Colorado students propose a mechanism for swift adjudication of interference disputes.
When Congress created the FCC in 1934, it ordered the new agency to “Make such regulations … as it may deem necessary to prevent interference between stations ….”
Eighty-one years later, the FCC has still not figured out how to do this. For much of that history there was plenty of spectrum to go around, so interference problems were sporadic. But over the past 25 years or so, falling prices for radio gear and the proliferation of new radio-based technologies have led to congestion, which in turn has caused increasing numbers of interference events.
In broadcast, fixed microwave, and a few other services, the FCC has foreclosed the problem by prohibiting the introduction of a new station until the applicant shows it will not cause interference to the incumbents – but this works only for fixed transmitters operating at relatively high power. Users of some other services, such as Wi-Fi and amateur radio, get no interference protection at all. Most services are somewhere in between: entitled to protection in theory, but largely helpless when interference actually occurs. Very occasionally, the FCC has addressed interference problems by adjusting its technical rules: for example, when automotive radar detectors interfered with satellite receivers, and more recently, when wireless Internet service made trouble for weather radars.
Most of the time, though, an interference victim just has to put up with it.
When the FCC does take action, its usual response is an after-the-fact enforcement proceeding against the party that caused the interference. This is the wrong tool for the job. Enforcement acts on only a small fraction of complaints, is arbitrary in whom it targets, comes too late to help the victim, sweeps up innocent offenders along with the truly guilty, and sometimes sets the penalties so high as to become an object of litigation rather than an effective deterrent.
Law students at the University of Colorado have a different idea. Their recent Petition for Rulemaking asks the FCC to let an interference victim file a complaint directly with an FCC Administrative Law Judge (ALJ) – a magistrate whose main job to date has been to preside over hearings. The petition contemplates that an ALJ handling an interference dispute would supervise the parties’ discovery of each other’s evidence, receive such other evidence as the parties wish to submit, perhaps hear testimony, and render a decision. In court litigation, the discovery process often leads to settlement or to alternative procedures such as mediation. The CU students expect the same will happen here. In case it doesn’t, they ask the FCC to impose time limits on the ALJs in order to ensure speedy decisions,
Today the FCC has the authority to refer an interference dispute to an ALJ but, according to the petition, has never done so. There is presently no way for an aggrieved party to bring a matter directly to an ALJ – hence the need for a rulemaking.
Down here in the CommLawBlog bunker we always admire fresh thinking. Still, we’d like to raise a couple of concerns we hope the petitioners will address going forward.
An ALJ’s job is to interpret and apply the law, but here, there is precious little law to work with. The rules say that users must avoid causing “harmful interference” to protected licensees, but the FCC has not said much about what that term means. The official definition of “harmful interference” comes in two parts:
- any interference that “endangers the functioning of a radionavigation service or of other safety services,” or
- as to all other services, interference that “seriously degrades, obstructs, or repeatedly interrupts” communications.
The first component is mostly clear, but the second is not. The CU students, perhaps for this reason, propose to back up the ALJ with a “spectrum technical advisor.” Even a technical expert, though, cannot make reasoned and legally defensible decisions without more direction from the Commission than we presently have.
Our other concern centers on appeal processes and their potential for crippling expense and delay. An ALJ’s decision can be appealed to the full Commission. After the Commission rules, a party can request reconsideration of its decision. A party can then seek review of that result in turn before a panel of the U.S. Court of Appeals. The losing party there can request a rehearing by the initial three-judge panel and/or further review by the entire court sitting en banc; it can then ask the U.S. Supreme Court to accept the case. The initial Commission review and each of the court options can typically take a year or more; the FCC tends to give reconsiderations a low priority, so that stage might need two or three years. Thus, even if the ALJ moves promptly, a final resolution could still take the better part of a decade. These processes are not only slow, but expensive, which gives a big advantage to whichever party is better funded. A small user, even if in the right, won’t stand much of a chance against one of the telecommunications behemoths.
And there is a more mundane snag: at present the FCC has only one ALJ on the payroll. That would create a major bottleneck for the CU proposal, seriously undercutting its utility. The obvious solution – hiring more ALJs – may not be realistic, given budgetary constraints that have beset the federal government generally and the FCC in particular.
All the same, the CU students are exactly right in saying we need a fast, certain, and inexpensive way to handle these disputes. We hope the FCC will take their petition as a starting point in rethinking its approach to interference events.
If you have ideas that might help, tell the FCC. Comments on the CU petition are due by July 13, 2015. File here; use proceeding number RM-11750.