Paved with good intentions
The FCC and the Industrial Telecommunications Association (ITA) announced a new era of cooperation in April for the resolution of interference complaints, whereby ITA will stand as the first line of defense in resolving problems between private oper-ators. The Memoran-dum of Understanding (MoU) released by the FCC claimed that the benefits will be a dramatic streamlining of the FCC’s compli-ance and enforcement process. An intelligent person responding to the agency’s descrip-tion might easily ask, “What enforcement process?”
That harsh, albeit obvious, question a-side, I congratulate ITA for its guts. Resolving interference complaints has always been prob-lematic, particularly be-tween cochannel users of shared spectrum. Yet, ITA has boldly stepped forward and volunteered to fill a vacuum that is so large, the sucking sound it creates can be heard at each of the FCC’s monitoring stations. The FCC’s enforce-ment record is so poor that an operator could solve an interference problem faster with a nail file applied slowly to a guy wire than with a complaint to a government official.
ITA’s civic-minded action must, therefore, be viewed in the total context of the FCC’s past record and present politics. If ITA is to be effective in its efforts, it must have a chance to succeed. But will it? If I have my doubts, my suspicions are not laid at ITA’s feet, but before the throne of deregulation upon which rests the FCC.
To be successful, ITA must have the FCC’s support. ITA does not have enforcement authority and cannot force operators to recognize its findings or abide by its recommendations. In this, ITA is akin to a neighborhood watch group, with bright orange vests, walkie-talkies and jawboning tactics, ready to alert the cops when it spots a truly dangerous situation. But if the cops don’t show when called, the neighborhood watch group is pretty helpless. My experience shows that the FCC cops are permanently parked at the doughnut shop. No good deed…
An operator in Pennsylvania was suspected of having created intentional harmful interference to no less than three cochannel operators, four local police forces, two hospitals and anyone else that dared use his PCP channels. After delaying an investigation for months, the FCC field office monitored the frequencies and decided that the errant operator might be causing a problem. The FCC sent the operator an official inquiry, asking him if he was causing a problem. He said he wasn’t. Case closed.
But the complaints continued, so the FCC set up a monitoring program, employing the shop of one of the complaining cochannel operators. Seventeen videotapes were produced to record the interfering signals as they appeared on a spectrum analyzer. Decoding and recording devices produced reams of evidence showing that single cap codes were receiving thousands of pages per month from the illegal system and that the information sent was duplicative.
An investigation by the Personal Com-munications Industry Association recom-mended that the interfering operator abandon the channel. The FCC sent an investigator to some of the interfering operator’s sites to examine his trans-mission equipment. A meeting was called in Washington before the Field Operations Bureau (now the Compliance and In-formation Bureau). The FCC’s investigation showed that the operator was not complying with the terms of his license and was improperly passing traffic be-tween RCC and PCP facilities.
In an amazing act of spectrum manage-ment, the FCC issued a Notice of Apparent Liability, demanding a forfeiture of $16,000 from the bad actor. The bad operator promptly filed a request for a consent decree which, in effect, said that he might have done some inadvertent acts that may have caused interference. But accidents happen, and the agency should reduce the fine to zero, while proclaiming that it was all an unfortunate misunderstanding. That request is still pending after three years.
The above example is quite rare-the FCC actually did something. Oh sure, the interfering operator was able to delay any action for months, and never paid a fine, and the agency has not lifted a finger to enforce its NAL, but that’s quibbling. Then there’s “the rest of the story.”
The legitimate operator whose business suffered tremendously due to the bad operator’s harmful interference sued the bad operator for business losses. After going up through the appellate courts, the injured operator was totally rebuffed by the courts’ decisions because of the FCC’s failure to resolve the consent decree request. The courts deemed it an open question subject to the agency’s exclusive jurisdiction regarding radio transmissions. The injured operator requested an opinion from the FCC that it did not mind if he sued for damages in local court, but the FCC never responded to the operator’s request.
The injured operator spent thousands on legal fees, personnel time, lost business and a host of other costs. The bad operator spent thousands on legal fees, but came away without a fine and free from civil liability. The FCC got to publish a decision that showed that it was tough on interfering operators. Oh yes, the hospitals got to buy new equipment to avoid future interference and the police forces switched carriers to use one of the systems operated by the bad operator because those systems were more interference-free. In essence, the cops paid for the bad actor’s legal fees.
Politicians with a badge
ITA’s noble enforcement gesture is laudable, but I fear it’s a bit naive. The FCC simply does not wish to enforce its rules. It’s messy and expensive, and it’s political dynamite. What if the company that’s being charged has political pull? What if the results of an enforcement study point up that a particular type of operation simply cannot peacefully coexist in the marketplace? Or what if an investigation shows just how inept the FCC is in this area? Will the agency take decisive action?
The FCC records are overflowing with untouched complaints and evidence of operators whose businesses failed due to agency inaction in interference, forgery, perjury, strike applications, abuse of process, slamming, jamming, pirating, cloning and every form of electronic-administrative destruction imaginable. When the problem gets too pervasive, the agency does little, if anything, about individual complaints. Instead, it merely rewrites the rules to accommodate the problem.
One recent example is the FCC’s forbearance of its equipment authorization rules for personal computer manufacturers. The devices did not comply with the radiation rules when tested. So, the FCC stopped testing and allowed the manufacturers to “pinky swear” that their devices complied. Good enough.
Another example is the FCC’s upping the number of telephone lines that have to be out of service before the local exchange carrier is deemed to have had a failure significant enough to be subject to reporting requirements. Get that reporting requirement number high enough and the agency can proudly claim that
“There have been no reported failures.”
ITA’s efforts will be used by the FCC to prove to Congress that the agency is still in the spectrum management business . that it cares. It will co-opt ITA’s valiant efforts and claim ownership over the successes of the program, while leaving ITA to sort out the failures. The FCC-ITA enforcement program will result in a political partnership, the likes of which haven’t been seen since McGovern backed Eagleton “1,000%.”
The situation wouldn’t be so tragic if the livelihoods of so many operators were not at stake. But I fear what ITA is doing, by volunteering for this unenviable task, is becoming an enabler, allowing the FCC to affect a stern mask of enforcement, while beneath the mask, it sports a bored grin.