CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

Within a month of the FTC’s exit, the FCC had fired off a Letter of Inquiry (LOI) in an effort to figure out whether Google’s data collections had broken the law. The law in this case is Section 705(a) of the Communications Act (which, oddly enough, is codified as 47 U.S.C. §605(a)). In relevant part (that would be the second and third sentences of Subsection 605(a)(6)), it bars the unauthorized interception, followed by divulgence, publication or use, of certain radio communications. 

The LOI sought vast amounts of information and documents about Google’s Wi-Fi data collection activities.  Google reacted like any public-spirited organization with nothing to hide would – by cooperating fully, opening its files to the FCC and happily walking the agency through the complexities of its data-collection process . . . NOT. Au contraire, Google mounted an impressive effort – some might call it stonewalling – to keep the FCC in the dark.

The LOI was designed to bring in huge numbers of documents – including internal emails relating to the data collection process – so the Commission was doubtless disappointed with what Google produced: a very small handful of documents, a few apparently unhelpful interviews, and no emails at all. The paucity of materials presumably stemmed, at least in part, from Google’s somewhat circumscribed approach to the LOI. According to Google, it had “not undertaken a comprehensive review of email or other communications” because doing so “would be a time-consuming and burdensome task”. (Having responded to our share of LOI’s, we are sympathetic to Google’s concerns here; we only wish that we had thought to raise the “Gee, that’s a lot of work – we think we’ll pass” defense.) 

Google also chose not to identify any of the individuals responsible for authorizing its collection of Wi-Fi data or any employees who had reviewed or analyzed the Wi-Fi communications collected. Consistent with this insistence on anonymity, it also redacted the names of its engineers from the limited documents that were produced.  Google claimed that identifying its employees “at this stage serves no useful purpose with respect to whether the facts and circumstances give rise to a violation”.

The FCC sleuths were able to identify the engineer who developed the software code that Google used to collect and store payload data. In the NAL he is referred to as “Engineer Doe”. We’re guessing that’s not his real name . . . not that knowing his real name would help anything. According to the NAL, Engineer Doe lawyered up and took the Fifth, effectively slamming the door on that potentially useful source of information.

And the icing on the cake: Google declined for nearly the entire length of the investigation to provide a verification, under penalty of perjury, from any corporate official with either first-hand involvement in the data collection effort or personal knowledge of the information contained Google’s response. Such a verification of the accuracy of the response was specifically required by the LOI and is SOP in dealing with the Commission.

Undeterred (and perhaps nonplussed), the FCC issued a supplemental LOI, but that didn’t result in more useful intel from Google. That was followed by a demand letter making sure that Google knew that the FCC was really, really serious – it ordered Google to provide complete responses to earlier requests and requested additional information. Same non-result. And then a final supplemental LOI. Ditto. Throughout the process, the Bureau was also in touch with Google by phone and in person. All to no avail.

So despite the fact that the Commission dipped its regulatory arms deeply into what appeared to be a trough brimming with useful factual information, the Commission came up empty-handed.

But Google was not completely silent. While it kept its factual cards close to the vest, it laid out a legal argument to show that the data collection that occurred during its Street View process was not illegal. 

Google pointed out that the Wiretap Act – a section of the federal criminal code the relevant part of which you can find at 18 U.S.C. §2511 – effectively trumps Section 705(a) of the Communications Act, at least as far as the alleged misconduct is concerned. The Wiretap Act provides that it’s OK

to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public.

The statute defines “readily accessible to the general public” as, among other things, not being scrambled or encrypted. According to Google, the payload data it collected and accessed was only from unencrypted networks, not from any encrypted networks. QED: Nothing illegal happened here. With a casual wave of its cloaked hand, Google assured the Commission that these were not the droids it was looking for. 

And even if the Commission weren’t susceptible to Jedi mind tricks, what was it to do? Thanks to (a) Google’s refusal to provide virtually anything in the way of hard information, and (b) Engineer Doe’s Fifth Amendment embrace, the FCC had no evidence from which to dispute Google’s self-serving conclusion.

Presumably recognizing its predicament, the Commission beat a quick retreat, at least with respect to the claim that Google may have violated Section 705(a). Acknowledging that there is no FCC precedent on this particular question, and acknowledging as well its lack of evidence, the Commission declined to find any such violation here.

But the Commission wasn’t ready to let Google off the hook entirely. Obviously miffed that Google had, um, largely ignored the Commission’s LOI, and its supplemental LOI, and its demand letter, and its second supplemental LOI, and its various blandishments delivered by phone or in person, the Commission wanted at least something to show for its efforts. (Think Glenn Close in Fatal Attraction.)

So with a carefully honed prosecutorial knife, the Commission lunged boldly at Google’s capillaries, proposing a fine of $25,000 because Google’s “level of cooperation with this investigation fell well short of what we expect and require”. The base fine for such lack of cooperation would normally have been $4,000, but the FCC wanted to give Google what for, in part “to deter future misconduct”. For sure the $21,000 bump over the base fine should scare the bejeebers out of Google, whose 2011 gross revenues were a paltry $38 billion or so. With a forfeiture amounting to, what, not even one ten-thousandth of one percent of its annual revenue, Google obviously has much to fear.

Actually, the NAL subliminally suggests that Google has very little to fear, at least from the FCC. That’s apparent from extraordinary redactions that make many pages of the NAL look like Rorschach tests. (See the graphic, above, which depicts one page from the NAL.) Some sample redactions:

• “In response to the Supplemental LOI, Google expanded upon [REDACTED]. Google explained that [REDACTED]." "Google further stated that [REDACTED]."
• "In interviews and declarations, managers of the Street View project and other Google employees who worked on the project told the Bureau they [REDACTED]."
• "One engineer remembered [REDACTED]."
• "During interviews with Bureau staff, Google employees stated that [REDACTED]."
• "In both his written declaration and his interview with Bureau staff, the engineer characterized [REDACTED]."

Such redactions are rarely seen around these parts. Our guess is that these were done at Google’s request. The Commission, after all, would appear to have no incentive to withhold the redacted information. Google, on the other hand, is facing potential liability in a number of other venues where its data collection activities are still under investigation. It’s reasonable to assume that Google plans to stick to its stonewall approach as long as possible in response to as many investigations as possible. Inclusion of lots of informational tidbits in an FCC NAL available to the whole world would not be consistent with that strategy. So we’re guessing that Google asked the FCC to be nice guys and black out vast swatches of the NAL.

What’s something of a puzzle is why the FCC would go along with that request. After all, the Commission seems, rightfully, to be cheesed off at the way Google cavalierly thumbed its nose at the FCC’s investigation. Why should the Commission turn around and do Google any favors?

In addition to that practical question, though, the NAL leaves open other far more important legal questions.

Is Google correct that the Wiretap Act effectively permits interception of communications carried on unencrypted Wi-Fi networks? The Act’s language can be read to support that position, and there is nothing contrary to that reading in FCC precedent, as the Commission concedes. But the Wiretap Act was drafted in the 1980s, a decade or more before the advent of even the earliest Wi-Fi networks. It’s not at all clear that, in referring to “electronic communication . . . readily accessible to the general public”, the authors of the Act had in mind a home wireless network, as opposed to the technologies of a generation ago.

And even if the “readily accessible” exception turns out to be applicable where individuals fail to encrypt personal home wireless networks, should data collection of the scale and scope as the Street View project nevertheless be subject to some legal constraint? And at what point does the massive aggregation of data provide sufficient information to violate our expectations of privacy? 

We, of course, have no official opinion on this matter. If we did, though, we would have to say [REDACTED].

 Antenna Height. The 2010 rules limited fixed device antenna heights to a maximum of 30 meters above ground, and the height above the average terrain (HAAT) to no more than 76 meters. Several parties requested reconsideration of this restriction, particularly the HAAT portion. (According to one, the majority of the state of West Virginia would have been off-limits.) The FCC now allows fixed white space devices to have antennas up to 250 meters above average terrain, although still no more than 30 meters above ground level. At the same time, the FCC revised the separation distances between fixed white space devices and television contours to allow for the greater HAAT, but left unchanged the separations for wireless microphones and the exclusion zones around MVPD, LPTV, and BAS receive sites.  A device that provides database information to Mode I portable devices must comply with the previous HAAT limitations, so as to keep the Mode I device from straying too far from a known location.

Out-of-Band Emissions: The 2010 rules limited out-of-band emissions to 72.8 dB below the device’s highest in-band emissions. Now the out-of-band emissions are relaxed to 72.8 dB below the maximum power allowed within the 6 MHz bandwidth. The new order also cuts back the required occupied bandwidth from 6 MHz to 5.5 MHz, so as to ease the roll-off at the channel edges, and slightly increases the allowable power spectral density so as to leave total power unchanged.

Channel 52 Protection:  As part of the transition to digital television, the FCC auctioned former TV channels 52 and above for wireless use. The wireless companies have long sought restrictions on channel 51 TV operation to protect their frequencies just above, and similarly requested limits on white space devices on channel 51. The FCC refused, partly on procedural grounds, and partly on the principle that white space devices, being unlicensed, are already required to protect licensed wireless operations.

Classes of Devices: The FCC rejected a new class of white space device, similar to “Mode II” but for indoor use only, without GPS capabilities. The FCC feared these could be easily moved without updating their locations, thus creating interference. It also found the new class to be largely unnecessary, as Mode I portable devices may operate without geolocation (although they must query a Mode II or fixed device periodically).

Confidentiality of Database Information: The FCC makes publicly available all information required to be included in the databases that white spaces devices must search before operating.  A cable association asked the FCC to withhold certain data, including coordinates of cable headends and towers, claiming this type of equipment was “critical infrastructure” that could be subject to terrorist attack. The FCC disagreed with the premise and refused the rule change.

Finally, the FCC clarified two points. It emphasized that LPTV, television translator, and Class A television stations will have their receive sites protected based on the coordinates available in the existing CDBS database. The FCC will create a new web interface so that broadcasters can update the information. Second, the recent order corrects the coordinates of certain radio astronomy sites, which must be included in white spaces databases and protected by white spaces devices.

Most of the rule changes will take effect 30 days after publication in the Federal Register. Revisions to the filing of receive site information and entry of other information into the white spaces databases require OMB sign-off, and will probably take a few months longer.   Check back here for updates.

So far all of these rules control only a limited deployment in Wilmington, NC. But with the rules approaching final form, and more databases coming on line, white space devices may finally take the big step from PowerPoint to reality.

On reconsideration, though, the FCC determined that some MVPD services and translator/LPTV/Class A stations relying on over-the-air reception to obtain and redistribute TV signals are located more than 80 kilometers from the originating TV station’s protected service contour. In order to avoid disruption in those circumstances, the Commission opted to expand the notion of “within reasonable bounds” temporarily: it provided a 90-day opportunity (commencing with the effective date of the rules) for MVPD’s, TV translator, LPTV and Class A TV stations to request a rule waiver to allow them to register their receive locations in the TV bands devices database. This opportunity is available only for locations at which the TV programming is received over-the-air more than 80 kilometers from the originating station’s protected contour.

The initial 90-day waiver request filing period will expire on April 5, 2011. (Facilities that meet the geographic standards but don’t get licensed until later will have 90 days, starting with commencement of operation, to file for a waiver.)

Waiver requests should demonstrate how the operation of an unlicensed device near the relevant receive site would act to disrupt current patterns of television viewing. After a waiver request is received, the FCC will put it out for public comment and then will make a determination as to whether it will be granted.

The Commission has not yet provided any special instructions for the filing of such a waiver request.  Check back here for updates on that score. But absent any such instructions, it would appear that filing through the Secretary’s office with a reference to ET Docket Nos. 02-380 and 04-186 should do the trick. Electronic filing in the dockets might also be a possibility – but, again, the FCC hasn’t given any guidance yet. We’ll post a follow-up on this as developments warrant.

This inclusive non-decision may reflect the FCC’s often-expressed distaste for “picking winners and losers.” Or it might follow from the FCC’s having neglected to state, at the outset, the criteria it would use for selection, an omission that leaves it vulnerable to challenge from the losers. This problem does not arise, of course, if there are no losers.

One applicant and a wireless microphone coalition challenged the impartiality of some other applicants. The FCC responded with a stern injunction against the administrators engaging in anti-competitive practices, and a promise of careful oversight.

Here at CommLawBlog, we have two concerns.

The FCC could have decided to manage the database itself. It certainly knows how; it keeps close track of millions of licenses. The FCC opted instead to farm out the work. With one or two administrators, that might have been a labor-saving move. But riding herd on nine of them, some inexperienced, each working with a database built to a different design, might turn out to be more work for the FCC than just doing the job on its own.

The other problem relates to data quality. Each administrator will keep its own database, but all nine must reflect the same underlying reality. Some of the data are slow-moving and should be easy to maintain – TV station contours, for example, and locations of protected TV receive sites, such as cable TV headends and TV translators. Potentially more troublesome, though, will be wireless microphone users’ frequent and changing registrations as they sign up for short-term interference protection at sporting events, political events, concerts, etc. These data will be volatile.

Suppose NBC, say, as part of its planning to cover an event, logs on to its preferred database administrator and registers a few dozen wireless microphones by date, time, place, and TV channel number. That information must be made available to every TVBD in the vicinity of the event, through every database administrator. Accordingly, the administrator receiving the registration must quickly and accurately disseminate it to the other eight, in a form that allows easy incorporation into their own, differently-designed databases. This kind of coordination is hard enough among two or three parties. We wonder whether nine can bring it off reliably.

And those nine will be competitors after the same business. It may become tempting for some to try making the others look bad by feeding them bad (or late) information. Even greater will be the temptation to cut costs by using ill-trained and badly supervised staff. Just as the hygiene of a shared kitchen quickly sinks to the level of the sloppiest person using it, so will the quality of the shared data reflect the least careful administrator.  (Users may appreciate the lower cost . . . at least until they realize that you do, in fact, get what you pay for.) 

To say, “You’re all winners!” is fine for T-ball. But maintaining a large and critical database takes real skill and a large measure of dedication. We may all come to wish the FCC had exercised greater adult authority in making its choices.

STAs are not a rarity. They are routinely issued to, say, stations that suddenly lose their transmitter sites or that suffer equipment damage during a storm. LPTV stations may well need STAs during the process of transitioning from analog to digital operation – a transition that the FCC is proposing to make mandatory. An STA allows the station to continue to operate – possibly from an alternate site or with facilities other than those specified in its license (or license application) – until it can either (a) return to its authorized site/facilities or (b) obtain permanent authority for its modified site/facilities.

The Commission’s failure to include STAs in the white spaces database appears to be a serious slip. Operation pursuant to an STA is Commission-authorized broadcast operation which should be protected from white spaces devices to the same degree as “licensed” operation.  This error seems to us to merit a petition for reconsideration by the TV industry.

The other issue involves TV translators, LPTV stations, cable systems and other multichannel video programming distributors (let’s call them, collectively, “retransmitters”). As might be expected, retransmitters  retransmit other stations’ signals, signals which are generally received by the retransmitter over-the-air. If a white spaces device cranks up near the point at which the retransmitter ordinarily picks up the signal, the retransmitter’s ability to effectively operate is threatened.

The Commission recognizes this problem. In the 2008 version of the white spaces rules, the Commission permitted some (but not all) retransmitters to register their over-the-air receive sites in the white spaces database – but only if those sites were (a) within 80 kilometers (50 miles) of the originating station’s service contour but (b) outside that station’s protected contour. Now, however, at the suggestion of a number of parties the Commission has expanded the area in which receive sites may be registered. That expansion, though, is not gotcha free. 

Under the newly-announced revisions to the rules, all (not just some) retransmitters with over-the-air receive sites more than 80 kilometers from the edge of the received station’s protected service contour may submit waiver requests seeking to have those receive sites registered. The Commission will then issue a public notice soliciting comments on such waiver requests. After reviewing everything that comes in, the Commission will decide on a case-by-case basis whether or not to include each such site in the database.

Existing operators who may wish to take advantage of this potential registration opportunity should be particularly alert. Starting with the effective date of the new rules, such operators will have 90 days in which to submit their waiver requests. (Retransmitters who commence operations in the future will have 90 days from the date on which they start up.) The Commission has not provided a time frame during which its resolution of such requests can be expected.

The effective date of the new rules has not yet been announced, and won’t occur (at the earliest) until 30 days after the new rules have been published in the Federal Register. Additionally, it seems unlikely that the Commission will invite new registrations (or registration waiver requests) until a number of practical questions relating to the white spaces database have been resolved. For example, who will manage the database, how will registrations and the like be submitted, how will the database be implemented? Obviously, there is still much to be done before white spaces devices are likely be unleashed on us all.

The technical problems with white space devices center on avoiding interference to TV stations and the wireless microphones that have long used vacant TV channels. The original plan called for each device both to use geolocation – ascertaining its own position using GPS and consulting a database to find locally vacant channels – and also to “sniff” for TV stations and wireless microphones, a process called spectrum sensing. (The FCC exempted from geolocation certain devices under the control of other devices and, separately, allowed for the possibility of some sensing-only devices.)

The new decision confirms the geolocation requirement, with many critical details still to be fleshed out by the Office of Engineering and Technology. But the FCC has pulled back on sensing. When it tested spectrum sensing technologies several months ago, none of them worked well. This result surprised us, as white space proponents had touted sensing as the ultimate safeguard against interference. In some other universe, the agency might insist the promised technology function properly before it allowed deployment. This universe, though, works differently: the FCC’s spectrum-exploding train will not be de-railed, so they simply dropped the sensing requirement for devices that use geolocation.

Sensing-only devices are still allowed, but only under very rigid technical constraints that will be hard for manufacturers to satisfy. Because database checking will usually be the sole feature for avoiding interference, the FCC promised a rigorous certification procedure to make sure devices handle this function properly. Again, no details.

The FCC struggled, with only limited success, to accommodate users of wireless microphones in broadcasting, theater, movie-making, sporting events, and public gathering places like churches and auditoriums. The FCC will reserve two TV channels in each geographic area for wireless microphones, which it thinks will accommodate 12-16 microphone voice channels. Some parts of the country will also have other channels closed to white space devices and available for wireless microphones. Large productions, though, often use 100 or more. Microphone operators may request to have specific events entered into the white space database, which should (if all goes according to plan, that is) automatically keep white space devices away. Requests to protect unlicensed microphones must show that the channels free of white space devices cannot do the job. These requests will be subject to public comment, which requires 30 days advance notice. Without a database entry, and in the absence of spectrum sensing, the microphones will have no protection against white space devices on the same channel. 

In the end, the FCC believes wireless microphones should move to more efficient digital technology. But it did not address the difficult engineering problems that so far have barred this option.

The question of using vacant TV channels for backhaul links in rural areas is deferred.

Read the FCC’s news release on the decision and the full text of the White Spaces order.

[Blogmeister's Note:  This post has been updated as of 9/24/10 to provide additional information culled from the full text of the Commission's white spaces order.]