FCC Chairman Ajit Pai has provided a detailed defense of the agency’s unanimous Ligado Networks LLC order, as well as of the process that lead to it, saying that the Department of Defense and other critics had sufficient time to make their arguments against approval of Ligado’s license modification request to deploy a nationwide terrestrial broadband network in the L-band (TR Daily, April 20). He also said DoD never offered to give him a classified briefing concerning classified test data or sought to submit such data into the record of the proceeding.
In a letter dated yesterday and released today to 23 members of the House Armed Services Committee who wrote Mr. Pai and the other Commissioners earlier this month (TR Daily, May 8), Mr. Pai said he was pleased that the committee arranged a joint briefing last week with staffers from the FCC and DoD.
Mr. Pai said the Commission “would never take an action that would compromise the safety and security of the American people. That is why the decision adopted by the Commission with respect to the L-band proceeding included strict conditions to ensure that GPS operations continue to be protected from harmful interference. These include a 99% reduction in power for downlink operations. Ligado must establish a 23-megahertz guard band using its own licensed spectrum. It must consult relevant agencies prior to particular deployments and commencement of operations. It must develop a program to repair or replace any potentially affected devices in a manner consistent with the relevant agency's programmatic needs. Furthermore, to address national security concerns raised by the Department of Defense, if the Department determines, based on the base station and technical operating data Ligado is required to make available to it, that Ligado's operations will cause harmful interference to a specific, identified GPS receiver operating on a military installation and that the GPS receiver is incapable of being fully tested or replaced, Ligado must negotiate with the Department to determine an acceptable received power level over the military installation in question.
“And finally, the FCC has placed on Ligado the burden of resolving any instance of harmful interference, including through the a ‘stop buzzer’ capability that can cease all transmissions within 15 minutes of receiving a request,” Mr. Pai added. “While many would argue that these conditions go beyond what is necessary given the evidence in the record, I thought that it was important for the Commission to go the extra mile to ensure that national security would be protected.”
Mr. Pai also said “that it is important to address a fundamental misconception that is set forth in your letter and has permeated much of the public discussion about this matter. Although your letter references the shared use of spectrum, the Commission's L-band decision does not authorize any spectrum sharing between Ligado and GPS. In fact, spectrum in this band has been licensed to Ligado and predecessor companies for over 30 years – with those companies authorized to deploy terrestrially since 2004. And as mentioned above, one of the FCC's conditions require separation of Ligado's operations from GPS spectrum by means of a 23-megahertz guard band. Thus, any implication that the Commission has authorized Ligado to ‘share’ spectrum that is currently allocated to GPS is incorrect. GPS has no right to operate in the spectrum in question, so there is nothing for Ligado to share.
“Moreover, your letter implies that the Department of Defense lacked an opportunity to present to the Commission, and in particular the Commissioners, technical information concerning the Ligado application. This is false. It is indisputable that the Department of Defense was provided with numerous opportunities over nearly a decade to provide the Commission with any relevant evidence it wished to submit,” the Chairman added. “Like other administrative agencies, the FCC makes its decisions based on the record before it. As such, the Commission maintained an open and transparent process in considering Ligado's proposed terrestrial network.”
Among other things, he stressed that DoD and other agencies were given an opportunity to weigh in on a draft of the FCC’s order before it was adopted and he said he spoke with Defense Secretary Mark Esper, Under Secretary-research and engineering Michael Griffin, and Deputy Under Secretary-research and engineering Lisa Porter “to ensure that the Department had every possible opportunity to make its case to the Commission.”
Mr. Pai continued, “The bottom line is this: The fact that another agency does not like the end result in this proceeding says nothing whatsoever about the process the FCC followed – a process that was both completely consistent with the Administrative Procedure Act and far, far more generous (not to mention far, far more delayed; I recently observed my eighth anniversary at the Commission, and when I started, this matter even then had been pending for years) than in any other proceeding of which I am aware. And it certainly does not diminish the soundness of the technical analysis in the Ligado Order, which was the result of the years of work by the FCC's excellent career staffs evaluating test results, compiling information in the record, and ultimately writing a thorough order for the Commission's consideration.”
Mr. Pai also answered questions asked in the committee’s letter.
“With respect to your first question, section 1698 of the National Defense Authorization Act for Fiscal Year 2017, codified at section 343 of the Communications Act, states that the Commission shall not permit commercial terrestrial operations in the 1525-1559 MHz or 1626.5-1660.5 MHz bands until 90 days after the Commission ‘resolves concerns of widespread harmful interference by such operations’ in those bands ‘to covered GPS devices.’ The Ligado Order itself – in a section titled ‘Compliance with Section 343 of the Communications Act’ – explains how the Commission's decision is consistent with that requirement (see paragraphs 129-30). Among other things, this explanation notes that the concerns regarding widespread harmful interference with covered GPS devices were ‘effectively resolved based on the parameters of Ligado' s amended modification applications, the test data/analyses presented in the record, and the conditions imposed in this Order and Authorization, which address any identified potential harmful interference concerns before ATC network operations commence.’”
“With respect to your second question, you ask whether the Department of Defense briefed Commissioners on the classified test data contained in the classified report of Department of Defense testing to accompany the Department of Transportation Adjacent Band Compatibility Assessment from April 2018. I cannot speak for my fellow Commissioners, but despite my repeated communications with Department of Defense officials, including in facilities in which the sharing of or discussion about classified information was permitted, none ever offered me such a briefing nor suggested that such a briefing was necessary,” Mr. Pai said. “Had the Department of Defense offered this type of briefing, I of course would have participated (and have in fact done so on other topics).
“Furthermore, the Department of Defense never entered, nor to my knowledge ever sought to enter, the results of this testing into the record of the Ligado proceeding. That is despite the fact that we have procedures in place for filing classified materials with the FCC-procedures other agencies routinely have followed. Had the Department of Defense provided this material to the Commission in 2018 to accompany the Department of Transportation's adjacent band compatibility analysis (which itself was submitted into the FCC's record for consideration), or had the Department provided it to us in 2019 in response to our draft decision granting Ligado' s application (when other information was provided), or had the Department provided it in March 2020 (when the Department of Commerce's National Telecommunications and Information Administration filed another Department of Defense memorandum), it would have been evaluated by the Commission along with all other testing data supplied by parties to the proceeding,” Mr. Pai said. “But instead, the Department for whatever reason declined to provide the Commission With this information time and again and again. As a matter of law and good government, we cannot make a decision based on information that is not in the record – in this case and in every other.”
An FCC spokesperson said today: “The FCC is required by law to make its decision based on the facts in the record, and federal agencies, including the Department of Defense, were provided with multiple opportunities to put whatever facts they believed to be relevant into the record, including classified information, which the Commission has a process in place to protect. The Commission based its decision on all of the information in the record. Moreover, we are not aware of the FCC refusing any request by the Department of Defense to provide a briefing related to this matter. To the extent any federal agency opposed to the Ligado application chose not to share information with the Commission, that was the agency's decision and suggests that it did not believe that the information in question would bolster its case.”
The other four Commissioners also told the House Armed Services Committee that they were unaware of any classified information provided to the FCC by DoD, according to a letter to the agency last week from committee Chairman Adam Smith (D., Wash.) and ranking member Mac Thornberry (R., Texas) (TR Daily, May 26), who signed onto the letter from the 23 committee members. Reps. Smith and Thornberry cited the fact that Commissioners did not review classified information from DoD as a reason that the FCC should “suspend the and reconsider the proceeding.” —Paul Kirby, [email protected]
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