Net Effect of FCC Receiver Principles Remains to Be Seen
The receiver policy statement circulated by FCC Chairwoman Jessica Rosenworcel (see 2303300070) likely won’t be too controversial and is at least a small step forward on one of the thorniest spectrum issues, experts told us. It builds on a 2015 paper by the FCC’s Technological Advisory Council, picking up some of the same themes starting with “interference realities.” The FCC document lays out nine principles, as TAC did, and in almost the same order. Commissioners approved 4-0 a broad receiver performance notice of inquiry last year (see 2204210049).
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“While the effort to improve spectrum utilization through receiver standards is a well-meaning effort to address an important and tricky problem, I don't see how the policy statement will change anything in the real world,” said New Street’s Blair Levin, former FCC chief of staff. “Mostly it lays out principles that have already governed FCC thinking,” he said: It doesn’t “propose any changes in how the FCC operates in terms of equipment certification, nor does it propose to Congress that there is a need for legal or administrative reform.”
The first footnote in the statement notes that none of the principles are binding. “This Policy Statement is intended to help guide Commission decision-making and stakeholder action as the RF environment evolves and does not constitute rules,” it says: “Accordingly, this Policy Statement is not binding on the Commission or other parties, and it will not prevent the Commission from making a different decision in any matter that comes to its attention for resolution.” The FCC didn't comment.
The FCC correctly proposes principles “that make clear that designers and operators of receivers share some of the responsibility for preventing harmful interference, which is progress,” said Jon Peha, professor at Carnegie Mellon University and former FCC chief technologist.
After adopting principles, the FCC should “begin the important next step, which is to adopt concrete policies consistent with these principles that increase the incentive to use efficient receivers,” Peha said.
“I don’t know if the principles will alleviate the problem -- nobody does,” said Pierre de Vries, Silicon Flatirons Center director emeritus, who worked on the TAC paper. There are reasons for optimism, de Vries said. The policy statement puts spectrum incumbents “on notice” that receiver performance “will be a factor in allocation decisions” which “will change power dynamics in proceedings,” he said. The FCC’s announced intention “to pressure parties to submit relevant information and reproducible analyses should improve decision-making by reducing posturing,” he said.
James Dunstan, TechFreedom general counsel, said the principles appear well drawn up and required considerable thinking by FCC staff. Unless NTIA adopts a similar approach, future “’spectrum wars’ will continue to rage between government and non-government users,” Dunstan emailed: “If government legacy systems are not subject to the same approach as taken by the FCC here, little progress will be made. This is especially true as to the changing RF environment.”
Dunstan expressed concerns about potential loopholes. The policy statement recognizes that some users, including public safety, have a "particular mission or reliability needs that differ from others,” he noted: “Is this going to be a very narrow loophole, or a giant one?” The statement could have done more to “call out” all the Monte Carlo interference studies “that are being relied on by commenters that don't reflect real world interactions,” he said. The FCC also proposes to require that technical parameters be filed under protective order, he said. “This narrows significantly the public's ability to gain access to, and provide commentary on, technical aspects of a rulemaking proceeding.”
The statement is a good step forward, but many tricky questions remain, said Public Knowledge Senior Vice President Harold Feld. “I am hopeful that this helps to limit the game playing we see every time the commission looks to authorize a new service,” he said. The statement “puts all stakeholders on notice that they are not entitled to perfect protection and that incumbents can, indeed, be required to upgrade their receivers to accommodate incoming services,” he said: It also clarifies, using “polite language,” that the agency isn’t “bound to respect receivers that listen out of band.” The FCC also makes clear it won’t hold up new services because of “hypotheticals and worst case scenarios.”
The policy statements aren’t binding, but “they very clearly put everyone on notice,” said Feld, who already met with an aide to Rosenworcel on the language in the item (see 2304040062). No one can claim in a future rulemaking the FCC “acted in an arbitrary and capricious manner or contrary to its established precedent if it declines to protect receivers that listen out of band” or “requires incumbent services to take additional measures to mitigate possible interference,” he said.
The statement seems like “an agreeable outcome of the receiver performance” notice of inquiry “in which the record generally panned the idea of more thoroughgoing regulation of receivers,” emailed Information Technology and Innovation Broadband and Spectrum Policy Director Joe Kane. There’s “a lot to like” in the FCC’s approach, he said: “How much teeth any of this has … will depend on the commission's willingness to stick to it over time.”