We reiterate the tentative conclusion in the Notice that stricter enforcement
of our ex parte rules complements the improvements to the rules we are
adopting today and reinforces their purpose in making our proceedings
more open and transparent to the public and fairer to
interested parties. -- R&O&FNPRM, Docket 10-43 2/2/11

On August 25, 2008, Marcus Spectrum Solutions filed a Petition for Review with FCC dealing with the rejection by OGC of a previous complaint complaint about MSTV’s apparent violation of the Commission’s ex parte rules.

905 days later, on February 16, 2011, the Commission released a Memorandum Opinion and Order (MO&O) denying the application for review. The MO&O was thus released 2 weeks after the Commission adopted changes to the ex parte rules in Docket 10-43 in the decision quoted at the top of this entry.

The start of this string of events was my October 13, 2006 letter to the FCC General Counsel. During the pendency of Docket 04-186, I noticed that MSTV was often late in their ex parte filings and often so cryptic that one did not know what was discussed. Having been away from FCC for 2 years and living overseas at the time, I wondered if maybe this had become common practice. A search through ECFS for major parties practicing before FCC quickly showed that MSTV was actually an outlier and that other corporations and trade associations were consistently compliant with the rules. So I pointed out to the then GC 16 MSTV filings that appeared to violate the rules.

The letter to OGC was answered on March 30, 2007, 168 days later. It informed me that OGC was “aware of no complaints against MSTV by other parties” - apparently indicating that my enumeration of 16 filings apparently in violation of the rules did not constitute a “complaint”. In dealing with subsequent clearly labeled complaints it became clear that OGC was repeating the FCC’s discredited approach to indecency complaints in the 1980s - a “shell game” approach where each complaint was dismissed for a technicality that failed to meet the threshold for Commission consideration.

Thus the appeal of the Commission of the 3rd OGC dismissal of a complaint. In the process of denying the review, the Commission is in denial about the fact that previous complaints were rejected for the following reasons that do not exist in either the rules or formal precedents:

· a requirement that only parties with standing in a proceeding can file complaints;
· an unspecified “statute of limitations” on the timeliness of complaints;
· a standard of compliance that is the practice of other parties in the same proceeding;
· attaching importance to the presence of multiple complaints; and
· a requirement that the complainant prove substantial harm.

Nevertheless, the Commission then dismisses the MSS request that MSTV receive a formal warning about previous violations by concluding “we agree with OGC that Marcus’s complaints have failed to demonstrate significant non-compliance with the ex parte rules by MSTV under the applicable standards.” (para. 23)

However, after all was said and done, MSTV has quietly moved into compliance with the ex parte rules! The last late ex parte filing by MSTV was 11 months ago! A review of their recent ex parte filings shows that this has been achieved in conjunction with making many presentations joint with NAB - which, in contrast to MSTV, has always had an immaculate record in this area - and by using Covington & Burling for most other ex parte filings.

So the record of the appeal is mixed: it established a precedent that “significant non-compliance” is necessary for even a formal warning but it did move MSTV into compliance. For better or for worse, it is also the first Commission action on ex parte enforcement in the 30+ years since FCC adopted its unique approach to dealing with ex parte meetings - something without a counterpart in all other federal agencies dealing with rulemakings.

Wireless technology – especially the advanced wireless broadband technology that is currently driving the infrastructure needs of wireless service providers – generates enormous benefits for businesses, consumers, and the economy as a whole, and is making important contributions to public safety. For that technology to achieve its potential, however, wireless service providers must be free to build their networks across the country.

“In order to obtain the necessary site leases, landlords often want specific antenna locations or insist on identifying the locations themselves. These decisions are often made with minimal or no system engineering information and are sometimes based on purely aesthetic concerns: what location looks the best, or “I don’t want to be able to see the antennas from the street.” When antenna placement decisions are made in this manner — without proper engineering input and review — and then locked in through the site lease, there is often trouble ahead.”

But we also have to be honest that in the mobile industry we are creating some problems. The mobile industry is actually contributing a fair amount to pollution...The mobile industry is also obstructing and cluttering our landscapes and cityscapes with more and more and bigger and bigger and uglier and uglier antennas and towers.

And why is that?We as the equipment vendors are part of the problem. We create big hungry base stations that need to become bigger and hungrier as we add more technologies. We put big towers with antennas and more and more of them every day. And that model and those types of technologies can not continue as our industry grows....

We have discovered the capability of taking these power hungry base stations and take these big and ugly antennas and pretty much make them invisible.

On January 31, 2007, the Spectrum Enforcement Division issued a Notice of Apparent Liability for Forfeiture ("NAL") in the amount of $25,000 to RMR. RMR has not filed a response to the NAL. Based on the information before us, we affirm this forfeiture.

• Incumbent spectrum users need to work together to advocate an effective compliance/enforcement program at FCC

• Recommend major trade groups form a compliance/enforcement advocacy consortium

FlashLinq advances a concept known as proximal communications, whereby users can continuously connect, disconnect and communicate directly with other mobile users at broadband speeds based on their physical proximity. The technology is designed to complement traditional cellular-based services and serve as a scalable platform for new types of applications.“By expanding the operator model of managed services to the frontier of proximal communications, Qualcomm continues to demonstrate its leadership in wireless technology and innovation” said Ed Knapp, senior vice president of business development and engineering for Qualcomm. “FlashLinq’s direct discovery and distributed communications allows operators to naturally extend their cellular networks. The technology can efficiently support new and enhanced services in areas such as direct local advertising, geo-social networking and machine-to-machine communications.”

We determine that these revisions ... will increase the efficiency of Commission decision-making, modernize Commission procedures for the digital age, and enhance the openness and transparency of Commission proceedings for practitioners and the public.

Therefore, consistent with the goal of expanding the ability of interested parties to examine and test information that has been submitted to the government,60 we believe that electronic filings with the Commission should be machine readable whenever technically possible. In particular, filings containing text should be submitted in a format conducive to electronic search and/or copying, such as a Microsoft Word document or an Adobe .pdf copy. Similarly, filings containing non-text information should be submitted in native format such that, for example, third parties can sort the spreadsheet data within a filing using Microsoft Excel or similar programs. In cases of attachments exceeding 500 pages, information to be submitted in a format that does not permit electronic filing, and other exceptional circumstances, we will consider a waiver of the electronic filing requirement on a case-by-case basis, similar to the approach taken in our contemporaneous order reforming our ex parte rules. Finally, filings submitted to ECFS in .pdf or similar format should not be locked or password-protected.

Don’t Protect Your Document: This may not occur to you - agency staff will set on your argument like hungry ferrets, summarizing and digesting it, and reporting the results to working groups. This is frequently achieved by our friend "Cut and Paste." If you copy-protect your document, you make it hard for the staff to work with it. And if you make it hard for the staff to work with your 40 page comment, and they have 300 more comments to read, what do you think will happen?

• Ex parte notices will be required for all oral ex parte presentations in permit-but-disclose proceedings, not just for those presentations that involve new information or arguments not already in the record.
• If an oral ex parte presentation is limited to material already in the written record, the notice must contain either a succinct summary of the matters discussed or a citation to the page or paragraph number in the party’s written submission(s) where the matters discussed can be found. If an oral ex parte presentation includes new information, the notice must contain a summary of the new data and arguments presented.
• Notices for all ex parte presentations must include the name of the person(s) who made the ex parte presentation as well as a list of all persons attending or otherwise participating in the meeting at which the presentation was made.
• Notices of ex parte presentations made outside the Sunshine period must be filed within two business days of the presentation.

Although it would certainly deter parties from violating the rules, routinely barring parties from further participation in Commission proceedings diminishes their ability to influence action from the Commission that would serve the public interest, and it would lessen the pool of knowledge and information on which to base our decisions.

(O)ne agency’s procedural rules do not fit all, and we would be ill-advised to incorporate the ex parte rules of another agency without giving considerable thought to whether those rules would achieve the interests of administrative efficiency, procedural due process and transparency better than our own rules as amended today. From that perspective, we see no clear advantage to the suggestion by Marcus that Commission staff prepare and file ex parte notices. Other agencies may be differently situated to the extent their docket is primarily adjudicatory rather than rulemaking (e.g., the Federal Trade Commission). Also, staff summaries raise an issue of fairness. The complex legal and technical nature of the issues sometimes presented ex parte make it preferable for the parties arguing those issues to summarize them.

The public must be able to trust the science and scientific process informing public policy decisions. Political officials should not suppress or alter scientific or technological findings and conclusions. If scientific and technological information is developed and used by the Federal Government, it should ordinarily be made available to the public. To the extent permitted by law, there should be transparency in the preparation, identification, and use of scientific and technological information in policymaking. The selection of scientists and technology professionals for positions in the executive branch should be based on their scientific and technological knowledge, credentials, experience, and integrity.

[Your blogger has no financial interest or relationship with LightSquared]