A brief, sad study in how the FCC reads Comments
Fred Goldstein, November 2003
...In this Order, though, I was a bit surprised at how my comments were addressed. Somebody named Goldstein had, apparently, made some sloppy or ridiculous suggestions! ...
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...The ILEC would be offered this bandwidth for free, in exchange for phasing down its future high-cost support. So it would save a lot of money...
...Yep, it sounds like quite the wacko to suggest three slightly-different block sizes, all unpaired. Someone reading the Order would not get a very accurate impression of what my Comment said there, either....
...the Wireless Telecommunications Bureau is not the least bit interested in helping the Wireline Competition Bureau save a few billion of the ratepayers' dollars a year. The FCC's Bureaus act like separate fiefdoms...
I've been filing formal comments with the FCC since, oh, the mid-1970s. To be sure, my early ones didn't cover the same material that Ionary clients are primarily concerned with. I've been a licensed Amateur Radio operator for well over three decades now, and my early comments were concerned with Amateur licensing, especially the contentious issue of Morse Code requirements (which are on the docket again this year). In those days, comments were submitted on paper, separate copies for each Commissioner, with strict page formatting requirements. More recently, it has become easier to comment, thanks to the Electronic Comment Filing System (ECFS).
Some months ago, I filed comments in WT Docket 02-353, concerning licensing in the new "Advanced Wireless Service" (AWS) spectrum at 1710-1755 and 2110-2155 MHz. The FCC has finally acted on this docket, producing new rules for what is likely to become "3G" wireless spectrum.
In reading the FCC's Report and Order, I was to some extent heartened to see my name mentioned and my comments addressed. But more interesting was the way in which my comments were handled. I expect, from experience, to be on the losing side of many of the issues covered by the FCC's proceedings. (I was pleasantly surprised by how close their LPFM rules came to my suggestions, but Congress overrode those under pressure from the established broadcast oligopoly.) In this Order, though, I was a bit surprised at just how my comments were addressed. In several places, it implies that somebody named Goldstein had made some sloppy or ridiculous suggestions! Certainly the comments that were so curtly dismissed were not worthy of serious consideration. I just wondered, though, where those comments came from, because the Commission was not addressing the ones that I had submitted, but was instead rather blatantly misconstruing them.
The gist of my proposal was that the FCC should carve out a 10-to-13 MHz wide allocation to be used for wireless local loop, for use at no charge (i.e., not assigned by auction) in rural areas where the Incumbent Local Exchange Carrier is currently eligible for high-cost support subsidies. I called this AERTS. The ILEC would be offered this bandwidth for free, in exchange for phasing down its future high-cost support. So it would save a lot of money -- many rural LECs get most of their revenues from subsidy pools (both explicit, as universal service funding, and implicit via the access charge mechanism), not their own subscribers. I also suggested that these allocations could be carved out of larger auctioned spectrum blocks, since mobile licensees generally need more spectrum in urban than rural areas. (Does anyone expect Sprint PCS to use all 30 MHz of its spectrum in sparsely-populated areas?) This would in effect be "free", in terms of auction impact, because the value of the larger auctioned block would not be seriously harmed by the rural-only carve-out.
So how does the FCC address that concept in the Order? Another commenter, Goldstein, requests that the Commission offer licenses to “eligible local exchange carriers” in rural areas and not subject such licenses to competitive bidding. Both commenters fail to explain how their proposals would comply with the Commission’s statutory obligations under Section 3002 of the Balanced Budget Act of 1997 and Section 309(j) of the Communications Act. We note that neither Mizelle nor Goldstein specified whether they were addressing all portions of the AWS bands or the 2150-2155 MHz band.
That doesn't line up with what I had said: These 10 to 13 MHz could be part of a 30 to 39 MHz wide license allocation, creating in effect a "carve-out" of rural areas from a license that serves a larger geographic region. So in my proposal, the spectrum would have been auctioned, just not handed to the rural LEC, and I was pretty clear about only taking a small amount of bandwidth out of the auction, never suggesting even remotely that "all portions" of the band be added to my proposed rural service.
My Comment also said:
These allocations will only exist in rural locations where a local exchange carrier is eligible to use BETRS, or currently receives high-cost support, or demonstrates using some other test of the Commission's choice that its cost of providing loops to a significant portion of its subscribers is substantially above national norms....
and
Incumbent LECs are the Eligible Telecommunications Carriers who are recipients of the vast majority of these current subsidies, and thus they should have first option for these AERTS licenses. Uncle Charlie, in the R&O, read that as, Goldstein’s proposal is also flawed because there is no indication of the circumstances under which a local exchange carrier would be eligible for a license.
The Order continues,
Nor does Goldstein indicate what would occur if a local exchange carrier was not interested in a reserved license or if the local exchange carrier decided to subsequently sell the license for a profit.
But my Comment had said,
However, if an incumbent LEC opted to not accept this license and the concomitant future reduction in subsidies, then the spectrum should be offered to alternate carriers, to use for the same purpose. One possibility is for eligible LECs in adjacent or nearby areas to be given an option, followed by offering it to any other company (ILEC, CLEC or CMRS) willing to offer service in the same area.
Okay, I guess I was not explicit about what would happen if a LEC started up offering the WLL as suggested, then shut it down and tried to sell the spectrum to somebody else. I hadn't contemplated that because the carved-out spectrum license was not offered for "sale", but was allocated for a specific purpose, and was thus not meant to be readily transferable.
Moving down towards the techical portions of the Order, I had suggested that the basic unit of spectrum might be 5 MHz, but might be as wide as 6.5 MHz, because some 3G technologies (like W-CDMA) allegedly have problems fitting into a 5 MHz profile:
The suggested basic framework is to divide these 90 MHz into seven to nine channel-pairs, each 5 to 6 ½ MHz wide in each direction, to allow these to be auctioned in blocks of one to three to CMRS or other operators, but with at least one channel-pair reserved or "carved out" in rural areas.
How did the FCC interpret that in the Order? It warrants a footnote which, apparently, implies that I did not call for paired channels:
Most of the commenters advocate licensing this spectrum using symmetrically paired 10 and 15 megahertz blocks.94
94 Cf. Goldstein Comments at 1-3 (advocating blocks of 6.5 megahertz, 5.625 megahertz, and five megahertz).
Yep, it sounds like quite the wacko to suggest three slightly-different block sizes, all unpaired. Someone reading the Order would not get a very accurate impression of what my Comment said there, either.
It's pretty clear from the Order that the FCC is primarily interested in maximizing auction revenues, and that the Wireless Telecommunications Bureau is not the least bit interested in helping the Wireline Competition Bureau save a few billion of the ratepayers' dollars a year. The FCC's Bureaus act like separate fiefdoms. The Commission adopts an Order based upon recommendations of the relevant Bureau. Saving on subsidy money, or modernizing the LEC plant, was not the purpose of this docket. The former Common Carrier Bureau is now called the competition bureau, after all, so if it means spending $20,000 per line to wire up the ranchlands, or $100,000 to bring them DSL, well by gum that's not the Wireless Bureau's problem! Let's not clutter up their profitable auctions with somebody else's problem.
It's nice of the Commission is to read comments filed by the public. But inasmuch as they're actually taken into account, the recent record has not been good. Certainly the recent controversy over broadcast ownership has shown how the Commission's final position can be at odds with the vast majority of commenters ranging across the political spectrum. In my case, though, they had an easier time simply misconstruing the comment. If it were a small error in a place or two, that would be one thing, but in WT 02-353, the text of the Order repeatedly dismisses a comment that simply wasn't the one that I submitted. It doesn't speak well for the Commission's process, or improve one's confidence in the results.
