to regulate interference, to determine the types of services that a licensee can render, the power levels that they can use for equipment, and more. The FCC has also been given spectrum auction authority from Congress. And a really important piece of the FCC’s decision-making process is ensuring that spectrum does not lay fallow and is put to its best and highest use. But the FCC does not do any of this in a vacuum. It’s required to consult with NTIA before initiating a proceeding to look at any particular spectrum bands. The FCC then engages in its rulemaking proceeding process and follows APA guidance for that rulemaking before any decision is ultimately reached for any particular spectrum band. These proceedings take time. They heavily involve industry and other stakeholders and also involve detailed engineering analysis.

 

In recent years, however, other agencies. including the Department of Transportation, the Department of Defense, NOA, just to name a few, have become more engaged with the FCC’s proceedings as the demand for spectrum continues to increase and the need and importance of sharing has continued to rise. As broadband connectivity has continued to become more ubiquitous to all sectors of the economy, different industries have become a little bit more laser-focused on their own connectivity needs and protecting their spectrum turf a little bit, if you will. But there have been some instances from my perspective where the other agencies have kind of circumvented the process that was set up by Congress, and as a result, we’ve had a lot of conflicts of interest, some delays, and some other challenges.

 

So what we’re going to explore today is the potential long-term impact of these battles, where changes to the process may be warranted, and from my perspective, it’s very important that the FCC’s authority here and expertise be kind of reinforced as part of any future spectrum strategy. So with that, let me first turn things over to Tricia to kick us off by building a little bit on the history and background. And if you’d like to provide your perspective as well, that would be really helpful -- of some of the recent trends.

 

Tricia Paoletta:  I was muted. Sorry. Thank you, Danielle. And I should start today by saying, any perspective I do offer is my own perspective and doesn’t reflect on Harris, Wiltshire, and Grannis’s clients because we’ve got lots of them with different interests and different bands, so this is all me. Yeah. As you said, we have a long and storied history on spectrum management. And it is -- you made me think too, Danielle, while you were speaking, like, wow, in 12 short years, we can start celebrating the 100th anniversary of the 1934 act. So something to look forward to, but -- yeah. As you said, there is increasing competition for spectrum because of broadband’s importance in our lives. So I think some of the recent battles we’ve seen have been, as you suggested, a factor of that. Right? Everybody wants to hold on to their spectrum because they think they’re going to have future needs.

 

But, in terms of the international impact of what we’ve been doing, I think we -- I mean, some of these battles have probably been negative for our position relative to the United States because we don’t seem to be keeping the squabbles in the house and -- but on the flip side, some of our spectrum management practices, I think, have really led the world in more efficient ways to allocate spectrum. Like, we were the first to do spectrum auctions, and that’s also coming up on an anniversary, I guess. In the 1993 Omnibus Budget Reconciliation Act, Congress first gave the FCC authority to have spectrum options, and the initial term was just five years. Of course, like everything Congress does, that came about after a lot of thought leadership at the FCC and in industry, and the FCC had a whole office that was looking at spectrum auctions. I think Evan Kwerel was given an award last year by Chairwoman Rosenworcel for his leadership on there, but obviously, it was a big team. And in that regard, US has definitely been a leader in spectrum management, and other countries followed suit because it is the most efficient way to allocate spectrum that is mutually exclusive.

 

So we’ve had some shining moments of spectrum leadership internationally. But we’ve also been first in trying to do more innovative ways to manage spectrum and in sharing, and maybe Harold or Adam want to get into that. But because we’ve had a more crowded landscape in spectrum, because of our role, really, as a global peacekeeper during the Pax Americana years, we’ve had more intense use of spectrum by defense, certainly more intensive use of -- by some of the science agencies and other places.

 

So we’ve had to be more innovative in spectrum use. But again, because of this crowded landscape, we get into more squabbles. And I think we’ll get into the discussion, I’m sure, later on. We seem to be -- having reached the consensus across the board between different houses of Congress and different agencies, that we have to do a better job. And there is a new spectrum coordination agreement, as you know, between the FCC and NTIA. So I think industry is certainly happy about that, but that’s enough introductory, I suppose. And I’ll turn it back to you, Danielle.

 

Danielle Thumann:  Great. Let’s turn next to Adam. If you’d like to add your perspective or, from your prior role with NTIA, talk a little bit more about the Department of Commerce’s involvement in the process and how NTIA has typically considered different agencies’ concerns when the FCC is evaluating making certain spectrum available for commercial needs.

 

Adam Candeub:  Sure. So first of all, I want to just sort of build on Tricia’s, I think, very perceptive comments about the tremendous achievement of the FCC and the NTIA and this tremendous amount of spectrum repurposing. I mean, since 1990 -- early ‘90s, under Reed Hundt, the first auctions -- and it really has been revolutionary when you think about what has been achieved. And it’s not just, “Oh, neat, I have these great smartphones that do neat things.” It really is a huge amount of repurposing of federal spectrum. One of the first things you learn when you get to NTIA is the largest user of spectrum in the world is the United States government. And that has -- I think the US government deserves a pat on the shoulder for tremendous flexibility and being able to do a huge amount of repurposing and moving around the spectrum map. And that’s unusual. In many countries, governments tend to be far more, how should we say, myopic in their interests. And are not as willing to play this sort of game that’s so necessary in order to allow for rollouts.

 

Second point -- I mean, one of the things that really impressed me in NTIA -- and I think it’s sort of a culture of decision making -- and I’m usually hesitant to use such terms because they’re so vague and amorphous, but I have something specific in mind -- is that you have these huge decisions with billions of dollars at stake and the whole constellation of these powerful DC forces pressuring this point and that, and then you sit with the engineers. And of course, sometimes they are also caught up in this, but unlike lawyers, they have, into their bone, into their training, notions of efficiency and logic that, I think, in many ways sort of constrains their politicization and sort of allows them to say, “Look, what’s the -- here’s the problem, what’s the best efficient outcome?” in a way that I think lawyers don’t do. And we’re all lawyers here, I think, I believe.  And not to besmirch our kind, but we have different agendas and different ways of doing things. So I’m not often a great fan of the technical abilities of government to get things done, but this is in this discreet area where you’re dealing with electrical engineers where they are trained and acculturated into certain types of thinking. There is a real place, I think, for the sort of technocratic decision-making.

 

Okay. And now, I guess, what everyone wants me to talk about, which is, of course, 5G and some recent controversy about this. I think I’ll just start by saying what this point -- this whole situation points out, is the need to avoid what happened. We have to have all concerns done in a timely manner, and that requires cooperation of all agencies to come in with their concerns— and not just their concerns, the hand-waving because all of the agencies do hand-waving. They all present stories of very – “Dire things will happen unless we get our spectrum,” but with evidence. And I think that all these problems could have been avoided had agencies come forth with serious evidence at the very beginning, rather than a hand-waving gesture because that’s a real problem. If we can’t trust the process, then we’ll never repurpose spectrum again because people will always come in at the last minute and say, “Oh, we have to do this.” And then who’s going to buy it? Because you don’t have, as Ron Coase would say, a secure property interest. And that’s what I think we’re all trying to work for. So I think I probably said enough. I hope I didn’t say anything bad, but thank you.

 

Danielle Thumann:  Harold, let’s go to you next. I really enjoyed the spectrum wars piece that you put out last week. You raised a lot of really interesting points. One being the fact that the latest spectrum wars popped up where agencies were fighting the FCC for spectrum that had already been assigned for commercial use and therefore were exclusively under the FCC’s jurisdiction. In light of this, do you think that there’s been some kind of process failure here, or are there process changes necessary at this point in time?

 

Harold Feld:  Well, yeah. And I think one of the things that I just want to make sure people understand because I know this is not like a Federal Communications Bar Association event where everybody comes in already kind of knowing what the state of the world is, but just part of the problem is that spectrum policy is very complicated because what you do, impacts not just the set of frequencies that you’re talking about but potentially has impacts in other frequencies. And in addition to that, when we talk about, “So what can you do with the spectrum?” Well, it’s always going to be, “That depends.” There are going to be some uses that take up a lot of space, if you will, and are, in some ways, kind of primitive like military radar, but we’re always going to need military radar. By contrast, there are a lot of places where we could increase efficiency of government use, or we have different tools for increasing the efficiency of the commercial use or different types of commercial use, where again, the idea that Congress has enshrined in the statute in recognizing all of this -- and said, “Okay, we’re going to have an agency that does not itself use spectrum, so it doesn’t have any interests. The FCC doesn’t have any need for spectrum. It doesn’t give itself anything. So it can be neutral in the rules and allocations. And we’re going to have this one other agency that Congress ultimately created, NTIA, which is going to be the center spoke for federal users.”

 

And the problem here is, both NTIA and the FCC are designed to be able to step back and look at the big spectrum picture. How do we make these balancing questions? How do we deal with public safety in the state or local level versus what the FBI is using or the secret service is using? These are just enormously complicated questions. And what we have discovered now is that there’s a lot of agency use where, it’s not just that they don’t trust the FCC, they also don’t trust the NTIA, and where, frankly, I think that there is also a lot of problems with not having a shared set of language and assumptions and sets of responsibilities with regard to spectrum.

 

This came up during the hearing, the FAA C-band fight where everyone was like, “Woah, our engineers and their engineers just had no idea what each one was talking about.” And part of this was, frankly, that the FAA kept saying, “Well, you can’t do this until we’ve decided that it’s safe.” And the FCC said, “Okay, first of all, this is not your spectrum, and second of all, we have decided that the spectrum use is safe. So these are now the ground rules. You go off, and if you need to fix some stuff to work within these ground rules, we have a working group. We’ll work it out.” And the FAA was like, “No, you can’t do this until we decide that it’s safe.” And that’s not how the process can work.

 

Similarly, NTIA has a sort of odd role because it’s not supposed to be just a dumb pipe. There was a lot of talk about a letter that the DOT wanted to send through NTIA. And it’s true, NTIA is supposed to be the interface between the Executive Branch and the FCC, but part of that is the NTIA is not a dumb pipe that’s just -- and it’s not a lawyer or advocate for individual agencies. It’s an independent -- in the sense of from other spectrum using agencies, not in the same way that the FCC is independent. But it’s an agency that actually has its own labs, has its own engineers, does its own research, and can say, “Okay, it’s true FAA,”—or DOE, in the case of another proceeding, or DOD in the case of different proceedings—“you have a lot of valid points about your concerns. But we’ve got some world-class facilities that are not the FCC’s facilities, that are the federal government—all of us here on the same side. And we think that this is what ought to happen.” Agencies don’t tend to like that. So the question of what processes need to be improved here -- and we’re at a very interesting inflection point because we’ve distributed most of the 5G spectrum. We got one auction left in 2.5. There’s some things that -- but mostly we’re now trying to get lessons learned from here for 6G, which everybody is now kind of looking to as five or so years from now going to have its own demand for spectrum. That’s the cycle.

 

So how do we have a process where, number one, Congress needs to invest money? Congress needs to invest money in FCC engineers and lab testing capacity. Congress needs to invest more money in NTIA’s engineers and lab testing capacity. People have to be up to date on the latest technology. And also, these decision-makers need to be able to go to the aerospace industry or the standard-setting bodies for utilities doing their communication or whatever it is and be able to follow those and incorporate that into their thinking. We also need Congress to, frankly, invest money in more efficient spectrum technology for agencies. There’s an auction fund that does this after the fact for each time we say, “Okay, well, we’re going to reallocate this band, so we will have a -- the auction will take an estimate of the federal cost, and we’ll use that to move or reimburse.” But we could do a lot more if we just sat down and say, “Okay, let’s reinvest in more efficient technology so that folks like Secret Service don’t have to be afraid of what’s going to happen because they’ll have super-efficient modern walkie talkies and not something out of the 1960s.”

 

So there’s a lot here that can be done in a kind of lessons-learned way, and the biggest one is, we have to rebuild trust. I mean, we don’t like to think about the importance of individuals, but Juli Knapp, who was the head of the Office of Engineering and Technology at the FCC for years and years and years before he retired, was a national institution. And he just had developed all these relationships with all of the engineers and these other federal agencies and could bring folks together in a way that nobody else has replicated, and we do need to spend time rebuilding those relationships.

 

Tricia Paoletta:  Can I jump in to add on to Harold’s points? I mean, of course, I agree with them. But part of it was Covid, right? Some of those trust relationships just have laid neglected, and as you said, Juli retired. Of course, Ron Repasi, in his shoes, has been at the FCC for a while. But he comes into the job, and Covid hits, and people are off. And do they have each other’s cell phones? Do they know how to do a Teams meeting? Is it authorized by the FCC? It just, a lot of that broke down during that period, too.

 

But on the 6G point -- and I think it’s a very good one that -- yeah. On the 5G side, yes, there’s still spectrum that the 5G folks want from the FCC, of course. We want the lower 3.3 GHz band and up to 3.45. But yeah, on 6G -- I think, to your point, Harold, they are trying to do a better job with 6G, but this time through the next G alliance. Right? Bring in the government folks in the front end and try to have these discussions going in and where can we all be. So we are trying to -- or I should say they—the industry and government writ large is trying to learn from those lessons and have it be more science-based and less controversial from the get-go.

 

Adam Candeub:  Yeah. And if I could just jump in as well. From a somewhat more academic perspective, when we talk about spectrum, it’s kind of, I don’t know, an abstraction that doesn’t -- that is a little bit misleading because we’re really talking about spectrum in relationship to devices. And that spectrum -- you don’t just give away spectrum, you give away spectrum conditioned upon devices transmitting at certain power levels and, at the same time, having certain filtering and sensitivity abilities. And engineers, they could -- I mean, actually that’s one of the things is while I’m back here at MSU, I’ve been spending a lot of time with electrical engineers. And it would be possible to develop metrics, I think, for looking at the sensitivity of devices and creating a language—getting back to the notion of trust—about interference and the levels of tolerable interference and requirements of devices, the sort of reasonable type of requirements that you can put on devices, things you would have a common language.

 

I think that that’s a real problem, particularly as we move into 6G, and there’s just going to be more and more sharing issues. And there’s -- we’re squeezing more and more into the spectrum, and that means that there’s going to be more instruments that are going to be receiving out of band. And we have to have some way of quantifying, some way of saying, “Look, this is an expectable range. This is not.” Going back to the altimeters, I mean, it was almost 10 MHz outside the band. I mean, that was one of the things that was so weird about it. It was really outside of its band. And so, putting that as a -- looping in devices as part of the whole equation and creating language that we all can talk about it in a sort of non-sectored way, I think would be a really great step forward.

 

Harold Feld:  Yeah. And let me build on that a little bit because, again, I want to impress on people the difficulty here because we say things like science-based, but in some ways that’s not helpful because there are a lot of different factors that are all -- if you think of them as sort of different dials you can tune, one of them is, what does interference mean? Well, interference has an engineering definition of unwanted noise to signal that you -- to the desired signal. But there’s interference everywhere. There is interference when I move this Diet Coke can because the electrons in here create a magnetic field, and so there’s that little bit of -- and now imagine you’re in an airplane or there are thousands of cars driving by, and those big pieces of metal are all moving. So there’s interference globally all the time. So all systems are built to withstand interference. So we talk about harmful interference. Well, what is harmful interference? Well, that’s interference that is harmful. Okay, what does that mean? It means it’s interference that denigrates the service efficiently so that it is harmful to -- you see the problem. These are kind of self -- to some degree, self-referential.

 

And where we get into this fight -- and the C-band was a great example. There are a number of different tools that engineers around the world use. One is the distance in frequencies -- what we call guard band. And so here, even though technically the whole C-band abuts -- is this wide range that actually abuts up to the altimeter band, the FCC said, “Well, the 200 MHz that is going to be close to the altimeter band is not going to be useable for 5G and C-band.” So that’s what we call a guard band. Technically that wasn’t quite a guard band because there was preexisting traffic there that everybody agreed wasn’t causing a problem, but that kind of idea is called a guard band, just empty space between transmitters.

 

Then there’s what’s called a mission mask, meaning how much energy can go outside of your assigned frequencies because electrons and the radiant energy that we’re talking about is hard to control. So particularly back in older days -- we’ve now got a lot better about this, but in the old days part of the reason why you needed, like, big space -- for example, in television we have these very big guard bands, these 6 MHz empty channels or more between assignments because those were big powerful transmissions, and the energy would leak out, and it would cause interference. If you listen to a radio or an old television, you may remember, you start to see this kind of blurry shape or a mix of the -- that’s the leakage.

 

But the problem with the C-band stuff was -- that Adam was referring to, is what we call listening out of band, which is when you’re a device manufacturer, and you say, “Hey, it costs more money for me to narrow the range of frequencies that my device listens to. So if I know that the neighbors next door are quiet, I can make a much cheaper device that listens in those neighboring bits.” And then ten years later, the little, quiet countryside is now getting a housing development equivalent in it. And you’re like, “What happened to all of my peace and quiet that I have come to expect?” Well you didn’t actually have a right to that peace and quiet because we could always develop this. And those are the kind of fights we’re seeing where, to some degree, it’s a – “Okay, who has the right? What is the right?” And then how do you deal with the fact on the ground?

 

In this case, one of the frustrating things about C-band was we could have dealt with it if, instead of saying, “No 5G never,” the Department of Transportation and FAA had taken the position of, “Set up a fund of money to reimburse people to upgrade their altimeters.” We could have done that. But instead, because they went in a particular direction, it was -- we ended up with a mess, which as the former—or almost former—FAA administrator said, did not serve anybody particularly well.

 

Danielle Thumann:  Well, and you guys have -- we’ve talked a little bit about using this scenario as a lesson to be learned or a potential source of learning lessons. But we’re not done with C-band yet, right? So before we move on to some of these other spectrum conflicts or shift our focus entirely to the process, I mean, what comes next here? We have temporary mitigation measures in place at the moment, but it’s not really clear what’s going to happen this summer. Do you guys have any thoughts on that, or if there is room for further engagement here at this point?

 

Tricia Paoletta:  I’ll jump in before Harold because, as Harold noted, you’ve got different groups of engineers. But the FAA does not have a bunch of spectrum engineers. They were not up to this. And frankly, from what I’ve heard, unlike the relationship with the industry and the FCC, some might think it’s too cozy, but it’s a broad competitive industry. I’ve heard that there’s even -- there’s capture at the FAA, right? So they did not impose very strict altimeters. And for people who are wondering what the hell is an altimeter -- sorry to swear on a FedSoc panel -- that’s the radar, which is bouncing off the ground as the plane is landing. So it’s a piece of safety equipment. Now traditionally, it’s certainly an international spectrum management. Safety equipment has mandatory guidelines, but the FAA did not have very strict mandatory guidelines for those altimeters—the radars that are helping land the plane safely. And, unlike a smartphone where a better chip might cost you five dollars, altimeters are pretty expensive. They’re 30,000 or so dollars. They’re meant to live -- or $20,000 -- meant to live for a long, long time -- 30 years. So there was not a lot of enthusiasm by the aviation community to swap those out. Now, would a reimbursement fund have been a good idea? Possibly. But that wasn’t put on the table, I think, when then-Chairman Pai first proposed this back in 2018.

 

But to answer the question, the FAA is now going through the process of testing all these altimeters. And on some of the planes—obviously, for the bigger major routes and the newer fleets, the Boeing 747s—the altimeters are fine. They’re better. They’re not listing far outside their band. They’ve got tighter receivers. But on these tiny little routes in the third tier of airports out in the country, maybe older aviation fleets, the altimeters probably -- they need to be replaced. They’re still reviewing, right? But so -- who knows. The FAA might have learned from this lesson and thought, “Okay, this was a huge debacle. We need to get through all this review by July when -- after the 4th of July holiday when we’re supposed to get the free and clear.” But there is a chance they get through that whole review, and we won’t have another debacle in the second half of ’22 where we get more “the little boy who cried wolf.” I do think the FAA lost a lot of credibility over this process, and they’re not going to pull that again. I could be wrong, but I assume the FCC -- well, you’re the FCC Danielle. I assume there’s talks underway with the FAA, making sure that we don’t have another nightmare. But sorry. Okay, now Harold you can --.

 

Harold Feld:  Yeah. I mean, just a couple of things I’ll say. In fairness to the FAA, one of the problems was is they didn’t think they needed to worry about setting an altimeter standard, which is, again, kind of the thoughtlessness of when people tell me, “Well, but the FAA is the expert on air safety.” I’m like, “Yeah. But that’s not the same as being a spectrum expert.” And they didn’t think there was ever going to be anything to worry about. If somebody invented an altimeter today -- if the situation were reversed and we had wireless networks deployed, and somebody said, “I have this great safety radar -- this altimeter thing that the ITU has apportioned this band for,” well, we’d start with, “Can you protect it from the existing environment?”

 

And the situation is even worse than just in July because it was only the lower C-band that came online. In 2023, we’re going to have the licenses that are 100 MHz closer to the altimeter band. And it’s been troubling that the FAA has not even -- using its clearance process -- hasn’t even officially cleared for the post-July uses of the band, let alone the anticipated uses of the band going forward in 2023. But to kind of learn from this and try to take some general principles here, I’d say, “Look, because it’s not just this, it’s also 5.9 GHz with the Department of Transportation’s NTSB. There are a couple of other places where federal agencies just don’t want to lose.” And so, the first rule of this really has to be like, okay, once the FCC decision is made and it’s final, that’s the accepted law of the universe. So FAA altimeter -- if an altimeter can’t work -- is not working in this environment, you need to fix the altimeter.

 

Now, if that’s going to be super expensive to the industry, I expect we’ll solve it the way we usually do, which is in an appropriations bill. Somebody will write out a number, and federal funds will be made available. We, in fact, did that with the 5.9 band where the FCC had, in 1999, set aside spectrum for an auto collision avoidance technology that never went anywhere. And after futzing around for 20 years, the FCC finally said, “Okay, you know what? We’re going to phase out the 1999 technology. We’re going to bring in a new, more efficient technology, which is called CV-X, based on 5G cellular transmission. And because it’s a more efficient technology, we’re only going to give you -- we’re going to take back 45 MHz of the 75 that we’d allocated in 1999 and leave you with 30, which given the newer capabilities of the spectrum, actually should be able to do more.” Well, the DOT has been running a bunch of experiments not simply on the “How do we use this 30 and implement CV-X in the most effective way?” but also, “What awesome wonderful things could we do if we got the 45 megahertz back? And isn’t all this Wi-Fi activity going to cause all kinds of interference?” I’m like, “You are not accepting the law of the universe that exists now.” To quote a particular movie, “What we have here is a failure to communicate.”

 

You could either say, “We have 30 MHz. We have a pretty good technology. It’s LTE. We know what 30 MHz block continuous of LTE can do. And we know what kind of interference protection we’re going to have to build into the devices. Or we could try to relitigate it.” Same thing with the FAA. You can either say, “Okay. The FCC has given us until 2023, knowing what the rules are. Our altimeters, as they exist now up to this, are they going to need some kind of upgrade? And if so, how are we going to manage to get that paid for?” Because I have a certain sympathy for people who are helicopters operators for hospitals or folks who bought small planes, who didn’t do anything wrong. It’s one of these -- but times change, and just as we paid everybody 50 bucks for a coupon to convert to DTV so that it didn’t have to come out of the pockets of consumers, I don’t mind if we need to take auction revenue or some other sort of federal appropriation so that hospitals can upgrade their helicopters. But you can’t hold back progress over that.

 

Adam Candeub:  Yeah. And just building on what Harold said -- so reporters are calling me with their FOIA -- they got from their FOIA request responses about this process and about the C-band. And I think it picks up on a lot of what Harold and Tricia were talking about. I wasn’t there at NTIA after the 2019 order where the FCC, as Harold said, set the rule -- This is what we’re going to do -- or had an NPRM be the final rule. And, of course, that goes through an internal IRAC process where all these federal agencies go, and they talk about what has to be done. And I didn’t know about this, but apparently, the FAA did submit comments and it said, “We’re really concerned. This is bad. This is a terrible thing.” And that’s it.

 

And so we were talking about process. I mean, what you have to do is, I guess, inculcate into agencies that “Okay. Is this a problem? Give us cost estimates for a remediation plan. Suggest alternatives. Do the real sort of evidence to show what kind of problem this is.” Because the fact that the FAA didn’t do the census and the certification of all of their altimeters in 2018 when they saw this coming suggests this attitude of like, “Oh, this is a problem we can handle politically,” rather than just saying, “Okay, this is the law. We have to come up with technical measures to make sure that our regulatory goals of air safety are maintained.” And that means figuring out the size of the problem, which they never really did. They just waved their hands and said, “This is a real problem.” And two – “Okay, if it’s the law of the land and the spectrums going to 5G, what are the appropriate and cheapest and safest remediation efforts?” And that’s the sort of dialogue that has to happen before, not after.

 

Tricia Paoletta:  Well, one bright spot on “This is the law of the land,” is the DC court of appeals and the 6 GHz rulemaking did come back in late December on another band of spectrum—not the ones we’ve been talking about—but saying, “The FCC is the abitur on what is going to be harmful interference, what is appropriate technical conditions for sharing. Companies, you can try to relitigate it, but the FCC is the authority.” So I think going forward, that will help with some of these interagency fights or discussions. And again, I think that the C-band—I won’t call it a debacle—was so embarrassing for everybody that hopefully, they’ll be inspired to behave better.

 

And you do have the spectrum coordination initiative between NTIA and FCC, where they’ve agreed. And I understand from folks in the government they’re already meeting at the principal level—so with Chairwoman Rosenworcel and Assistant Secretary Davidson. They are meeting, so I think they’re looking to move forward. But real quick, there is an international context, too, Harold, on a lot of these bands. Right? But on 5.9, for instance—5.9 GHz, which, as Harold noted that the FCC said, “Hey, we think we don’t need all that spectrum for automotive safety but lower 45 MHz we’re going to give to the Wi-Fi folks because there’s new technology there. We’re going to broader bands, faster broadband, that’s all great. So do we just need the 45 MHz at the top of the band? That’s great.”

 

But internationally, the world, which does not move or respond as quickly as the United States does on spectrum policy because of our more dynamic process here -- the world is kind of stuck on their 75 MHz. There’s lots of IT -- the International Telecommunications Union recommendations on that that come out of the United Nations body on telecom. Folks in the CD-X industry are active in those international discussions, so you have that. And then, on the flip side -- and C-band -- you’ve bought a hundred operators globally that are doing 5G and C-band and some level of it and including -- there are operators up to 4.0. So for the second chunk of spectrum that the FCC will put online -- so that’s a positive aspect of the international scene because there will be studies -- there are studies being done on coexistence between altimeters and 5G all the way up to 4.0 and actually even higher—up to 4.2. So hopefully, there will be enough global studies coming out that will help.

 

[CROSSTALK]

 

Tricia Paoletta:  -- more funny business.

 

Harold Feld:  Yeah. The global element is very interesting because one of the things is, on the one hand, you want global standards and it’s a global market now, and also you need harmonization at the borders. At the same time, the US leads. And that isn’t just, “Rah-rah. USA. USA.” The fact is that we invented the entire concept of unlicensed spectrum. We invented the entire concept of spectrum auctions. In both cases, these were radical things that the world thought we were crazy for doing. We invented the incentive auction structure, which -- we are the ones who lead on the DTV transition and reclaiming that spectrum that was internationally allocated and harmonized for broadcast spectrum and saying we’ve got to start taking some of that back and using the broadcast space more efficiently. So on the one hand, yeah, it’s -- we can’t ignore the rest of the world, and we shouldn’t ignore the rest of the world, and we negotiate with the rest of the world.

 

One of the big problems that has come up in these interagency fights was, every three years at The World Radio Conference that the ITU puts on -- and the United States spends a bunch of time trying to develop both a consistent internal position and then a regional position to go for these international negotiations that are, for those of you who have never participated in them, both insanely boring but also insanely important. And we had problems last time because the NOAA was not happy with what was the US official position on a particular spectrum band. And folks from that agency -- and this is where part of the problem really comes in. Whatever the “official” process is, you had folks from that agency go with strategic leaks to the press and with leveraging inter committee fights between the space and whichever committee has jurisdiction over space and the one that is commerce and energy and commerce which have -- and this is a consistent problem. And this is where we really need to point to Congress and say, “Members of Congress need to show some discipline and some restraint here,” difficult as that is to compel.

 

But the reality is that if you listen to the hearing that the House Transportation and Infrastructure Committee had after the C-band debacle, while most members were talking sense about how this was not good, this can’t be allowed to happen again, you had the Chairman DeFazio out there saying, “Well, the FCC is awful, and we ought to let my committee have some decision-making authority here.” Armed Services does that occasionally, too, and as long as these guys are willing to carry the water for agencies going outside of the process, we’re not going to be able to develop a coherent spectrum policy.

 

Danielle Thumann:  Well, so you guys have touched on some of these other conflicts. I mean C-band and the FAA was definitely the most headline-worthy and is probably the most familiar to people outside of the space, but we did have, as you just mentioned, 24 GHz band where NOAA and NASA and others were involved. In 5.9, you had the Department of Transportation. To your point, the US has long been a leader in spectrum policy, but these are not just one-off conflicts at this point. It’s been -- there have been multiple instances of these arising spectrum battles kind of at the 11th hour. So what is the impact long-term, if any, on the global viewpoint of the US engineering decisions, FCC engineering decisions, or spectrum policy decisions more broadly?

 

Harold Feld:  Well, I think there’s a serious concern that the world will lose faith in us. That, if we are perceived as -- I mean, first of all, it is enormously frustrating to me that, as part of this, you see efforts by other industries or other agencies to undermine the expertise and the public safety concerns of the FCC and the NTIA. When I hear people say, “Oh, but what does the FCC know about protecting safety?” I’m like, “Every day, if you’ve ever ridden in an ambulance, you’ve depended on the FCC’s spectrum engineering expertise to protect public safety. If you’ve ever had to deal with things like FirstNet and how first responders respond, that’s the FCC at work.” And the engineers that I know there are super aware of the fact that, if they screw up, it can kill people.

 

So when people strategically undermine the FCC’s expertise in this area, that not only is just, frankly, insulting to a lot of people who care and do their jobs and, in a lot of cases, I think, frankly, have their spectrum training a hell of a lot more recently than you did, but it undermines the faith that the world puts in our spectrum recommendations and spectrum policy. And that has the potential to seriously compromise our ability to take a leadership role at the ITU, to have a strong role in international industry standards-setting bodies, and it is harmful in the long run if it continues.

 

Adam Candeub:  Yeah. And just, if I could just quickly jump in and reiterate some points from Harold. Just one thing -- FirstNet is an NTIA agency. It’s just agency fighting--.

 

Harold Feld:  Right. Right. They run it, but the original spectrum engineering --.

 

Adam Candeub:  Right. Correct. But I think that’s still correct. There has to be -- these issues are partly political, and they’re partly technical. And they have to be settled, hopefully with more technical and more science than with politics. But there has to be a time and place for it, and if it becomes -- if it bleeds out into a special pleading, whether through Congressional committees or through post hoc performances, we just will lack confidence, not simply in the process but people just won’t bid on this spectrum. And we won’t get the new technologies that we want, not because they can’t be safely utilized with existing technology, but because people don’t want to risk the money. I mean, this is not -- these auctions aren’t like your local Christmas church benefit where, if we cancel the auction on March, we could have it on April, and we’ll find someone to bid on the ugly mice and figurine. I mean, these are billions and billions of dollars that have to be carefully set and structured and organized so they can bid on that time. And if you pull the rug from under these people, it’s just not going to happen. We’re not going to get the sort of technology development that we need to survive against China.

 

Tricia Paoletta:  And I would just add that the irony of so many bills from the Senate and the House basically directing the administration to go make sure the US is strong in these international setting organizations including the ITO, including the industry bodies -- but it’s true. If our standard internationally is undermined by the fact that many of the special pleaders have special reception up on their committees of jurisdiction, they’re defeating their own goals. So I agree. We all need to be pulling with the same set of oars.

 

Danielle Thumann:  Since we only have a few minutes left, I want to make sure that we do get to the questions that are in the chat. The first one from Nick Laneman is, “You may be aware that NSF has funded a national center for spectrum innovation called Spectrum X and has an MOA with the FCC and NTIA to steer it. From the perspective of this community, how can we engage and collaborate to pursue impactful RND, disseminate results, and train the future workforce?” Would any of you like to take that one?

 

Tricia Paoletta:  I do know of clients who are engaged in that. Being a lawyer, I’m not actually engaged. But I think there’s an application process, so you might want to -- if you feel you have something to contribute to that, you might want to reach out to the agencies and apply to participate.

 

Harold Feld:  Yeah. I do think that it is important. I think that it’s important also to follow these processes as the research is done. NSF does a lot of very good fundamental research, and their virtue is that their stuff will pay off in the long run. It doesn’t necessarily have to pay off next quarter, and they take seriously serious feedback. And so I think that, even if you don’t apply now to participate, as the process goes on, then the NSF publishes the results of its research, there will be opportunities to take that research and to provide important feedback as well.

 

Adam Candeub:  Yeah. And again, I’m not exactly familiar with the structure, but one of the problems is that -- for instance, the spectrum people at DOD are fantastic, but the spectrum people at the FAA I think -- I mean, I don’t know any of them of course, but I mean, it would be wonderful if they were folded into a community where they were also learning to speak the same language and understand the same concerns. And to the degree that this can reach out beyond the FAA and the NTIA to the spectrum people who are embedded with the other agencies, I think that can only build trust and increase knowledge in understanding of the concerns that we all face.

 

Danielle Thumann:  And I think that brings us to the next question that was asked by an anonymous attendee. “What lessons should the new FAA administrator learn from his or her predecessor as they relate to inter-agency cooperation and spectrum management, particularly as we finish up with 5G and start moving to 6G?”

 

Tricia Paoletta:  I want to set the stage on that. We’re not finishing up with 5G any time soon. I mean, with these standards, there’s different releases where they make more of the features available. I mean, 5G is just starting to be deployed. I mean, we have a lot of uptake. It’s the fastest generation of mobile broadband that’s in terms of its hockey stick growth, but it’s a long tail. And 6G is expected to be rolled out in about 2030, so we’re a good eight years away. And obviously, the standard-setting is working, but I think that lessons learned -- we kind of hit on those earlier, but if others want to address -- we’re not done with 5G.

 

Harold Feld:  I do want to jump in on this with regard to the FAA specifically, which is to number one, take a broad approach in the altimeter survey and not a narrow one. When I heard that they were only testing for the current set of spectrum circumstances and not also being forward-looking with their Alternative Means of Compliance (AMOC) process to consider the post-July environment as well, and then recertify every month, I was like, “Why? Why would you do that? The equipment is not going to change.” And again, you know what the environment will be that you have to test for. So my biggest advice is, assume the existing environment, don’t assume that we’re going to relitigate it, and work within those constraints. And to the extent that there are identified problems, then you can go and see, is it more efficient to try to arrange certain things? Because some things are cheaper than others. If you’re talking about tilt of the antenna, that’s different from trying to reduce power levels.

 

And again, one other thing I just want to stress for the FAA folks and other federal agencies is network operatives spend years planning these deployments. You cannot show up right before they are about to flip on a switch and expect there to be little or no impact even if you’re saying, “Well, let’s just like have an exclusion zone around an airport.” First of all, if you have an exclusion zone of a mile or whatever around a major airport in a lot of major airports—Boston, New York, Newark, Washington, DC—you are cutting out huge chunks of the network. But even if they are places where that is not going to be the case, you have to do all of this new compensation work to make sure that the network functions at a decent level of quality.

 

The other is—and I mean this will all due respect to the FAA and to everyone else—get over yourself. Seriously. Yes, you are important, but this isn’t, as you like to phrase it, safety of airplanes versus cat videos. People live or die on the capacities of these wireless networks, too. Everybody who is trying to reach 911. Everybody who is using this for telemedicine. Everybody who is -- all the first responders who are going to be using these similar technologies. Those are life and death technologies, too. So yeah, you’re part of the mix. You’re important. You’re not ignored. But get over yourself.

 

Danielle Thumann:  With that, I think in our last minute, if you guys have any closing remarks or final thoughts that you’d like to add on, I think that would be wonderful. And Harold, I cannot agree with you more on those final points.

 

Tricia Paoletta:  I don’t have closing thoughts, but there is another question in the chat about when the US or the FCC is going to publish technical coexistence studies between 5G and altimeters. I don’t think the FCC is doing that because you all have already spoken, and I don’t expect further publication. But, Danielle, if you have any insights for our guest from Saudi Arabia.

 

Danielle Thumann:  Oh. Thank you for pointing that out, too. I was looking at the Q&A box, not the chat box. I do not think that the FCC is going to be publishing any additional technical coexistence studies but can look into it and see if there’s anything else that’s forthcoming, but not to the best of my knowledge.

 

Harold Feld:  I just have one final thought I’d like to give, which is this doesn’t have to be a contentious process. There is a great success story in the 3.55 CBRS band where the FCC was negotiating for shared use with the US Navy and with the DOD. And it took several years of engineers working together in rooms, working to establish the technology and develop -- because this was a new proposal, new technology that folks were a little nervous about. But they got to a place where DOD was comfortable, and they were able to expand the availability of the spectrum to eliminate the previously required exclusion zones. And that has been an enormous success story. So while we are focused, understandably, right now on where the process has been contentious, we should also remember that, when the pieces work together, we can really have some tremendous wins for efficiency, for national security, and for commerce all combined. It’s not zero-sum.

 

Adam Candeub:  Right. And I think that I agree completely, and it sort of reminds me of the initial comments, which was when you can get spectrum engineers in a room together, they often will come up with really novel and efficient solutions. And that’s what we should aim to have most of our spectrum discussions at, not at these weird other fora and other institutional contexts that maybe aren’t as productive.

 

Danielle Thumann:  Well, with that, thank you guys so much for joining for this discussion. I think it was a wonderful discussion, robust discussion. I’ll turn it back over to Nick to close us out.

 

Nick Marr:  Thank you all. I just have our customary Federalist Society thanks. Thank you very much for our panelists. All of you did really well. It was a great discussion. I really enjoyed it. Danielle, for moderating and helping us put this together. Thank you to our audience for calling in your good questions. As always, be keeping an eye on your email and our website for announcements about upcoming events just like this one. But until that next one, we are adjourned. Thank you all.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.