TR Daily NTIA Asks FCC to Reconsider, Stay Ligado Order
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Tuesday, May 26, 2020

NTIA Asks FCC to Reconsider, Stay Ligado Order

The National Telecommunications and Information Administration has asked the FCC to rescind, or at least modify, and stay its Ligado Networks LLC’s order and authorization, arguing that the company’s terrestrial network would cause harmful interference to federal government use of the Global Positioning System (GPS).

Meanwhile, the chairman and ranking member of the House Armed Services Committee have asked the Commission to “suspend the order and reconsider the proceeding,” and nearly two dozen private-sector entities have also registered their objections in a petitions for reconsideration.

In the item, adopted unanimously last month (TR Daily, April 20), the FCC approved Ligado’s license modification request to deploy a nationwide broadband terrestrial network in the L-band (TR Daily, April 20). The action came over the objection of a myriad of federal government agencies, including the Defense Department, as well as aviation, satellite, weather, and other interests that also rely on GPS.

In a petition filed Friday in IB dockets 11-109 and 12-340, NTIA petitioned the FCC “to reconsider or, in the alternative, to clarify its Order and Authorization in the above-captioned proceedings. NTIA also requests that the Commission rescind its approval of the mobile satellite service (MSS) license modification applications conditionally granted to Ligado Networks LLC (Ligado), which will cause irreparable harms to federal government users of the Global Positioning System (GPS).

“Separately, NTIA is seeking a stay in the proceedings to prevent Ligado from deploying its network until this petition is addressed and harmful interference concerns are resolved,” it noted. “A stay is appropriate because the Commission should meaningfully test its new and unproven harmful interference metric and overhaul unworkable grant conditions prior to deployment. It is crucial that the Commission acknowledge that further technical studies and testing must be undertaken to ensure that Ligado’s actual terrestrial network would not cause harmful interference to GPS and other authorized services before it is authorized to operate anywhere.”

NTIA said that its petition for reconsideration or clarification “focuses on the problems in the Ligado Order that are uniquely related to the interests of DoD and other federal agencies and their mission-critical users of GPS. However, we also note that the Commission failed to consider the major economic impact its decision will have on civilian GPS users and the American economy. As the lead civil agency for GPS, DoT explained in the enclosed [Nov. 22, 2019] letter that Ligado’s proposed operations would disrupt a wide range of civil GPS receivers owned and operated by emergency first responders, among others.

“Throughout the pendency of the LightSquared and Ligado applications and modifications thereto, various federal agencies and interagency groups have worked diligently to evaluate the difficult technical and regulatory issues raised by these applications and their potential impact on GPS. With regard to Ligado’s December 2015 applications (amended in May 2018), NTIA’s Office of Spectrum Management (OSM) solicited technical inputs from the federal agency member representatives and experts who serve on the IRAC [Interdepartment Radio Advisory Committee]. NTIA submitted into the record of this proceeding materials and information on the harms Ligado’s operations would cause.”

NTIA argued that “[t]here are a number of procedural and substantive flaws in this proceeding and Ligado Order. The FCC repeatedly refused to consider the impact of the broader regulatory and policy issues under consideration in this proceeding, including national implications for GPS capabilities and alleged 5G benefits, through appropriate notice and comment rulemaking. The Ligado Order effectively modifies the Commission’s MSS [mobile satellite service]/ATC [ancillary terrestrial service] rules and policies for the L-Band, and these now should be addressed in that context subject to independent technical assessment and evaluation.”

“The Ligado Order failed to adequately consider and give appropriate weight to important and valid executive branch concerns about harmful interference to GPS. The Commission has a long and respectful history of coordinating closely with NTIA and generally deferring to the judgement and expertise of NTIA and other federal agencies, especially in matters affecting GPS or national security and defense,” NTIA complained. “Outside of the GPS-protection context, the Ligado Order represents an unexplained break from the healthy respect that NTIA and the executive branch have generally received from the Commission.”

“The FCC should acknowledge that further technical studies and testing are needed to ensure that Ligado’s actual terrestrial network would not cause harmful interference to GPS and other authorized services,” NTIA added. It also said that the conditions imposed on Ligado should be modified so they prevent and remediate harmful interference to GPS devices used by federal agencies.

Ligado said in a statement that “[i]t is clear that the DoD is the driving force behind the NTIA petition. This rehash of arguments put before the FCC over two years ago contains no new information or technical data to support its request that the FCC reconsider its recent unanimous, bipartisan decision. The entire petition is premised on the tired 1 dB argument, which is just another way of the DoD saying, ‘we want this spectrum for our own use.’ The FCC carefully analyzed and dismantled that argument in its 74-page Order, and we are confident that it will affirm its decision upon review. Maybe this is why Congress has raised so many concerns about what is happening at the NTIA and questioned its ability to play a positive role in critical spectrum management policy decisions.

“We stand with the bipartisan Commission, Members of Congress, Attorney General [Bill] Barr, Secretary of State [Michael] Pompeo and the dozens of public interest, consumer, and wireless industry voices that have weighed in to support the FCC and greater utilization of the L-band,” Ligado added. “We remain confident that, after review, the FCC will stand firm with its decision.”

In a letter dated Thursday but not posted online until Friday, House Armed Services Committee Chairman Adam Smith (D., Wash.) and ranking member Mac Thornberry (R., Texas) reiterated their opposition to the Ligado order and asked the FCC to “suspend the and reconsider the proceeding.

“There are still too many unknown impacts and remaining concerns for this decision to move forward,” they added. “We recognize the need to accelerate the deployment of real 5G capabilities, and we will do our part to ensure the Department of Defense (DOD) continues to aggressively undertake initiatives to share spectrum that is useful for 5G with commercial users. However, these initiatives must not come at the cost of U.S. defense capabilities.”

The lawmakers noted that earlier this month (TR Daily, May 8), “a bipartisan group of House Armed Service Committee Members sent a letter to each of the commissioners that contained a number of questions regarding the decision. Commissioners [Geoffrey] Starks, [Mike] O’Reilly, [Jessica] Rosenworcel, and [Brendan] Carr provided timely responses. The commission’s rules provide that a petition for reconsideration of a non-rule making proceeding can be entertained if it relies on newly discovered facts or if a reconsideration of the facts relied upon is in the public interest. Based upon the responses we received to our inquiry, we believe both criteria have been met in this case, and believe the reconsideration of the approval order and the imposition of additional protections for covered GPS and satellite communications are in order.”

The lawmakers complained that the FCC’s order “failed to properly resolve concerns of harmful interference, creating an undue burden on the Department of Defense.”

“In the committee letter, the commissioners were … asked whether ‘…each commissioner receive a briefing from the Department of Defense on the classified test data contained in the classified report of DOD testing to accompany the Department of Transportation Adjacent Band Compatibility Assessment from April of 2018?’ None of the responding commissioners were aware of the classified information the DOD provided to the commission. As a result, the commission failed to consider material information that may have fundamentally altered their decision. Given the sensitive issues involved in this decision, much of the relevant information from the DOD is classified. Therefore, a thorough review of classified materials submitted by the DOD is an essential step prior to making a decision.”

As TR Daily reported last week (TR Daily, May 21), seven private-sector petitions for reconsideration have been filed challenging the Ligado order. One of the petitions, from the Air Line Pilots Association, International (ALPA), was filed last Wednesday (TR Daily, May 20), while the others were filed on Friday.

The following entities filed the latest petitions or joined in petitions submitted by multiple entities: Iridium Communications, Inc.; Aireon LLC; Flyht Aerospace Solutions Ltd.; Skytrac Systems, Inc.; the Resilient Navigation and Timing Foundation; Lockheed Martin Corp.; Trimble, Inc.; the Association of Equipment Manufacturers; the American Farm Bureau Federation; the American Road & Transportation Builders Association; the Aerospace Industries Association; the Aircraft Owners and Pilots Association; Airlines for America; Aviation Spectrum Resources, Inc.; the Cargo Airline Association; the General Aviation Manufacturers Association; the Helicopter Association International; the International Air Transport Association; the National Air Transportation Association; and the National Business Aviation Association.

Entities asked the FCC to reconsider its approval of the order or at least to modify it to protect various use of GPS from interference. Some also said the FCC violated the Administrative Procedure Act.

“The Commission made several material errors and omissions in adopting the Ligado Order,” complained Trimble, a manufacturer of GPS equipment.

“First, it adopted the Ligado Order through an opaque process without engaging in a notice-and-comment rulemaking and disregarding key inputs from the federal agencies with expertise in GPS gained from utilizing it as a critical utility in accomplishing their public missions. Instead, the FCC effectively outsourced its decision-making to experts hired by Ligado. In so doing, the Commission violated its obligations under Section 343 of the Communications Act (‘Act’),” Trimble complained. “Second, the Commission failed to include a reasoned cost-benefit analysis – merely relying on promises and press releases from Ligado to establish the purported public interest benefits of Ligado’s applications, while failing to systematically consider the costs and risks to GPS and the applications and critical activities that depend on it. Third, it erred by misunderstanding or mischaracterizing agreements between Ligado and a handful of GPS manufacturers to reach the false conclusion that they ‘concurred’ with or supported Ligado’s applications.

“Fourth, the Commission dramatically underestimated the potential for interference to GPS devices by relying on a vague legal standard of harmful interference and ad hoc, limited analyses of Key Performance Indicators (‘KPIs’) as opposed to the readily measurable and well-established 1 dB metric for measuring interference to GPS devices,” Trimble added. “Fifth, even though it acknowledged that an unknown number of the nearly 900 million existing GPS receivers will suffer interference, the FCC’s ‘stringent conditions’ intended to mitigate and address incidents of interference are entirely unworkable, especially because the Commission has outsourced the job of policing interference to Ligado itself. These material errors and omissions require the Commission to set aside the Ligado Order, and deny the applications, or at a minimum thoroughly re-evaluate the potential use of Ligado’s spectrum for terrestrial operations in a notice-and-comment rulemaking proceeding using the criteria supported by the record and federal agencies, and give more appropriate weight to the facts discussed below.”

The aviation and aerospace entities said in their petition that the FCC’s order “recognizes that GPS receivers and SATCOM terminals are entitled to protection from interference caused by Ligado. The record in this proceeding does not substantially support the decisions the Commission made. As a result, the Order does not impose technical and operational parameters that will deliver appropriate protection to GPS and SATCOM. In an attempt to make up for this failing, the Order adopts a long list of license conditions. But these have numerous deficiencies and arbitrarily shift much of the burden for protection upon the aviation industry itself, putting air safety and aviation operations at risk. For these reasons, the Order should be reconsidered and the Ligado applications denied.”

Iridium and several other entities said, “The Commission repeatedly accepted Ligado’s claims at face value despite overwhelming evidence that Ligado’s operations will cause harmful interference with a wide range of civilian and military operations. The Order violates core requirements of the Administrative Procedure Act (‘APA’), entirely ignoring material evidence and arguments that spoke directly to the inquiry before it and offering explanations that ran counter to the record. The Commission should reconsider the Order and deny Ligado’s requests.”

“The record before the Commission contains extensive evidence, including technical analyses, that demonstrate conclusively that grant of Ligado’s mobile satellite services (‘MSS’) license modification applications (the ‘Applications’), as amended, and rule waiver, would not serve the public interest,” Lockheed Martin said. “The Order ignores or glosses over this evidence with a limited and dismissive deliberation that appears to have been driven by the agency’s desire to reach a particular outcome. The Order thus contains substantial legal and procedural errors and must be reversed on reconsideration. Specifically, the Commission’s analysis of the voluminous evidentiary record reveals that the Commission failed to engage in the reasoned decision-making mandated by the Administrative Procedure Act (‘APA’). Moreover, faced with substantial and material questions of fact present in the evidentiary record, the Commission unlawfully failed to designate the matter for hearing as required by Section 309(e) of the Communications Act of 1934, as amended (the ‘Act’). These errors require the Commission to reconsider the Order, reverse its grant of the Applications, deny Ligado’s requested rule waiver, and designate the matter for hearing.”

The petition from equipment manufacturers and agriculture and transportation builder entities said, “The Ligado Order and Authorization fails to consider certain central findings of fact, such as the critical nature of the Global Positioning System (‘GPS’) and its value to various sectors of the U.S. economy, including manufacturing, agriculture, and construction. And the facts upon which it did rely, such as the theoretical benefits of Ligado's network, are unfounded. Finally, the Commission's conclusion that it should require Ligado to compensate federal, but not private, entities for the repair and replacement of GPS devices lacks any support in FCC precedent, and its related decision to require everyday users of GPS devices to notify Ligado of interference and bear the burden of proof of interference turns sound spectrum management on its head.”

In its petition, the RNT Foundation cited “the Commission’s failure to assess the impact of the proposal upon the American public and economy with a cost-benefit or similar analysis; the Commission’s failure to comply with the Communications Act of 1934 as amended by the 2017 National Defense Authorization Act; the Commission’s apparent failure to follow its own rules and the requirements of the Administrative Procedure Act (‘APA’); and Ligado’s predecessor-in-interest withholding information crucial to the hearing.” —Paul Kirby, [email protected]

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