FCC's Ligado Approval May Be Challenged

We were told Commissioners Jessica Rosenworcel and Geoffrey Starks concurred due to concerns about the interagency process. The FCC didn't release any such statements.

Dana Goward, Resilient Navigation and Timing Foundation president, emailed that RNTF or the GPS community challenging the order either in court or with a reconsideration petition is a possibility, though they their success would be far from certain. "The constellation of political appointees and Wall Street interests likely made this a slam dunk and would make any [appeal effort] a hard sell," he said. Capitol Hill action would be more likely to have an effect, though that also would be an uphill battle, he said.

While the order is likely headed to court, an FCC win is probable due to the dispute's technical nature and the deference courts gives expert agencies, said R Street Technology and Innovation Policy Manager Tom Struble. The FCC is probably the foremost expert on interference and spectrum issues, Struble said. He said Iridium might be the most likely to lead the appeal because it would have standing. He said ultimately such an appeal could have federal agencies at odds with one another, with the FCC on one side and DOD and Department of Transportation on the other, briefing in support of Iridium, much like the Qualcomm antitrust suit pitted FTC against DOJ (see 2002120059).

Struble said a company in the GPS universe might also have standing to challenge the order. He said the FCC would be right to be frustrated with NTIA's Interdepartment Radio Advisory Committee process and how NTIA turnover has disrupted what would otherwise be a cleaner handling of agency disagreements. He said Attorney General William Barr's and National Economic Council Director Larry Kudlow's support for the Ligado decision might stop further executive branch opposition. DOD and numerous other agencies urged the FCC to reject the Ligado low-power terrestrial broadband plan (see 2004130030).

Public Knowledge Senior Vice President Harold Feld said a challenge would face an uphill slog because interference issues are the kind of expert agency determination courts “give peak deference.” “After 10 years, this is hopefully the end, the final word, for Ligado,” Feld said.

The approval sends an important signal to other agencies that the FCC is making the final decisions on commercial spectrum use and won't give in when other agencies push back, Feld said. "Spectrum policy has become a free-for-all" and the FCC, after trying to work collaboratively with other agencies, is indicating it's "out of patience with this," he said.

Iridium in a statement said that it still needs to read the approved order and that FCC statements about incumbents being protected by conditions are hopefully correct. It didn't comment on litigation possibilities.

The approval saw some Hill pushback. House Infrastructure Committee Chairman Peter DeFazio, D-Ore., and Rep. John Garamendi, D-Calif., had urged FCC Chairman Ajit Pai to reject Ligado’s application. Approval of the order “would result in unacceptable interference with GPS signals according to numerous government studies, including information sent only last week to the FCC from” NTIA, the lawmakers wrote. “Improper resolution of issues with the 5.9 GHz spectrum would limit the Nation’s ability to establish new innovations in intelligent transportation.” The legislators earlier urged Transportation Secretary Elaine Chao to share previously undisclosed studies and analyses with Congress. Senate Armed Services Committee Chairman Jim Inhofe, R-Okla., and others pressed President Donald Trump to intervene against Ligado (see 2004160030).

The GPS industry is "deeply disappointed by [the] decision, which appears to ignore the well-documented views of the expert agencies charged with preserving the integrity of GPS," GPS Innovation Alliance Executive Director David Grossman said in a statement. "GPSIA has consistently advocated for adoption of the 1 dB Standard as the only reliable mechanism that provides the predictability and certainty to ensure the continuation of the GPS success story,” with support of DOD, Transportation and other federal agencies. The 1 dB Standard for RF-based services “is critical for GNSS. The FCC’s press release refers to conditions placed on Ligado's application to prevent harmful interference and GPSIA and its members intend to carefully review the details of today's order while continuing to vigorously advocate for promoting, protecting and enhancing GPS."

Renee Leduc, founder of aerospace and weather governmental consultancy Narayan Strategy, emailed there were concerns about “the unusual events that have led the FCC to approve this action. Given Ligado's unreliable record with communicating with the weather enterprise about our valid concerns about their proposed sharing, we are fundamentally concerned since their current proposal will result in interference that will disrupt real-time information from weather satellites.”

DOD said it stands by its position that the FCC's Ligado decision puts all the various uses of GPS at risk.

Pointing to increased needs for mobile connectivity, the Wireless Infrastructure Association cheered the approval. Sen. Mike Lee, R-Utah, tweeted that 5G networks and IoT “will require decisive decision-making to reallocate spectrum for higher and better uses” and Pai “is right to rely on engineering and technical analysis to support these decisions so that we balance interference concerns with innovation.” The Taxpayers Protection Alliance tweeted that approval is “such good news for taxpayers and consumers. More spectrum is essential to closing the digital divide.” Free State Foundation tweeted that approval “should advance” 5G and IoT and that Pai deserves credit for moving on the decision.

Ligado "is fully prepared to play a key role in building the very best networks to serve the demands of critical industries and advance the next generation of American infrastructure," company Chairman Ivan Seidenberg said in a statement.