FCC Ligado Plan Gets Recon Petitions; Thune Backs Company's OK

Friday is the deadline for reconsideration petitions. The FCC didn't comment.

The tests and evidence the FCC used to justify its decision "were inadequate to rule out failure modes that can result in serious adverse safety consequences resulting from interference with critical GPS-dependent aviation equipment and services," the Air Line Pilots Association (ALPA) said in the docket 11-109 petition posted Wednesday. Other opponents of the FCC's approval, including Lockheed Martin, Iridium, Trimble, Cargo Airline Association and various aeronautical interests, announced they are filing recon petitions. Many jointly lobbied the FCC against Ligado approval (see 2004160030).

ALPA said FCC approval "raises important public policy concerns that should have been addressed in an open and comprehensive public proceeding ... rather than in this limited license application proceeding." Since the spectrum involved is small and not part of the FCC's 5G plan, approval was "unreasonable and arbitrary" because the agency didn't properly consider aviation safety standards, ALPA said.

In a draft recon petition to be filed, Iridium raised similar criticisms, saying the agency wrongly dismissed the harms of Ligado's L-band terrestrial wireless plans, especially evidence of interference to adjacent-band activities. The company said the Communications Act Section 343 requires the FCC resolve interference issues.

Ligado Backers

Ligado backers don't expect the FCC to back down.

It's highly unlikely the FCC will grant a recon petition, Incompas CEO Chip Pickering emailed. "Petitions are sometimes granted, when there is a change of Administration, if a proceeding was voted on partisan lines," he said. "In the Ligado case, the vote was unanimous and no change has occurred." Pickering said the petitions are probably part of a Hill strategy to pressure agency Pai. "The opponents of the Order will now say he has a vehicle before the Commission to modify or reverse previous Order. I do not believe the opposition will be successful in this case," he said. Incompas backed Ligado's greenlighting.

A recon petition "is always a logical next step [as] it keeps the issue open," emailed Public Knowledge Senior Vice President Harold Feld. PK supported the Ligado order. Feld said petitioners are likely "hoping that Congress will brow-beat the FCC into submission" and a recon petition is a vehicle. "Without it, Congress would have to push the FCC into a sua sponte," he said. It allows challengers "to stuff the record with newly activated stakeholders," he said. DOD opposition to Ligado's terrestrial wireless plans (see 2005060065) has been to portray pushback as widespread, and mobilizing contractors and subcontractors "to file 'me too' comments helps with the political pressure," he said.

"On the plus side, [FCC Chairman] Ajit Pai didn't have any problem ignoring the millions of comments in favor of net neutrality and [Communications Act] Title II." Feld said. "I never thought I'd have cause to be grateful for that, but it may come in handy for spectrum policy."

Ligado emailed it "fully expected those who are still complaining about the FCC’s bipartisan, unanimous approval to file reconsideration petitions, and we even expected them to make a big show about it. We are confident they will provide no information that the FCC has not already considered, and that the FCC’s Order will stand. What’s odd, however, is that they continue to push false rhetoric about our future business plans, which they know absolutely nothing about. We have taken immediate steps to move forward on our business -- working through the standards process and with the wireless ecosystem -- so Ligado can help advance U.S. 5G infrastructure as soon as possible.”

Georgetown Law Institute for Technology Law and Policy Distinguished Fellow Gigi Sohn emailed that the petitions are "about keeping the issue alive." She said it's about "hoping the lightning strikes, exhausting all agency processes before going to court and depending on how long things take to get resolved, perhaps getting another bite at the apple with a different FCC."

Hill Moves

“I think [the FCC] went about” deciding to approve Ligado’s plan “in the right way,” Thune told us Thursday. “They have a very thorough process, and they looked at all the technical aspects of the deal. It’s something they’ve been working on for a long time, and they got a 5-0 vote” from the commissioners. “It seems to me, at least, that the FCC did their due diligence when they came to the conclusion that they did,” he said.

“I know this ends up always being a contentious issue, but we’re going to have to figure out, if we’re going to win the race to 5G, how to better share and better allocate spectrum,” Thune said. Hill interest in the Ligado debate is likely to continue after Memorial Day recess, since House Commerce Committee Chairman Roger Wicker, R-Miss., is contemplating a hearing (see 2005200037).

The Pentagon is still eyeing a push for Congress to intervene against Ligado if the recon petition process fails. DOD officials were to brief House Armed Services Thursday on the department’s opposition to the Ligado plan, U.S. Space Force Chief of Space Operations Gen. Jay Raymond said during a call with reporters. “Congress can and, we hope, will take whatever action is necessary” to force the FCC to reverse course, said Undersecretary of Defense-Research and Engineering Mike Griffin during a Wednesday Washington Space Business Roundtable event. Lawmakers need to “continue to protect space communications bands for space communications.”

FCC Wireless Bureau Associate Chief Charles Mathias and Office of Engineering and Technology Acting Chief Engineer Ron Repasi were also expected to brief House Armed Services, but the committee didn’t invite Ligado to share its perspective, lobbyists told us. The FCC and House Armed Services didn’t comment.

Ligado Chairman Ivan Seidenberg and CEO Doug Smith defended the plan in a Thursday letter to House Armed Services Chairman Adam Smith, D-Wash., and ranking member Mac Thornberry, R-Texas. “Flawed analogies from [DOD] about potential interference ignore basic spectrum physics,” the executives wrote. “These analogies simply ignore the enormous distance that the FCC created between GPS and Ligado. They make for good sound bites, but the laws of physics and common sense do not permit us to ignore the significance of the 23-MHz guard band as we assess the impact of any noise Ligado’s operations might create.”

DOD’s “main goal appears to claim commercial spectrum allocated to Ligado,” Seidenberg and Smith wrote. The department wants “to have the entire swath of” the mobile satellite service band “set aside for the use and protection of GPS.” There “is no precedent for a spectrum grab like this without due process and just compensation,” the executives said. “All the test results establish that there is no need to lay fallow a huge amount of commercial spectrum to protect GPS devices when all those devices will be protected.”

Former House Armed Services Chairman Buck McKeon, R-Calif., who now lobbies for Ligado, said Wednesday he’s “cautiously optimistic” the Armed Services briefing “will be a constructive dialogue that gives priority to the independent analysis of the FCC.” McKeon “opposed Ligado” when he was Armed Services chairman but now backs the company because it “modified its proposal substantially to mitigate potential risk to GPS,” he said in a C4ISRNet opinion piece. “Extensive testing verified that those modifications work.”