Ligado Recon Petitions Seen Likely to Get FCC Answer
The FCC -- perhaps as soon as summer's end -- is expected to act on petitions to reconsider its Ligado order (see 2005210043), instead of letting the petitions sit in limbo, participants and watchers said in interviews last week. Three House Armed Services Committee leaders are pressing the commission about a potential “conflict of interest” involving Technological Advisory Council Chairman Dennis Roberson “that may cast doubt” on the commission’s Ligado approval. The Senate Armed Services Committee advanced a version of the FY 2021 National Defense Authorization Act last week that would bar “use of DOD funds to comply” with the Ligado order pending further review (see 2006110026).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
An FCC official confirmed the agency is likely to act instead of let them sit, especially given the political interest and since doing so would clear the deck for the matter to head to court and get a final determination. We were told commission action on the petitions almost surely won't come before DOD briefings with the agency about classified test data. Pai told House Armed Services members last month DOD hadn't offered any such briefings in advance of its decision (see 2005270045).
There's no statutory reason why the FCC has to address the recon petitions, and most "linger for years," said Public Knowledge Senior Vice President Harold Feld. He said NTIA's recon petition that asked for a stay (see 2005220055) can be seen as creating a sense of urgency and the FCC might not want to be seen as dawdling procedurally on addressing the petitions. If the FCC sits on the recon petitions, the Ligado order could end up being reversed by potentially a different administration in charge of the FCC after this fall's elections, experts said. The Ligado order got 5-0 bipartisan support, but "you never know who ultimately is going to be put in," Feld said.
Given congressional interest and pushback, the FCC would be hard-pressed not to answer the petitions, said Resilient Navigation and Timing Foundation President Dana Goward. Chairman Ajit Pai made clear he's interested in freeing up spectrum for wireless connectivity, and Ligado approval advances that goal, meaning Pai is disinclined to sit on the petitions, said Joel Thayer of Phillips Lytle. Not acting on the recon petitions "would be a reversal of sorts" for his spectrum push, said Thayer, outside counsel for tech think tank Lincoln Policy.
Thayer said an FCC answer could come this summer. "If it's going to move, it's going to move fast," he said. Feld said it's likely late summer or likelier fall. The agency didn't comment Friday.
Many think it's unlikely the FCC will substantially reverse course, especially given the unanimous commissioner support. Unless there's something in the record showing the agency acted arbitrarily or capriciously, there's no reason to reverse, said Georgetown Law Institute for Technology Law and Policy Distinguished Fellow Gigi Sohn.
If the agency doesn't reconsider, litigation seems likely, officials said. Opponents to the order aren't likely to win, but there aren't huge downsides to suing, especially since that keeps the issue alive before Congress, Sohn said. Capitol Hill action isn't likely, either, but "maybe lightning strikes," she said. Thayer said there seems to be enough interest on the GPS stakeholder side to pursue legal action.
Litigation "is possible," said Goward. It wouldn't come before the FCC has finished its administrative process, because a court wouldn't move on any complaint before then, he said. There seemingly hasn't been a definitive decision among opponents to sue, and that likely would depend on what the FCC says in its recon petition decision, he said.
FCC technical experts “repeatedly acknowledged the potential for Ligado’s operations to interfere with GPS” during a May 21 briefing for House Armed Services (see 2005210043), but “they noted that these concerns did not meet the Commission’s definition of ‘harmful interference,'" said House Armed Services Strategic Forces Subcommittee Chairman Jim Cooper, D-Tenn., and two Republican subcommittee ranking members in a letter to Pai released Friday. The FCC decides its definition of harmful interference “is based upon spectrum management principles derived” from TAC recommendations, which is problematic because TAC head Roberson is also CEO of Roberson and Associates, which in 2016 did an interference test for Ligado counsel Covington & Burling, the lawmakers said. The other signers were Strategic Forces ranking member Michael Turner, R-Ohio, and Intelligence Subcommittee ranking member Elise Stefanik, R-N.Y.
“The RAA test is referenced more than eighty times in the approval order and was clearly a significant factor in the Commission’s decision," the House Armed Services leaders said. "In addition to this testing to support Ligado’s technical claims, [Roberson] publicly advocated against the testing standard recommended by GPS experts." A "recusal from related policy development could have prevented an appearance of a conflict of interest,” the lawmakers said. They asked the FCC to refer the issue to its independent inspector general. They asked the commission to explain how Roberson’s role as TAC chairman “while also being paid by Ligado to verify Ligado’s technical arguments does not, at minimum, give rise to the appearance of a conflict of interest.” The FCC and Roberson didn’t comment immediately.
“Roberson and Associates’ expertise is so well-known and well-regarded that many federal agencies, including the NTIA and the DoD, rely on Dennis Roberson as an expert,” a Ligado spokesperson emailed. “It is unfortunate that the conversation has sunk to the level of personal attacks. It is simply a way to distract from the facts that led to the FCC’s bipartisan, unanimous decision.“