We sent a joint letter to the House and Senate Armed Services Committees on this topic today, which you can read here.
Perhaps the most impressive thing about 5G – the next generation of wireless technology — is that it manages to bridge the hyper-partisan divide in Washington, D.C. Democrats and Republicans — including President Trump himself — support Federal Communications Commission Chairman Ajit Pai’s “5G Fast Plan” to open huge swaths of wireless spectrum necessary to support 5G technology and “win the 5G race” with China. It may therefore surprise you that the greatest resistance to the FCC’s 5G plan comes from within the Trump Administration itself. Federal agencies have mounted an increasingly public campaign against the FCC, declaring in ever more urgent terms how every FCC spectrum decision puts critical services at risk.
Things have now come to an all-out war between the Department of Defense and the FCC over the decision by the FCC to approve a new 5G network by a company called Ligado. The Defense Department claims Ligado’s operation will interfere with vital GPS operations. (The DoD runs the nation’s GPS satellites for military operations, despite the public’s ubiquitous use of GPS.) This has become a proxy for the general civil war on 5G within the Trump Administration and Congress, with cabinet Secretaries publicly contradicting each other and members of the Senate and House Armed Services Committees feuding with members of the Commerce Committee (which has jurisdiction over the FCC). Unless contained, this 5G civil war threatens to paralyze the rollout of new spectrum for 5G.
How the Federal Spectrum Policy Broke Down.
Coordinating new commercial spectrum uses with federal agencies is a contentious process. Federal agencies are focused on their individual missions, and changes in the spectrum rules for neighboring commercial bands can impact federal operations. Like a neighborhood housing association, federal agencies can always find reasons to veto any change that impacts the neighborhood. Congress and the Executive branch created the National Telecommunications and Information Administration (NTIA) to coordinate spectrum use among federal agencies and work with the FCC. But to limit delays and keep America on the path toward progress, Congress vested the FCC with the power to make final spectrum decisions. This recognizes the FCC as the expert agency best suited to see the “big picture” on spectrum while still balancing the legitimate interference concerns of other agencies.
It takes strong supervision from the White House to force agencies to work together. Unfortunately, President Trump seems more interested in agencies fighting with each other to win his approval than in the details of spectrum policy. Unsurprisingly, the already contentious process of spectrum coordination has completely broken down on 5G. The head of NTIA quit in frustration after only 18 months, further aggravating the situation. Last December, the Chair and Ranking Member of the House Commerce Committee sent a rare bipartisan rebuke to the Government Accountability Office asking for an investigation into how the federal spectrum coordination process became so broken and how to fix it.
The Ligado controversy illustrates this breakdown. The licenses Ligado holds include several that operate close to (but not on) the band used for GPS. When the current company acquired the spectrum rights in 2015, it began a process of working with various stakeholders and federal agencies to resolve long-standing interference concerns. Based on negotiations among stakeholders and numerous engineering studies — including two separate federal studies, one conducted by the Defense Department and the National Institute for Standards and Technology, the other by the Department of Transportation and NTIA — the FCC sent a preliminary decision to NTIA for federal review in the fall of 2019. The FCC required extensive modifications to Ligado’s license to protect GPS, including a substantial reduction in power and that Ligado give up use of a block of spectrum closest to GPS as a “guardband” to further protect GPS. If, as the Defense Department likes to say, Ligado is like a neighbor playing loud music next door, the FCC solution was to take away Ligado’s amplifiers and move them two and a half blocks down the street.
Nevertheless, the DoD remained unmollified. It demanded that the FCC adopt a new, far more restrictive standard for measuring harmful interference. Ligado vigorously protested DoD’s unprecedented and unsupported demand, noting that if DoD’s precision guidance systems were fragile enough to need such a restrictive standard then anyone could disrupt them using equipment purchased from Amazon. Rather than give the DoD a de facto veto on 5G spectrum, Chairman Pai put the Ligado decision to a Commission vote. The 5-0 vote in favor, from an FCC that has frequently split along party lines, reflects the FCC commissioners’ confidence in the agency’s engineers, who have been successfully resolving tense spectrum disputes for decades.
The Defense Department Goes To War With the Future of 5G at Stake.
In response, the Defense Department launched a “shock and awe” campaign, warning that the nation’s GPS systems will suffer serious interference unless someone reverses the FCC decision. While Ligado itself is not the only part of the 5G rollout, the principle that we have a single spectrum policy run by the FCC is key to our success. If four years of engineering analysis is not enough to carry the day, the FCC becomes effectively paralyzed.
The FCC understands the importance of GPS and other crucial federal and public safety operations. Protecting these types of services from harmful interference was a major reason for creating the FCC, and it is part of its regulatory DNA. The FCC’s engineers have a well-earned reputation for resolving spectrum disputes in ways that both protect existing services and promote wireless innovation. It’s why the U.S. leads the world in wireless innovation. Every spectrum fight is contentious, but if federal agencies can veto any FCC decision they don’t like, then the race to 5G is effectively over — and we’ve lost it to ourselves.
About Harold Feld
Harold Feld is Public Knowledge’s Senior Vice President and author of “The Case for the Digital Platform Act,” (Public Knowledge & Roosevelt Institute 2019) a guide on what government can do to preserve competition and empower individual users in the huge swath of our economy now referred to as “Big Tech.” Former FCC Chairman Tom Wheeler described this book as, “[...] a tour de force of the issues raised by the digital economy and internet capitalism.” For more than 20 years, Feld has practiced law at the intersection of technology, broadband, and media policy in both the private sector and in the public interest community. Feld has an undergraduate degree from Princeton University, a law degree from Boston University, and clerked for the D.C. Circuit Court of Appeals. Feld also writes “Tales of the Sausage Factory,” a progressive blog on media and telecom policy. In 2007, Illinois Senator Dick Durbin praised him and his blog for “[doing] a lot of great work helping people understand how FCC decisions affect people and communities on the ground.”