IEEE wants the FCC to declare that innovations in this frequency range are “new technologies” requiring a “public interest” determination within one year.

The history of radio is the history of a push to ever-higher frequencies. In the 1930s, “short wave” at 30 MHz (then called 30 “megacycles”) was near the upper limit. The post-war years saw a rapid push into single-digit gigahertz. Today there is off-the-shelf equipment at pretty much all frequencies up to 95 GHz.

But no higher, because that is where the FCC rules stop. The FCC has assigned uses to frequencies up to 275 GHz, and it claims jurisdiction up to 3,000 GHz. (Beyond 3,000 GHz, signals stop being radio waves and become infrared.)

But above 95 GHz, there are no rules to regulate any service. The FCC will not authorize the marketing of a device that transmits above 95 GHz. FCC approvals in this range can be obtained only on an experimental basis.

The Institute of Electrical and Electronics Engineers (IEEE), which includes the top experts in this area, expects frequencies above 95 GHz soon to be ripe for commercial exploitation. But the group sees the lack of FCC rules as a barrier. In addition to regulatory uncertainty, innovators will face what the IEEE delicately calls “an expected regulatory delay that is difficult to quantify.” We can be more blunt: with just one or two recent exceptions, the FCC has been notoriously slow in approving new technologies.

The IEEE filed a Petition for Declaratory Ruling that seeks to address the problem. It relies on a 1983 statute, called “Section 7,” that says, in part:

The Commission shall determine whether any new technology or service proposed in a petition or application is in the public interest within one year after such petition or application is filed. [emphasis added]

We emphasize the word “shall,” which is Congress’s usual way of signaling that an agency must follow the statutory direction. Despite that, during the 30 years since Congress enacted Section 7, the FCC has mostly ignored it. On a few occasions it has cited other parts of Section 7 as generally favoring new technologies, but the FCC has never complied with the one-year deadline.

The IEEE wants to change that.

Its petition asks the FCC to declare that any technology using frequencies above 95 GHz is presumptively a “new technology” under Section 7 and, thus, subject to the one-year deadline. This would not produce new rules within the year, but only a determination as to whether the technology is in the public interest. In most cases, no doubt, a favorable public interest finding would lead eventually to rules allowing the technology. But the statute does not set a time frame for the adoption of rules and IEEE does not propose one.

We see the fingerprints of our friend Michael Marcus on the petition. He has raised this issue in a pleading; he blogged on the IEEE request back in July, when the IEEE first filed it; and he sometimes wears an IEEE Fellow pin in his lapel – conclusive proof, we think, of his involvement. 

There is a possible downside to IEEE’s idea.

The calendar year specified in the statute is just about the FCC’s minimum for any process that entails notice and public comment – and the public interest determination probably would need public input. Today, even without that determination in the to-do list, getting a new technology approved – from the initial proposal to FCC rules on the books – typically takes at least three years, and sometimes five years or more. This is a long time in today’s environment; there have been cases where a technology was nearing obsolescence by the time the FCC approved it. (This is not all the FCC’s fault; court-required procedural steps at every stage of the process entail a lot of extra work.) We fear that the preliminary public interest determination proposed by IEEE (and required by Section 7) might add an extra year at the front end of the approval process, pushing every other stage back by that same year.

In seeking to accelerate the start of the regulatory process, the IEEE – if successful – might actually delay its conclusion.

Comments on the IEEE petition are due by December 2, 2013 and reply comments by December 17. File under ET Docket No. 13-259.