First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

5 USC 552(e)

Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.

A recurring topic in this blog has been the state of petitions at FCC. Several time we have use the illustration at left to describe the “black hole” that petitions filed at FCC disappear into.

Now much to our amazement we discovered that petitions “in limbo” - those that have neither been announced for public comment nor dismissed - are not hiding in a black hole awaiting a multiyear determination of whether public moments should be requested or whether they should be dismissed. No, they are “hidden in plain sight” in an “undocumented feature” of ECFS!

§ 1.403 Notice and availability.

All petitions for rule making (other than petitions to amend the FM, Television, and Air-Ground Tables of Assignments) meeting the requirements of § 1.401 will be given a file number and, promptly thereafter, a “Public Notice” will be issued (by means of a Commission release entitled “Petitions for Rule Making Filed”) as to the petition, file number, nature of the proposal, and date of filing, Petitions for rule making are available at the Commission's Reference Information Center, 445 12th Street, SW, Washington, DC and may also be available electronically over the Internet at http://www.fcc.gov/.

This discovery came about as a result of a puzzling detail on the recent NPRM on cell phones in prisons, Docket 13-111. On the first page is the text shown at right listing some of the 7 petitions that resulted in this NPRM. Now the drafters had a little problem: Notwithstanding the provisions of § 1.403 shown above, these petitions had been filed several years earlier, never had been announced for public comment, and thus has no “RM” number which would normally be posted on the cover pages of an NOI or NPRM? What to do?

The poor NPRM author who probably did not know why these petitions were given this odd treatment just filed in the blank with the only number he/she could find: an undocumented feature of ECFS used to store petition in limbo! As the NPRM went through the review and adoption process no one notice they were compromising one of the FCC’s favorite administrative tricks to avoid dealing with awkward issues.

So, SpectrumTalk readers here is the trick for finding these hidden petitions. Go to ECFS and type into the box labeled “Proceeding Number:?” a 7 character string in the following format:

• First 3 characters: PRM
• Characters 4-5: last 2 digits of year
• Characters 6-7: 2 letter code for FCC bureau/office e.g. ET, WT

This explains the mysterious PRM09WT shown in the NPRM. That page has petitions filed in 2009 and assigned to the Wireless Telecommunications Bureau.

(Remember that ECFS defaults to documents filed in the past year so if you want older documents you must enter an earlier date in the “Date Search” input area.)

Several questions remain:

• Do petition leave this address once they get an RM number or are dismissed?
• Where do petitions for a declaratory ruling go?

(By contrast petitions for reconsideration are handled by CGB and go on public notice promptly.)

Based on this discovery some voyeuristic wandering through ECFS discovered these pending petitions that we will scoop our competition on:

• Petition from Mimosa Networks filed on May 1, 2013 “ for the purpose of making spectrum in the 10.0-10.5 GHz band available for wireless broadband services.”
• Petition from Fixed Wireless Communications Coalition filed on May 9, 2012 and amended on February 11, 2013 “to restart the Commission's pending proceeding to establish service rules for Fixed Service operations at 41-42.5 GHz (42 GHz band)”
• Petition from James Edwin Whedbee to”amend Part 2 of the rules and regulations to liberalize equipment use by licensees and permittees.”
• Petition from Ben Bartlett for MBAN Spectrum Allocation in TV White Space
• Petition from Boulder Regional Emergency Telephone Service Authority for “adopt rules requiring wireless providers provide electronic data portals through which Public Safety Answering Points can expeditiously retrieve system and caller information related to 9-1-1 and Emergency Notification Services.”
• Petition from Globalstar, Inc. to “Reform the Commission's Regulatory Framework for Terrestrial Use of the Big LEO MSS Band”
• Petition from Consumer Watchdog “ to Require Mobile Broadband Carriers to Disclose Network Performance”
• Petition from National Regional Planning Council “to create two new public safety specific Radio Service Codes designating conventional and trunked operation in the post re-banded 800 MHz band for spectrum managed by regional planning committees at the local level from 806-851/809-854 MHz.
• Petition from The Society of Broadcast Engineers “to convert the MediaBureau's Consolidated Data Base System (CDBS) to North American Datum 1983 (NAD83) geographic coordinates”

So a question for the incoming Chairman: Does he intend to bring FCC into compliance with the existing requirement of § 1.403 for a prompt public notice announcing petitions for rulemaking? Or do we have to continue snooping around the FCC website to find out what is hidden in the corners?

Tags: FCC Reform, FCC petition black hole