NPSTC Questions Proposal That FCC ALJs Play Bigger Role in Resolving Spectrum Disputes
The National Public Safety Telecommunications Council objected to a proposal that some interference disputes be resolved by the FCC Office of Administrative Law Judges. “NPSTC does not view the process proposed in this petition to be of any significant benefit in resolving interference to public safety or possibly to other categories of licensees as well,” said NPSTC, which represents numerous public safety entities. AT&T said the Enforcement Bureau is the more appropriate entity for resolving spectrum disputes. Other commenters also questioned the viability of the proposal.
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In May, the Samuelson-Glushko Technology Law & Policy Clinic at the University of Colorado Law School and Pierre de Vries, a University of Washington research fellow, petitioned the FCC (see 1505110031) to launch a rulemaking aimed at developing a “fact-based, transparent, and timely adjudication process for spectrum interference disputes.” The FCC sought comment last month, creating proceeding RM-11750.
The proposal “seems to ignore the fact that actually resolving interference is largely a technical matter,” NPSTC said. “If pursued, the proposal to implement an Administrative Law Judge process would do nothing to increase the technical resources available but could cause parties to incur unnecessary legal costs. It is not clear how the proposed process would necessarily be any more fact-based, transparent and timely than current options for interference resolution.”
Enforcement Bureau field offices offer “the first and best opportunity for resolving spectrum interference complaints, by Agents with hands-on practical experience that cannot be replicated by an ALJ,” AT&T said. “The Commission can make sure that the interference dispute resolution process remains fact-based, transparent, and timely by standardizing that process for all Field Offices, adopting a format and timelines for confirming receipt of a complaint and communicating key information with all parties to the dispute, and periodically analyzing the data generated from these complaints to ensure the appropriate allocation of resources.”
Lockheed Martin questioned how useful the reliance on ALJs will prove. “The most serious threats of harmful interference have been, and continue to be, addressed at the level of proposals for spectrum allocations/reallocations and overall service rules,” the company said. “The questions of whether a new type of spectrum use can be accommodated, and under what terms, are the questions that the Commission -- led by its Office of Engineering and Technology -- have to face and resolve to assure that harmful interference is avoided on both an inter-service and intra-service basis.”
Collaboration should be the first resort for addressing conflicts over spectrum, though in some cases it may become clear “there is no agreement on the cause or the degree of harm, or perhaps even on the law,” the Telecommunications Industry Association said. “In such an event, a finder of fact might be useful, or could provide a quicker means to reconcile the parties’ different views of the law than the Commission’s formal complaint process.” The filing proposing the greater use of ALJs “appears to focus on the relatively small number of cases where two licensees may have an unresolvable disagreement regarding the ‘boundaries’ of their respective licenses,” TIA observed.
The Satellite Industry Association agreed that collaboration is critical and questioned how helpful it would be to put more reliance on ALJs. A search of FCC decisions on spectrum fights involving satellite operators “reveals only one Enforcement Bureau decision, confirming the experience of SIA members that the current interference resolution process is effective and that no additional measures are needed,” SIA said. “The proposed additional measures are unproven, and would impose significant costs and resource burdens on Commission personnel and licensees, far outweighing any possible benefits.”
The Enterprise Wireless Alliance said that in light of an internal commission proposal to shut down some field offices (see 1506090059), the FCC needs to look at other alternatives for handling disputes. “While the Alliance is not certain that the ALJ Office is the optimal locus for that activity, which tends to be heavily dependent on evaluating competing technical claims rather than assessing legal rights, it nonetheless encourages the Commission to develop a record based on the proposal in the Petition, as well as alternatives that the FCC itself or other parties might consider even better suited to the task,” EWA said.