Being chairman of the Federal Communications Commission under President Ronald Reagan was always challenging – much like standing in front of a tennis ball machine every day. Perks? See above. But we Reaganites had a mandate: get rid of smothering regulations, rely on marketplace forces, get government out of content control and open markets to new players and technologies.
In 1934, Congress created the FCC to license and regulate all wireless systems operating in the private sector and the states, delegating to it the authority to allocate spectrum for defined uses and to decide the complex technical issues which would arise. The executive branch was given like authority over federal government uses. A core principle of that seminal law is that radio spectrum is a national resource — not a government one. Conceptually it is held in a national escrow account. Spectrum should only be removed from escrow when a compelling public need, private or government, is demonstrated.
Like a fine old wooden antique slathered with layers of paint that hide the original beauty, parts of the federal bureaucracy have gradually ignored this spectrum trust account and the requirements which justify spectrum release. As a result, spectrum not allocated to the private sector is by magic regarded as “government spectrum,” not the nation’s. Increasingly, proposed private sector uses have met irrational, and even underhanded opposition by some in the executive branch – especially the Department of Defense.
Traditionally, losing parties would appeal FCC spectrum decisions to the courts. But beginning about the time President Reagan took office, they began running to Congress, lobbying select members to attempt reversals of agency decisions.
In April, after a four-year proceeding, a voluminous record and multiple engineering studies by world-class electrical engineers, the FCC’s bipartisan five members unanimously approved the application of a Virginia satellite company, Ligado, to use its wireless spectrum for a new 5G network.
But the Pentagon and the GPS industry vociferously opposed the FCC’s decision. They alleged that Ligado’s base stations would cause harmful interference to GPS, which operates on government spectrum. The massive lobbying effort with Congress said the GPS sky was falling; industries and lives were at risk. The FCC and Ligado had to be stopped.
No credible engineering studies and measurements were produced to support their charge, despite two separate requests by the FCC to do so. Instead, lobbyists planted a flurry of hit pieces on FCC Chairman Ajit Pai and Attorney General Bill Barr, who supported the FCC, as did Secretary of State Mike Pompeo. They lobbied members of Congress with bare interference allegations unsupported by interference measurements.
But here are the facts: GPS and Ligado spectrum bands are separated by a whopping 23 megahertz. This is analogous to FM Station A licensed at 89.5 megahertz alleging interference from proposed FM Station B, (Ligado), operating far away at 106.5 megahertz. Except here the frequency separation is greater at 23 megahertz. Further, Ligado transmitters are limited to the low power of 10 watts – roughly the radiated power of a bathroom night light! Ligado is required to notify the Defense Department and the GPS industry in advance with details, for each new site added. If any interference is alleged, the FCC requires Ligado to kill the site immediately. Ligado’s confidence of no interference is best demonstrated by the massive financial investment Ligado is making, in spite of these “shutdown” conditions.
Yet in light of the facts and a unanimous FCC decision, the campaign of the Pentagon and the GPS industry continues. The good news is there is no harmful interference; the bad news for the Defense Department and GPS lobbyists is — they cannot “BS” an electron.
Defense lobbyists have now inserted language into the annual defense bill that among other things forbids Pentagon contract awards to Ligado or any company who uses Ligado. This soft corruption violates all limits of restraint in the U.S. Constitution. These punitive provisions should be seen for what they are: bullying by Defense Department lobbyists, who view U.S. spectrum as “theirs.”
In finalizing the defense bill, members of Congress need to look into the facts of the Ligado interference issue, talk to the engineering experts outside of the Pentagon and delete the legislative poison pill. They will find that there is no interference issue, and that this spectrum can now be put to use for the American people and in support of President Donald Trump’s goal of speeding 5G development. The Defense Department telling the FCC how to deploy spectrum is a bit like the FCC telling the Defense Department how to deploy troops.
Spectrum is a national resource that belongs to the people — not the Pentagon. Congress should join Chairman Pai and the other FCC commissioners to carefully monitor the buildout of Ligado to ensure it doesn’t cause GPS interference; it won’t. And the Pentagon should either put down its lobbyists’ hand grenades or President Trump should disarm them.
Mark Fowler served as chairman of the FCC from 1981 to 1987.
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