The waiting game
It’s that time of year when we are all thinking of spring. It isn’t here yet, but we’re thinking about it, nevertheless. Green leaves, budding flowers-a time of hope. If you’re like me, you have already started thinking about the IWCE show April 28-30 in Las Vegas. I think about the show because it seems to kick off the warm season for me-the growing season. What I’m growing is impatient. Is it just me, or do you feel as though you’ve been placed “on hold” by the FCC? “All our lines are busy. Please stay on hold for our next-available political agenda. Your petition is important to us….” This of course is followed by a Muzak arrangement of Tony Orlando singing the refarming order song, “Tie a long red tape around the F-C-C….”
A few months back, a member of my office got a letter from the FCC that began “In response to your letter of April 4, 1990….” Huh? He was amused and mystified by this correspondence regarding a “dead-letter petition” that has obviously been entangled in a sorting machine at the agency for eight years. This would be far more amusing if it were an anomaly.
The truth is that the agency is sitting on a stack of pending petitions, mutually exclusive applications and complaints-a plethora of work that could keep a team of dedicated government workers cashing COLA raises for the next five years. The Wireless Telecommunications Bureau alone faces an estimated 50,000 pending matters, rotting into mulch beneath and around bureaucratic desks. Why?
Do I gotta? With few exceptions, the FCC has no set time period for responding to a petition or to an application. “So, if you file something on Thursday, it may not get a response until the following Monday?” you ask. Ha-ha! That’s a good one! What I mean is that if you had filed it during the Roosevelt administration, it might not get a response until Saddam Hussein gets his Nobel Peace Prize.
Now, we could pound the table and grouse about the fact that only government has no deadlines, while the rest of the world owns a watch, but that isn’t going to change. (Not as long as the government can manipulate its performance numbers by pointing to its claimed efficiency in processing routine work, while covering up its abysmal record on the harder stuff.)
The agency’s penchant for procrastination has always caused me, as an attorney (you can tell by my scales), problems. Clients are forever calling and asking “What ever happened to …?” We explain that after a petition has been filed, the FCC moves at the same pace as continental drift, and there is little (short of changing your company name to “AT&T”) that will get the darn thing off center. Then the client ends the conversation with “Well, see what you can do about it.”
The fact is, unless you are willing to be the pest-from-hell (and not always even then), the FCC is going to use its manpower in the way that it deems proper for its needs. What the agency deems appropriate is furthering pet projects, such as auctions, universal licensing systems and HDTV. What the agency doesn’t deem as important are the problems of mere licensees.
So, even if well-meaning desk workers and branch chiefs understand the desire for resolution of your particular matter, their time is used up forwarding some grand vision of a handful of politically appointed folks who wouldn’t know a yagi from yogurt. And the law lets this happen because there is no remedy for those of us left waiting for years to get a response to a petition. The truth is, they don’t gotta do nothin’.
When it gets ugly The situation goes from farce to tragedy when the agency fails to act on pending matters that directly affect the ability of businesses to plan, grow and survive. One paging company in Southern California was left in limbo for five years, awaiting the FCC’s decision that its 900MHz paging applications were eligible for grant. This small business had already begun building out a system. Then the FCC froze the processing of competing 900MHZ paging licenses-for years-while the industry waited for the agency to sort out its little application snafu. The company nearly failed while waiting.
Perhaps the worst example is the collection of matters pending about SMR licenses. Off the top of my head, I know that the agency has petitions filed before it that challenge the licensing of more than 30,000 channels across the nation. Although finder’s preference matters are no longer accepted, existing ones are still pending. Petitions that have sat around without action for more than five years are occupying some pigeonhole in Gettysburg, PA. Having prepared some of these petitions, I can tell you that if and when the agency gets around to deciding these matters, the status of SMR licensing will change.
For example, the agency has a series of petitions filed by more than a half-dozen operators in California that challenge a 175-channel ESMR footprint across the state. These petitions were filed in 1994 and clearly show that the applicant failed to take into account existing licensees when the applications were filed. Maybe the fact that the applications lacked any engineering exhibits is a clue as to how the problem arose.
What isn’t so clear is why the FCC hasn’t acted on the petitions, dismissed the applications and bombed any later application that relied on the original, bogus ESMR filing. Instead, the FCC tried to supply its own engineering to fix the problem, which begs the question, “Since when does the agency supply free engineering services to applicants?” The matter is still pending before the FCC. Since those petitions were filed, the FCC has pushed through a rulemaking on geographic licensing of SMR systems, held an auction, gone to court over its methods and issued wide-area licenses to auction winners. So why didn’t it pause long enough to clean up its licensing, including this pending matter, prior to going to auction?
Stuthio camelus gubernmentum The FCC has long had the character of an ostrich. When the going gets tough, it buries its head in the sand. There are no tough choices, only those that are out-of-sight above ground level. Because, if you pull your head out, you might discover that you’re the problem.
One matter before the agency is a long-standing dispute between a couple of common carriers. The first one complained to the FCC that it was receiving harmful interference. The second one noted that the only reason carrier number one was getting interference was because it was operating its station illegally. The FCC lawyer in charge of this one called both parties and asked them to settle the matter. Problem: How do private parties “settle” a violation of the FCC rules? It’s like asking the victim to “settle” with the mugger. The settlement didn’t occur, so the matter has been left pending for more than five years.
The FCC files are filled with these kinds of problems. As the agency auctions off spectrum, these problems are magnified. One takes no comfort in the agency’s “buyer beware” admonition to bidders, referring to the hidden sea of problems that can greatly affect the value of spectrum. Nor is the agency doing anything about auction participants who leverage bad licenses to gain an advantage in auctions, knowing that the records make the spectrum appear more encumbered than it truly is.
What can we do? Because this problem is as pervasive as sore throats at a hog-calling contest, here’s what I want us to do about it. I want you to bring to the IWCE show a copy of every petition, application, motion and complaint that you’ve got that has been pending before the FCC for more than two years. Please make sure of the following:
o First, the matter still has to be “alive” before the FCC, awaiting some darn decision to move it along.
o Second, the documents have to be dated before 1997.
o Third, bring copies. Don’t give up your originals because you aren’t getting them back.
Drop off all your “entries” at the MRT [Intertec Publishing] booth on the exhibition floor. The person who brings the oldest outstanding matter will receive a prize (to be announced after MRT figures out what it can afford to give the poor sucker). All entrants will have the copies of their matter placed before Congress with a request, to be prepared by yours truly, asking that the Senate Commerce Committee direct the FCC to forward the matters to resolution. The oldest, most interesting or just plain bizarre case will be featured in a future column. My clients are eligible, but in the spirit of fair play, I won’t help them remember their stuff (particularly because I can’t remember what I wrote two weeks ago).
So, dust off your files, and get that old application that was prepared by Mark Fowler before he became chairman. Grab that pleading that’s addressed to Private Radio Bureau Chief McKinney. Take a walk down memory lane with the likes of FCC officials Robert Foosner, Morgan O’Brien and Robert McNamara before there was a Nextel. Unearth that old complaint addressed to the Field Operations Bureau at one of its closed regional offices. See why your father passed on to you a yellowing stack of FCC forms 10 years ago, saying, “They’re all we’ve saved. All we have left.”
If we can’t get service, together, maybe we can make a point.
