Above: our Twitter feed scooped everyone else on the news of the spectrum enforcement cutback on 3/10 and had a
key role in stimulating discussion on this vital spectrum policy issue

As your blogger first tweeted on March 10 , FCC is considering a major cutback in spectrum enforcement activities including both a staff reduction and office closings. We would fully agree that something iOS wrong with spectrum enforcement at FCC now and or the past decade or two, but it seems unlikely that this massive downsizing is the right answer. The proposal is based on a consultant’s report that you blogger has filed a FOIA request for on 03/17/2015 although nothing has been received. A package of related material was received from an outside FCC source and has been posted on DropBox. It consists of a 2 page letter from Chmn. Wheeler to House E&C Chairman Walden, a 2 page letter from Chief, Enforcement Bureau and the FCC Managing Director to the Enforcement Bureau Field Staff, and a 36 slide Powerpoint presentation. There is reportedly a 300 page report behind this, appropriate since the study cost $700,000 - much more than EB has spent in technical equipment in any year for the past several decades. Presumably, when FCC finally addresses the FOIA request we will know if the 35 page prevention is all FCC got for nearly $1M!

Let me bring up some issues that are not addressed in the available documents:

• This is an era of increased spectrum sharing in order to get maximum utilization of spectrum - a limited resource. Many parties, both in the federal government and in the private sector are reluctant to share their spectrum. After all, “what’s in it for them”? The 5 GHz U-NII unlicensed radar spectrum sharing policy change resulted in interference to a safety critical NOAA weather radar. FCC’s spectrum enforcement staff had to sort this out quickly and identify both policy issues and noncompliance issues. While this might not seem a classic function of the Enforcement Bureau, it is a function critical to FCC and its Title III role. In order to encourage future sharing and reallocations, FCC must maintain a credible posture for rapidly resolving such interference whether they are policy based or compliance based. Thus our biggest concern about this proposal is the loss of credibility of FCC spectrum enforcement. While NTIA likes to state publicly that it is in change of federal spectrum management, a more pragmatic approach is that large federal spectrum users such a DoD and FAA and well positioned to drag their feet on spectrum sharing if they don’t feel comfortable with enforcement issues.

• What will be the impact of the FCC enforcement downsizing on federal spectrum users and public safety spectrum users? While FCC could save resources by decreasing its spectrum enforcement staff, if other federal agencies respond by adding more staff and technical resources and if large state and local public safety agencies do likewise there will be no net savings. In particular, FCC spectrum enforcement staff has special legal authority for inspections that other agencies lack. So FAA can increase its staff, but their effectiveness is limited by the law.

• EB a long time ago lost interest in hard core spectrum enforcement. Your blogger worked in EB’s predecessor in the late 1980s after being exiled from OET because of the then controversial decision that is known as the foundation of Wi-Fi and Bluetooth. But during the few years he was there he was actively involved in 4 criminal prosecutions for violations of the Title III and related legislation: 2 satellite jamming cases, 1 Coast Guard false distress case, and 1 FAA air traffic control intrusion/“phantom air traffic controller” case. (There was another case where FCC pushed for prosecution after it identified the source of ATC intrusion, but FAA top leadership refused to cooperate for political reasons so there was no resulting prosecution.) It appears that since the creation of EB there has never been a similar criminal prosecution. While criminal prosecutions are not the only way to deal with spectrum violations, there are some dangerous and antisocial violations where criminal prosecutions are perfectly appropriate. Why hasn’t there been one in the history of EB?

• Historically, the field-based spectrum enforcement staff rotated around the field and some rotated into Washington. Some even transferred from field enforcement to DC-based policy positions. This cos fertilization was very constructive for FCC and resulted in 4 bureau chiefs: MB’s predecessors James McKinney and Lex Felker, WTB’s predecessor Carlos Roberts, and OET’s Richard Smith as well as many middle manager e.g. former IB branch chief Rick Engelman. But in response to Reagan Era budget cuts, FCC stopped virtually all agency funded moving of staff. Whereto this is even legal is debatable. But it certainly is a terrible personnel policy. You are hired in office x which is recent years have all had a tiny staff and you can only get more experience or a new environment if you more yourself to a new location. The consultant’s report says field spectrum enforcement staff morale is low - this long standing policy is a key factor.

• The importance of deterrence. When your blogger first came to FCC, Radio Shack was one of the largest retailers of Title III-regulated equipment. Dave Garner, their regulatory counsel, explained the importance of visible enforcement in equipment marketing. he explained further that product managers frequently tried to cut corners for a competitive edge and that he routinely had to plead to the CEO to block the development and marketing of noncompliant products. He could only do that because FCC had a credible enforcement program for equipment marketing enforcement. It no longer does. Neither EB nor OET wants to check what is really being marketed. What little surveillance there is is done by the commercial testing community which fundamentally has a conflict of interest! They are supposed to check post approval production units for 5% of the models they approve. But this is a sore point for the labs and there is no incentive for them to be suspicious. In reality, the only enforcement is in response to complaints from competitors, preferably those with a prominent lawyer representing them! (While I was in OET I was amused to see a former FCC chairman in private law practice walk in with another partner from his firm carrying a box of equipment. It turns out that his client made car battery chargers and alleged that a competitor charger was cheaper because it did not comply with FCC rules. While visiting the FCC Lab a few days later, I noticed that suddenly testing battery chargers had become a major project!)

• Note that if thousands of units of illegal equipment are sold in the US before they are noticed and action requested by a competitor or interferee, it will take a long time to remove these units from service as long as they perform a useful function for their owner. So delays in finding noncompliant equipment due to lack of effective market surveillance poses a real risk to all spectrum users!

Tags: enforcement, FCC Reform