Joel Thayer , Harold Feld , and Daniel Hoffman
The Department of Defense and the Department of Transportation are far from the first to try to upend an independent agency's proceeding. However, these executive agencies have been far more aggressive than normal in that pursuit in response to the Federal Communications Commission's April 20 Ligado decision. This dispute significantly compromises the United States' leadership in global markets — by both undermining domestic initiatives and by undercutting our policy positions internationally.
The recent dispute concerning Ligado pits the DoD and DOT on one side, and the Federal Communications Commission, the State Department and Attorney General Bill Barr on the other. This dispute involves the FCC's unanimous decision to grant new wireless entrant Ligado's request to modify its licenses to provide a national, low-power 5G network for Internet of Things services.
The Ligado decision took nearly two decades, all told. It is not overstating to say that what should be a straightforward engineering decision has devolved into a watershed moment that, if Congress doesn't act, may prevent the U.S. from deploying 5G at a rate greater or equal to China or other international sovereigns. Worse, it will deprive Americans of competition, wireless innovation and related economic growth for years to come.
IoT enabled by 5G will revolutionize everything from precision agriculture to self-driving cars. By focusing exclusively on IoT, Ligado can expedite the deployment of this technology while traditional wireless carriers focus on building out consumer-oriented 5G networks. This will accelerate deployment of 5G networks and introduce competition into the nascent IoT market. This is why Barr (whose Antitrust Division concentrates on competition) and the State Department (which wants to see the U.S. retain wireless leadership in global markets) have supported the FCC's decision.
Ostensibly, the DoD and DOT say that Ligado will interfere with sensitive GPS operations. But its rationale does not survive even casual scrutiny. In recent weeks, internal emails from the DoD have surfaced showing that at least some of the DoD's own spectrum experts categorically agreed with the FCC that Ligado posed no threat, but were overruled by their superiors.
The real issue is that the DoD and DOT are the largest and most powerful federal spectrum users. Any growth in 5G will require them to make further adjustments. Oddly, neither agency operates near Ligado's spectrum, and yet they seek to impede Ligado's ability to innovate in it. Put simply, Ligdao is just the unlucky party caught in the middle of their broader interagency spectrum fight.
Congress made the FCC an independent, expert agency to prevent precisely this kind of situation. One of the most important reasons the FCC even exists is to set uniform rules for commercial wireless networks so that equipment can interoperate and companies can innovate, which ensures consumers ultimately reap the benefits of their products.
Unfortunately, the Senate and House Armed Services committees intend to end run the agency by including provisions in the National Defense Authorization Act that, in effect, prevent stakeholders that work with the Defense Department — either directly or indirectly — from using Ligado's network, which includes just about every major company in America.
The U.S. squabbling with itself only yields an uncontested “win” for China. Our competitors are coordinated and not stumbling over themselves on petty spectrum disputes. They are certainly not waiting for the United States government to get its act together.
To the contrary, as the House Appropriations Committee observed in its report on the FCC's budget: “The U.S. is falling behind other countries in the allocation of [5G] spectrum.” Chinese-owned companies Huawei and ZTE have already bought up significant wireless infrastructure for its 5G networks across the globe and have begun deploying IoT services in the same or similar bands the FCC authorized for Ligado. If that happens, it's China that sets the terms for 5G, which adversely affects our nation's security given China's penchant for international data aggregation.
Upending the FCC would hand China a nearly insurmountable advantage in the race to 5G. Also, if Congress sides with the DoD and DOT instead of observing the FCC's 17-year-long rigorous testing and analysis, which included that of the DOT's and the Defense Department's own spectrum experts, then the FCC will be effectively paralyzed going forward. Congress needs to put a stop to these games before they do permanent damage and let the FCC do its job.
Joel Thayer focuses his practice on telecommunications, regulatory and transaction matters, as well as privacy and cybersecurity issues. Harold Feld has worked in telecommunications law for more than 20 years. He is senior vice president of Public Knowledge, a 501(c) that advocates for policies to expand broadband access. Public Knowledge has provided support for Ligado several times in the FCC proceeding. Ligado sponsors its IP3 award at the $5,000 level. Daniel Hoffman worked in the CIA, where he was a three-time station chief and a senior executive clandestine services officer. He has been a Fox News contributor since May 2018.
https://www.c4isrnet.com/opinion/2020/07/23/to-be-competitive-in-5g-the-us-must-play-offense-not-defense/
