Charter Communications expected to acquire Time Warner Cable in $55 billion deal http://t.co/jzM3wSG7NQ

— Washington Post (@washingtonpost) May 25, 2015

This weekend word broke on yet another cable merger. We have no view on the merits of this merger, or for that matter on the merits of most mergers. But such mergers compete for scarce attention at FCC as it presently operates and detracts from its other duties such as Title III technical policy issues other than more spectrum below 5 GHz for the cellular industry. Even though the merger has not even been formally filed, Chmn. Wheeler has already issued today a public statement before 8:45 AM promising to review it. At least he did not promise quick action.

But what about the statutory promise of 47 USC 157(b) for timely action on “new technology” deliberations? What about new technology deliberations at FCC that seem to be stalled? For example:

• Wireless Innovation NOI - Docket 09-157 (8/27/09)

• Petition of South Carolina Department of Corrections and 30 other state corrections agencies on jamming cell phones in prisons (7/13/2009) (This was finally included in Docket 13-111 after having been never placed on notice for public comment and that docket is also languishing!)

• FWCC 42 GHz petition (5/9/12)

• Issue of interference from FM broadcast stations to 700 MHz LTE cellular base stations apparently resulting from a conflict between cellular rules and broadcasting rules (Since FCC has never acknowledged this issue, we will give it a date of 2 years ago)

• IEEE-USA petition for a declaratory ruling on whether 7 presumptively applies to technology above 95 GHz where there are presently no FCC rules (7/1/13)

• Battelle petition for Fixed service rules at 102-109.5 GHz (2/6/14)

• NOI on Mobile Service above 24 GHz (10/17/14) - Note that while not much time has elapsed, Ofcom, FCC’s UK counterpart has already issued two documents on this issue as well as a consultant’s findings since the issuance of this NOI! This is cutting edge technology moving quickly with government funding in many other countries, but uncertainties with FCC’s position are deterring private capital formation in USA in this technology.

• (While we can’t attach a date to it, the FCC’s continuing silence on all matter associated with spectrum for UAV’s/drones just drones on as the general issue of civil drones attracts ever growing attention. While there appears to be a dialogue between FAA and FCC on the issue, there is no statement on where drones may or may not use spectrum or any proposals.

Perhaps FCC has a valid viewpoint with its secret interpretation of the Communications Act that Section 5(c) trumps the Section 7 requirement on timely action for new technology. But if this is so, perhaps the Commission should tell Congress and the public that Section 7’s promise is now moot and you should expect dilatory action on everything except corporate mergers and more spectrum for cellular carriers?

In preparing for a talk this week, I was reviewing a video placed on YouTube by MobileFuture, a lobbying group representing many cellular interests. I noticed this predicted outcome of not giving cellular interests all the spectrum they want:

The irony is that the Commission’s current paralysis on more spectrum for cellular carriers and corporate mergers, not to mention partisan feuding over net neutrality, has resulted in chilling innovation for other wireless technologies not of immediate interest to the cellular industry, even backhaul technologies such as in the FWCC and Battelle petitions! As our national competitors subsidize R&D for these technologies, the US risks losing technological leadership unless FCC gives some signals to the private sector. (See p. 8-14 of NYU WIRELESS Docket 14-177 Comments)

So a modest proposal: no action on the new merger request until FCC makes real progress on cleaning up its Title III backlog.

We could point out that while FCC has made a promise on timeliness on corporate mergers, the statutory promise of Section 7 would seem to take precedence unless FCC wants to put its cards on the table and publish its secret ruling about why Section 5(c) makes that moot.

Tags: FCC Reform, FCC petition black hole, innovation, Section 7