Resolving Spectrum Disputes

I wrote a nice little op-ed for Bloomberg Law last week about the FAA thing, “FAA Aside, It’s Time to Move Forward With 5G.” The emphasis is on risk assessment, an increasingly important part of tech policy that remains poorly understood.

In spectrum policy, risk assessment is most commonly about the interference between services in adjacent spectrum bands. This is especially worrisome when low power services, such as GPS and GEO satellites, are assigned slots next door to terrestrial radio services. This was the case in the LightSquared controversy ten years ago.

That case was very similar to today’s FAA v. C-band dilemma: a legacy service designed to operate in a very quiet spectrum neighborhood was clamed by its advocates to be too fragile to interoperate with nearby cellular service. Despite the passage of time and the eventual bankruptcy of LightSquared, the coexistence dilemma remains unresolved.

Spectrum Rights are Often Merely Presumed

These battles follow a familiar script: the new service is proved by its proponents to be well-behaved, with its transmitters confining the bulk of their power to their licensed band. The FCC establishes a guard band between the legacy service and the new one, based on its expert analysis of radio propagation.

But all is not good because the protectors of the legacy service claim the FCC botched the analysis and its products will fail despite the guard band. They keep most of the critical information close to the vest and ask us to trust them.

While the FCC has very clear guidelines for licensees about power levels and signal degradation, it has never published performance guidelines for receivers. Any industry with a good public image can effectively rob spectrum licensees of their rights by making allegations of harm – well founded or otherwise – to the press.

The De Facto Spectrum Court

Relying on public opinion to resolve spectrum disputes deprives both licensees and the public of benefits from investment in new services. There has to be a better way than the court of public opinion.

One way to approach this problem would be to create a specialized spectrum court on the model of the “vaccine court” that resolves suits claiming vaccine injury. That court was created by an act of Congress:

The National Childhood Vaccine Injury Act of 1986 created the VICP [Vaccine Injury Compensation Program], which began on October 1, 1988, after a series of lawsuits threatened to cause vaccine shortages and reduce U.S. vaccination rates.

This court was created because the general-purpose court system proved incapable of adjudicated highly scientific cases in a fair, expeditious, and cost-effective manner. Another version of this approach is the Patent Trial Appeal Board (PTAB) that resolves junk patent claims.

Requirements of a Spectrum Court

A specialized spectrum court would need to include elements of mediation as well as simple adjudication. In reality, spectrum conflicts are nearly always resolved by both parties agreeing to (often very slight) modifications in their systems, forms of measurement, and/or theories of harm.

Bringing the parties to the point of agreement requires both technical knowledge and skill at mediation. It’s a rare dispute where only one party is clearly in the wrong.

It’s more common in spectrum disputes for both parties to withhold information from the other that may be needed in an general court case. A venue inside the FCC staffed by spectrum experts and administrative law judges would probably be better.

Withholding Information

The lack of specificity in the FAA’s complaints about the use of C-band spectrum by mobile networks suggests a withholding of information. If the agency would share specific harms to specific devices under specific conditions the dispute could be resolved in minutes.

It’s quite likely that FAA is making vague claims of harm because it knows its information is incomplete. It’s likely that the agency lacks detailed and complete knowledge of total inventory of altimeters used by US general aviation.

It’s been licensing radio altimeters since the 1950s when record keeping was all about paper. Many years ago the agency should have created an up-to-date inventory of operating equipment.

A Reasonable Conversation

A database would enable FAA to make reasonable risk assessments without simply assuming that every single altimeter will fall over in the presence of a 5G mobile phone. All it takes to make this work is sharing data with the spectrum experts at the FCC.

If the FCC ran a spectrum court it could order FAA to produce its documentation and the parties could have a reasonable conversation. Bringing the data to the FCC would take time if the data doesn’t exist, but it will take even more time to collect the data and train FAA on radio risk assessment.

FAA Recalcitrance Threatens Disruption

It doesn’t appear, however, that FAA wants to have a reasonable conversation with the FCC, let alone with the mobile communications industry. In today’s Wall Street Journal FAA administrator Steve Dickson is more recalcitrant than ever:

Now, the wireless fight has placed Mr. Dickson at odds with telecommunications companies and their regulator as the FAA chief considers imposing flight restrictions ahead of a planned Jan. 5 rollout of new 5G services. Aviation-industry officials say those 5G signals could interfere with key cockpit safety systems used to land aircraft in poor weather, prevent crashes and avoid midair collisions.

While the telecom industry, which began preparing for the rollout three years ago, has said the available evidence doesn’t show 5G signals will interfere with airplanes, Mr. Dickson has the authority to impose restrictions if he perceives possible safety hazards. The FAA is expected to outline potential flight limits as soon as Friday or early next week, people familiar with the matter said.

The potential flight limits could significantly disrupt air travel, leading to cancellations and diversions in bad weather and reduced airline schedules, aviation-industry officials have said. Mr. Dickson has said the FAA is working with telecom companies to avoid that.

While Dickson may well lack the information to make a reasonable decision, he nonetheless has the authority to do so. And authority counts for much more than knowledge in Washington DC.

The Power Struggle Needs to End

The Journal suggests that Dickson is relying on his own gut feeling rather than on staff judgment. He apparently considers the FAA to be his personal fiefdom rather than an agency of multiple centers of expertise.

If this is the case, it will be necessary to force Dickson to delegate decision making on the question to staff. In the interest of optics, it wouldn’t be a bad idea for the FCC to do likewise.

Taking the political players out of the issue and leaving the decision making to people capable of negotiating a reasonable resolution appears to be the key. Radio risk assessment is a complex, multivariate problem, precisely the kind of thing that territorial political players don’t do well.

It’s time to smoke a peace pipe.