Time Flies: Does That Mean We Are Having Fun?
Liz Sachs - Partner, Lucas Nace Gutierrez & Sachs and Regulatory Counsel, EWA
One problem with FCC rules is that it takes an awfully long time to get them adopted, and then just as long or sometimes even longer to get them changed. The very nature of the regulatory process dictates several rounds of public comment followed by multiple levels of agency review before any rule can be implemented. Getting even the most mundane, uncontroversial change through in less than a year or two is an achievement worthy of celebration.
The unhurried nature of this process probably wasn’t as significant years ago when the pace of life was more leisurely. People sent documents by U.S. mail (remember that) and assumed they would take days to arrive, weeks to be reviewed, and weeks or longer before a response would be provided. Technology also evolved more slowly back then. Engineers tinkered endlessly with products trying to achieve some sort of technical nirvana. Once developed, it was assumed that these devices would have many years of shelf life before the cycle would be repeated and new models would be introduced to replace them.
Today is a whole, brave new world. The pace started to pick up as we began exchanging materials by fax or overnight delivery services. Now that most documents are transmitted electronically, an instantaneous review and response is expected. The life cycle of matters continues to be compressed into smaller and smaller time increments. Issues that used to percolate for months now emerge, are vetted, debated and then resolved, all within a matter of days.
Equipment cycles have become similarly accelerated. Products that might have enjoyed a multi-year period of dominance, or at least acceptability, now are reclassified as “legacy” seemingly within nanoseconds of their introduction. Technology improvements are fast and furious. There is a never-ceasing R&D process and a seemingly endless stream of new and improved devices that enter the marketplace before the public has time to learn how to use, much less tire of, the ones they are intended to replace.
Whether or not this represents an improvement in our lives depends on one’s perspective. There is no question, however, that it complicates the FCC’s rule making process, at least as it relates to the band plans and technical specifications the Commission adopts for particular parts of the spectrum.
It used to be the norm for the FCC to develop intricate, highly specific technical regulations for each spectrum allocation, rules that were designed with a particular spectrum use in mind. Frequencies designated for one-way paging typically were permitted higher power than those intended for two-may mobile use. Channels available for trunked operation had different regulatory obligations than those used for single channel conventional usage. It also was relatively common for the Commission to adopt elaborate band plans within broader allocations based on the divinations of industry and the agency about how the channels might be (or should be) used both immediately and into the future. To some extent, those plans were self-fulfilling prophecies. If the rules were designed to accommodate a particular type of system or usage, applicants would have little choice but to select equipment consistent with those regulations. They might have made the same choices in an environment of minimal technical regulation, but that will never be known.
That “command and control” approach to regulation may have been workable when technology changes were gracefully evolutionary. Manufacturers and users could anticipate what rule changes would be needed to facilitate deployment of next generation equipment and work with the Commission to implement the necessary modifications within the time frame needed to effect regulatory modifications.
But that was when “next generations” appeared every half-decade or so. We now live with revolutionary, not evolutionary, change. The life cycle of much equipment has been shortened to two years or even less. That is barely enough time for the Commission to resolve a contested application, much less make substantive changes in its rules pursuant to the requisite notice and comment rule making proceeding.
The implications of this widening gap between accelerating technological advances and an inflexible regulatory process are highlighted in the current state of the 24 MHz of 700 MHz spectrum allocated for public safety use. The rules for this band began to be developed almost ten years ago, before wireless services, particularly the non-CMRS services, had embraced broadband operations. The result is a traditional, striated approach to spectrum allocations with individual, narrow bandwidths designated for specialized purposes. Actually, these rules arguably are more forward-looking than some. They provide for at least a small number of “wideband” channels and the ability to amalgamate them to create even bigger “wideband” channels under certain circumstances.
Now, in the Eighth Notice of Proposed Rulemaking, both the public safety and manufacturing communities are attempting to undo some of the hyper-regulation they previously had requested for this spectrum. They have seen the light in the form of IP-based broadband technology that can handle virtually any type of transmission public safety might need. The narrowband voice allocations that appeared to be the height of spectrum efficiency already are being viewed as outdated and far from the optimal way of maximizing efficient use of this band. And attempting to maintain them while deploying broadband in the same allocation dictates a need for even more guardband spectrum, thereby diluting whatever efficiencies will be gained.
Given the requirements of the Administrative Procedures Act that governs the process by which the FCC is permitted to modify its rules, it is obvious that technological changes will continue to move at a faster pace than any rule making proceeding. If this industry wants to have the option of deploying state-of-the-art equipment, it will need to move away from “command-and-control” allocation schemes and embrace more flexible regulations that permit rather than prescribe what technologies may be implemented.
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