Archive for July, 2015

Revamping Predictive Judgments & Interim Rules

Monday, July 27th, 2015

In addition to setting overall timelines for Commission review of agency rules, as I previously suggested, there are two agency practices that warrant re-evaluation: where the agency uses “predictive judgment” to establish a policy or rule; and where the agency adopts an “interim” rule. In both instances, the Commission supposedly relies on the best information to make a decision that is inherently time limited. Unfortunately, when used, there is often no follow-up with hard facts or final guidelines. That means those offering or getting communications services in the marketplace are forced to adhere to rules based on stale decisions or outdated information. We can and need to do better.

Predictive Judgments

During its proceedings, the FCC sometimes makes predictions about how marketplaces will evolve and about the effect of its rules or policies for the industry and stakeholders. This exercise is intended to be an educated and reasoned estimation, based on the circumstances before the Commission during the time, of the most logical and likely outcome in a particular situation. As an specialist agency, the FCC’s “predictive judgments” are often afforded deference by the courts, provided that they fall within the agency’s “field of discretion and expertise” and are the result of “reasoned decision-making”. Therefore , it is not uncommon for the FCC in order to invoke this terminology in its orders, particularly when it comes to controversial decisions that are likely to be challenged in court. Certainly, the term is used more than a dozen moments in the 2015 Net Neutrality Purchase and 8 times in the last year USF/ICC Transformation Order. It was lately used as a foundation for the Commission’s decision that designated entities getting taxpayer subsidies to participate in wireless auctions can lease all of their spectrum and do not have to be facilities based. Plus, predictive judgment even appeared as a justification for creating reserve licenses in the upcoming incentive auction.

When employed, courts have discussed that the agency has a duty in order to reevaluate its predictions should they fail to materialize. For example , in Aeronautical Radio v FCC , one court deferred to the Commission’s predictions on the effectiveness of global coordination “with the caveat , however , that, if the Commission’s predictions… prove erroneous, the Commission will need to reconsider its [decision] in accordance with its continuing obligation to practice reasoned decisionmaking. ” Nonetheless, the FCC’s predictions, as well as the rules and policies based upon all of them, can endure for years without being revisited. Indeed, they are typically reexamined only when the agency has a desire to reverse prior decisions.

It shouldn’t come as a surprise that predictions made years ago about how technology, especially the Internet, may develop are not always on target. In some regards, it is unfair to ask personnel to act as a prognosticator in one of the the majority of dynamic and changing fields. To place it in perspective, even with all the best information in the world available today, how many people could accurately select the Super Dish winner for 2016? 2020? 2025? Take for instance the Commission’s wireless E911 location accuracy proceeding where predictions regarding the future availability of technology are used as support for implementing specifications on industry in a particular timeframe. We will see how our predictions cost this time, but we certainly have not had a good track record of predicting the availability plus penetration of such technology during the past. The ultimate value of predictive judgments and thus their use by the Commission can be questionable but that will have to await another day.

In the meantime, we need to address the acceptable life associated with any predictive judgment. The haphazard approach of making predictions, failing in order to timely review and then rejecting all of them as it suits the agency’s passions is inconsistent with the FCC’s continuous duty to engage in reasoned decision-making. Instead, whenever the FCC basics a decision on a predictive judgment, it will include a timeframe for revisiting the prediction. The exact duration will depend on the circumstances. However , it is not unreasonable to expect that the predictive judgment not be allowed to last for more than three to five years with out affirmative review. Predictions of advancements outside that time frame are really no more than guesses, and would raise severe questions about whether agency intervention is premature.

Interim Rules

The FCC also receives significant deference from the courts when it adopts “interim” rules. This can occur once the FCC is attempting to preserve the status quo or avoid a market disruption pending the completion of a broader rulemaking proceeding. While adopting an “interim” regulation can be a legitimate exercise associated with agency authority, we have also observed examples where it has been invoked in order to lock in a policy preference for an extensive period of time, free from significant legal challenge.

Of course , the deference afforded to the agency is not unlimited, and courts do grow impatient when an interim measure remains in essence for years. For example , a court overturned an FCC “interim” rule concerning access charges that had been in place for an astonishing 13 years. But celebrations should not have to wait years for your FCC to adopt final rules, or bear the cost of pursuing legal motion to force the FCC to act sooner.

In most cases, the FCC ties the interim rule to the completion of a specific rulemaking going forward, which gives the appearance that interim guidelines will not have an unlimited duration. But with out setting a specific timeline as a backstop, the Commission is under simply no pressure to act quickly. We have numerous interim rules on the books that have been pending finalization for years.

Therefore , any interim rule needs to be accompanied by a timeframe for completing the ultimate rules. Here, the presumption needs to be that an interim rule not last for more than 18 months. Even complicated rulemakings have been completed within a calendar year, so allotting 18 months would be over generous in most instances. And nothing stops the Commission from extending that time frame as it approaches expiration or setting a slightly longer 1 for particularly difficult situations.

The Commission’s new Procedure Review Task Force should include these practices to its listing due for scrutiny.

Worldwide Cooperation with Mexico for a Effective Incentive Auction

Friday, July 24th, 2015

Coordinating with Mexico and Canada to harmonize our TV plus wireless spectrum bands is a critical component of meeting the Commission’s objectives for the Incentive Auction. We are thrilled to be able to report some exciting progress on this front.

A week ago, the Mexican communications regulator, the Instituto Federal sobre Telecomunicaciones (IFT), confirmed through an exchange of technical dexterity letters with the FCC that our two agencies intend to follow common suggestions for repacking TV stations which will clear 600 MHz spectrum designed for mobile broadband use in both countries.

Last year, Mexico introduced its plan to relocate all of the television stations below channel 37, and this exchange of letters outlines the procedures by which we will interact to help advance the ongoing FCC and IFT spectrum reconfiguration process. They also describe the procedures by which the two agencies intend to help progress both Mexico’s analog-to-digital transition as well as the ongoing FCC and IFT range reconfiguration process.

That, these steps are another milestone on the road to a successful Incentive Auction. Many thanks to our alternatives at IFT for their hard work plus cooperate efforts to reach this point.

Task Force on FCC Process

Tuesday, July 21st, 2015

I recently provided an update on the ongoing activities through the FCC to tackle the process change recommendations from the Staff Working Group’s Report on FCC Process Change from early 2014. To complement these types of activities, a task force has recently already been formed that includes representatives from just about all five Commissioners’ offices at the FCC. The task force will consider ways to improve the effectiveness of the Commission’s inner processes from the Commissioners’ perspective, taking into account views expressed by internal and external stakeholders about the FCC’s internal processes plus protocols.

As part of this particular review, the task force will look for public input from those who regularly interact with the FCC, including customers, licensees, communications law practitioners, plus anyone with an interest in improving the FCC’s decision-making processes. The task force will also review the practices of other similarly situated agencies to compare their operations with those on the FCC.

Topics that will be reviewed and considered will include, but are not limited to: (a) the use of delegated authority, and practices for offering notice of matters being taken care of on delegated authority; (b) procedures for pre-vote circulation of Commission-level matters; (c) procedures associated with modifying Commission decisions; (d) practices in order to encourage efficient Commission decision-making, such as the Consent Agenda; (e) approaches pertaining to providing increased transparency of FCC procedures and protocols, and (f) practices to track, disclose and encourage prompt Commissioner votes on items on circulation.

Dealing with the Commissioners, the Congress, as well as the public, we believe we can create tangible improvements in our FCC procedures so that we better serve American consumers and businesses. The task force is focused on results – by means of recommendations and actions – that will improve our decision-making process. To assist us with identifying actionable recommendations, we invite comment on the subjects listed above, or any other topics related to this effort. Comments can be posted to this e mail address: ProcessReform2015@FCC. gov.

We appreciate your interest and assistance in helping the FCC to continue to evolve the means by which it delivers upon its mission.

Requisitioning the Opportunities of Unlicensed Spectrum and Wireless Microphones

Thursday, July 16th, 2015

From the outset of our function to implement the world’s 1st Incentive Auction, a central goal has been to maximize the amount of spectrum provided for not only licensed use, but additionally unlicensed use. Unlicensed spectrum has been powerful platform for driving innovation, investment, and economic growth. Innovations like Wi-Fi, which relies on unlicensed spectrum, have generated hundreds of vast amounts of dollars of value for our economic climate and consumers.

Last year, the Commission adopted an Incentive Public sale Report & Order that offers three channels for unlicensed use nationwide. While some have sought in order to define “nationwide” as synonymous as “uniform in every market, ” that is most likely a physical impossibility that ignores how broadcast participation can vary in every market. Today, I’m moving two items for consideration, alongside the other Incentive Auction items, on next month’s open meeting. The particular Part 15 Statement and Order may assure unlicensed spectrum is available in each market. The Cellular Microphones Comprehensive Report & Order will address the long run needs of wireless microphone users.

Our proposal might benefit consumers in the form of increased expenditure and innovation in unlicensed products and services. The proposal also helps those who depend on wireless microphones by altering functional parameters and expanding access to range.

The technical criteria we are proposing for unlicensed procedures would create certainty for unlicensed device users and manufacturers while reducing the risk of interference to licensed users. These items are important components of the suite of proposals that set up clear rules and protections just for unlicensed devices as well as licensed wifi microphone devices in the Incentive Public sale band as well as in other wireless rings where licensed wireless mics may gain additional access.

No party gets everything this wants in the proposed items. Once again, the Commission seeks to adopt the particular set of solutions that best satisfies the auction goals stipulated simply by Congress while accommodating most of the problems raised by all parties in order to ultimately deliver an efficient, effective plus timely auction in the public curiosity.

These proposals sign up for two other Incentive Auction-related items slated for consideration at following month’s open meeting: a General public Notice establishing the bidding procedures for the Incentive Auction and the Reconsideration of the Mobile Spectrum Holdings Order. These items were originally scheduled for our July meeting, but were rescheduled for August 6.

Moving forward on the Incentive Auction is a national priority for both economic growth and deficit reduction. I actually remain committed to achieving our goal of beginning the auction in the first quarter of 2016.

Upgrade on Process Reform at the FCC

Monday, July 13th, 2015

In early 2014, we embarked on an ambitious effort to improve how we do business at the Commission with the release of the Process Reform Report. The 154 recommendations within the report focused on improving the efficiency and effectiveness of how the company conducts business, handling items faster and more transparently (especially backlogged matters), improving our interactions with external stakeholders, and eliminating or efficiency outdated rules, procedures, and procedures.

FCC staff throughout the agency has been working hard on these recommendations over the last yr, and that work continues every day. You will find ten active working groups, as well as teams tackling backlogs, streamlining, IT upgrades and many other process reform objectives within the individual Bureaus and Offices. There’s much work left to be done, but we’ve made plenty of progress, and I’m very happy with the team effort. Here are just a few of the highlights of the notable achievements over the last year:

  • Improved Community interfaces
    • Revamped consumer help center, along with user-friendly web portal
    • Moved to electronic filing plus distribution of licenses for most issues (and plans en route to tackle the remainder)
    • Reworking FCC. Gov searchability and navigability (ongoing improvements)
    • Updating ECFS, the Electronic Remark Filing System (rolling out this Summer)
  • Increasing Swiftness of Disposal
    • Working group developed and distributed best practices for efficiency processing of matters within the Agencies and Offices
    • New Consent Agenda approach utilized to speed voting on items
    • Accelerated processing pertaining to appropriate Applications for Review
    • Electronic processing plus transmittal of Federal Register submissions
  • Backlog Reduction
    • Working group developed and distributed best practices pertaining to tackling backlogs
    • Every Bureau developed and is applying backlog reduction plans, including inventories of all pending items
    • Initial result was nearly a 50% reduction in items impending more than 6 months across the entire FCC over the last year.
    • Over 1500 dormant dockets closed
    • Individual Bureaus/Offices achieved significant backlog reductions. By way of example:
      • Enforcement Bureau closed over 7, 900 situations since April 2013
      • Wireless Telecom Bureau solved over 2, 000 applications older than 6 months
      • Mass media Bureau reduced its pending Apps for Review by over 50%
      • Public Safety & Homeland Security Bureau reduced its pending matters by over 50%
  • Promoting Efficient and Effective Internal Operations
    • IT improvements have enabled significant efficiencies:
      • Remote access is now available to over 80% of FCC staff, enabling more telework and other efficiencies
      • FOIA webpage revamped
      • New tracking capabilities being developed
      • FCC systems being modernized and shifted to the cloud
    • Paper copies virtually eliminated for internal distribution
    • New inter-bureau coordination recommendations developed and distributed
    • Working groups developed guidelines memos on conducting meetings and taking advantage of email more efficiently
    • All Bureaus & Offices are already streamlining internal review processes to improve efficiency
  • Additional Principle and Process Changes to Promote Efficient Regulation in Bureaus/Offices
    • E-filing of closed captioning requests
    • Virtual elimination of tolling agreements for enforcement matters subject to the statutory deadline, saving both external and internal stakeholders significant sources
    • Satellite Part 25 rule comprehensive streamlining going forward launched
    • Nearly 1000 license media license renewals granted in fourth quarter 2014
    • Improved personnel training and communications enabling efficient application review processes, resulting in a two-week reduction in time for processing public safety applications
    • Antenna Part 17 streamlining Order, expedited processing of cellular permit applications and new electronic submitting and distribution instituted
    • New procedures implemented pertaining to processing of USAC appeals
    • Improvements in e-labeling, equipment certification and telecom qualification body programs
  • This is good progress, but there’s much more to be done – internal process reform initiatives will continue over the months to come. All of us plan to deploy new IT monitoring and collaboration tool capability, more electronic filing and automated procedures, and adopt many more proposals that would eliminate or streamline outdated guidelines.

    These are just a few of the numerous accomplishments – in every area, we now have made tremendous progress. It could not need been possible without the hard work plus dedication of staff throughout the FCC, and the many suggestions and helpful feedback from external stakeholders. I actually look forward to working with you all to realize even more of the tangible benefits moving from process reform initiatives throughout 2015.

Environment Timelines for Revisiting Agency Decisions

Friday, July 10th, 2015

All too often, the FCC imposes rules, placing brand new burdens on companies and impacting the marketplace, without any plan to revisit whether or not those rules remain necessary or relevant in the future. These decisions, and their attendant costs, can stick around for years on autopilot while the FCC turns its attention to other policy issues. One obvious example is the newspaper/broadcast cross-ownership rule, a true anachronism enacted in 1975, but with each year that goes by many other Commission rules that may have been great ideas at the time go further toward irrelevancy, or worse, become affirmative barriers to development. Quite frankly, in the age of hyper-speed “Internet years, ” the Commission’s approach to some issues is stuck in the age of rabbit ears, and this issue is expanding exponentially right along with our own rules.

While the FCC has statutory commitments to periodically review certain aspects of its rules, such as section eleven of the Communications Act, these specifications are generally given short shrift, when they are adhered to all. This is certainly a place where the agency needs to make substantial improvement, but that doesn’t seem to be in the cards anytime soon.

More broadly, the FCC needs to adopt procedures in order to proactively reexamine its rules and policies across its many process. In particular, I have consistently pushed to add sunset provisions to agency orders. Let’s face it: nothing produces an honest assessment of a rule or program like its pending expiration. And the length of any particular supply may depend on a number of factors, including the state of the market, how comprehensive the rules are, and the resources needed to update the regulations. In most cases, nevertheless , I expect that an evaluation associated with rules adopted in this fast transforming sector should occur within five years. If it is not worth the cost to review the rules within five many years, then I seriously question the benefit of keeping them or enacting them in the first place.

The requests for sunset provisions are usually met with opposition, but generally for that wrong reason. Specifically, these demands are often viewed as a sign that I are fundamentally opposed to the Commission’s rules or programs at issue and am deviously attempting to undermine all of them. Instead my goal is simply to ensure that the agency has a strong incentive to engage in a meaningful review and create an affirmative decision as to whether or not the rules should be retained as is, maintained but modified, or eliminated. In some cases, I may even be more receptive in order to proposed rules based on current market realities if a timely appraisal has been guaranteed. But , I am increasingly hesitant to impose regulations that could remain on the books indefinitely when circumstances and technology will inevitably change significantly in the future. No regulation is perfect, and we do not have a crystal ball. It is a matter of regulatory humility.

For instance, in one Notice involving a program required simply by statute, I sought to add the proposal to sunset the rules after two cycles of the program—a full ten years later. The response was that it would be inconsistent with the statute. Yet I wasn’t proposing that the program be discontinued; rather, I was suggesting that this iteration of the program should be reviewed to determine effectiveness and whether or not a different version should be used in following cycles. And since these rules would impact not only service providers and program recipients, but also ratepayers financing the program, it seemed all the more necessary to propose a means to ensure continued great stewardship of consumer dollars. Moreover, proposing a ten-year sunset date seemed more than generous. Yet most of the FCC was unwilling to incorporate such a concept.

Another response I generally hear is that stakeholders are able to file petitions for rulemaking to reexamine past decisions. But this is a specious solution: the agency is below no obligation to consider such request and, even if it launches the proceeding, the FCC has no deadline day to complete it. Maybe pending laws in Congress can rectify this particular, but placing the burden on events to file petitions and advocate designed for consideration also adds to the costs these people already incur to comply with the rules. Instead of waiting until the rules are outdated enough that it is worth the cost for a party to file, the agency should take the lead and proactively review its rules.

The FCC relates to some of the most cutting edge issues and technologies. It also has a full docket. That is a recipe for precipitating, one small drop at a time, a swelling tidal wave of outdated rules and burdens. Perhaps if the agency made routine use of sunset provisions, these requests would not be viewed as votes of no confidence but rather as good government measures designed to ensure that our own rules continue to serve their designed purposes, to the benefit of all.

Improving Technology Transitions by Protecting Consumers, Competitors and Public Safety in an IP-World

Friday, July 10th, 2015

The transition to efficient, modern communications networks is bringing new and revolutionary services to consumers and companies. The Commission’s approach to these technology transitions is simple: the shift to next-generation fiber and IP-based networks from analog switch- and copper-based networks is good and should be urged. But advances in technology can never justify abandonment of the core values that define the relationship between Americans and the networks they use to communicate.

After an open, rigorous process, I will be circulating to my fellow Commissioners an item that would update the FCC’s rules to help deliver the guarantee of dynamic new networks, offer clear rules of the road intended for network operators, and preserve the core values, including protecting consumers plus promoting competition and public safety.

Public safety, specifically, offers a vivid example of how technology transitions are concurrently creating each new opportunities and new difficulties. IP-based networks enable 911 call centers to receive a greater range of details – such as text and movie – so they can better support first responders in an emergency. However , IP-based home voice services are more susceptible to outages during emergencies than their own copper predecessors. While traditional, copper-based landline home phone service typically functions during electric outages because they bring their own power, IP-based substitutes usually require an independent source of power. This implies they need backup power to keep operating.

Consumers shouldn’t need to accept decreased phone service reliability like a price of progress; they should have details and tools necessary to maintain obtainable communications during emergencies. That’s precisely why our new proposed rules might require providers of IP-based phone services to offer consumers the option to purchase backup power. And I would tension the word option. It would be up to consumers to make the best choice for themselves. But to ensure that consumers understand their choices, providers would be required to inform customers about service limitations from electrical power outages and how to minimize those risks through backup power.

Empowering consumers with information is a central theme of our new suggested rules. Although these new networks have brought new choices for consumers, millions of American homes and companies continue to choose traditional, reliable water piping networks for voice communications. We all propose requiring that consumers become notified before the copper networks that serve their homes and companies are retired. This increased transparency can help ensure that new types of services satisfy the needs of consumers before legacy providers are removed.

Traditional copper network infrastructure has also been the mainstay of competitive service bought wholesale from the incumbent telcos simply by competitive providers and retailed to businesses, schools, health-care facilities, and other small- and medium-sized institutions. The competitive providers that buy this kind of capacityserve hundreds of thousands of businesses and other non-residential enterprises at competitive prices, often offering customized services certainly not offered by larger incumbents. Yet aggressive carriers and the customers that depend on them face uncertainty if the incumbent companies no longer provide the kinds of wholesale services that are key to this competitionmerely because of a change in the technology they use to deliver the service.

To address this, the item would need that replacement services be provided to competitive providers at rates, conditions and terms that are reasonably comparable to those of the legacy networks. This would be an temporary solution pending the completion of the broader wholesale access proceeding. Bottom line: there has been competition for wholesale providers before the technology transitions, and there will be competition in this market after these types of transitions.

Again, we would like to facilitate the transition to IP networks, which is why, consistent with longstanding policy, the proposed rules would NOT need FCC approval before carriers stop working copper networks, as long as no assistance is discontinued, reduced or impaired.

However , if a assistance is discontinued, reduced or impaired, Congress has mandated in section 214 of the Communications Act that FCC approval is required. Just as we would like to arm consumers with information, we all believe in providing greater clarity intended for providers, and the fact is that the Commission payment has not codified the criteria used to evaluate and compare replacement and heritage services. In a Further Notice of Proposed Rulemaking, we propose fixing this problem by clarifying the specifications we would use as part of our evaluation, and we seek more focused comment on the particular criteria to be used.

The Commission is committed to seizing the opportunities of the technology transitions plus unleashing new waves of advancement and consumer benefits. These obvious rules of the road will give companies the certainty they need to invest, while protecting consumers, competition and public safety in this time of change.