1. Transparency in Communications Regulation: Suggestions for RATEL Part II: Internet Implementation and An Example Michael J. Marcus, Sc.D., FIEEE Marcus Spectrum Solutions Paris France mjmarcus@alum.mit.edu www.marcus-spectrum.com

2. Outline Internet Implementation of Transparency A Real Example

3. Internet & Transparency Use Internet for –Posting regulations –Announcing possible changes and requesting comments –Submission and archiving comments –Announcing rule changes and giving explanation in view of comments –Announcing rule enforcement

4. Internet use make lack credibility if archive is subject to tampering Suggest designing system with a clear audit trail that shows all changes and when they were made and by whom –Wikipedia “history file” may be good model Internet & Transparency

5. FCC Online Systems for Rulemakings/Consultations FCC, and other US agencies, have online systems that have evolved from previous paper systems Thus there are anachronisms/quirks that would not be appropriate for a brand new system at RATEL

6. There are two somewhat redundant online systems –EDOCS tracks all FCC-created public documents including proposals and decisions –ECFS tracks all rulemakings and other consultations with both FCC-created documents and public filings Other agencies have similar systems, e.g. http://dms.dot.gov/search/searchFormAdvanced.cfm http://dms.dot.gov/search/searchFormAdvanced.cfm http://ruleforum.llnl.gov/cgi-bin/rulelist?type=prule Unfortunately, no good overall index at FCC FCC Online Systems for Rulemakings/Consultations

7. Index of Consultations Helpful Unfortunately, no FCC-wide index at present This is a partial index from one office Recommend agency-wide index http://www.fcc.gov/oet/info/docket_comments/ Link to comments

8. ECFS - Electronic Comment Filing System Contains Petitions, proposed rules, comments, & decisions Many types of searches are possible Heart of rulemaking & consultations at FCC http://gullfoss2.fcc.gov/prod/ecfs/comsrch_v2.cgi

9. Electronic Filing of Comments Paper filing also allowed 2 step process Simplified option for short comments Step 1 http://gullfoss2.fcc.gov/prod/ecfs/upload_v2.cgi

10. Electronic Filing of Comments Option for files with long comments Option for direct entry of short comments Step 2 or

11. An Real Example This is an amateur radio spectrum rulemaking that is relatively simple –3 parallel issues were actually involved, all examples of text will be from one issue –Amateur radio is a low priority issues so timing is not typical

12. ECFS Record of Whole Proceeding All FCC documents, ex parte notices, and comments are in a common sequential file –Evolved from previous pre- Internet system –Needs better indexing –Some documents scanned, text can not be copied Physical access also available on terminals at FCC http://gullfoss2.fcc.gov/cgi-bin/websql/prod/ecfs/comsrch_v2.hts?ws_mode=retrieve_list&id_proceeding=02-98

13. Chronology of Example Petition22/10/98 Public Notice requesting comment 23/11/9830 days for comments Notice of Proposed Rulemaking (Consultation) 15/5/0245 days* for comments 15 days* for reply comments Report & Order (Decision) 14/5/200330 days* to request reconsideration Reconsideration request 19/5/03 Public Notice requesting comment on reconsideration 22/7/0315 day comments/opposition 10 days replies MO&O (Decision on reconsideration) 24/3/04 * = days after Federal Register publication Note: Amateur radio issues are a low priority so timing is not typical

14. Petition for Rulemaking Proceeding initiated by outside request Many proceedings also started by FCC on its own initiative http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6005542747

15. FCC Asks for Public Comment on Petition http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6005545794

16. Petitions for Rulemaking Agency could dismiss without asking for comment but an explanation is necessary –For example, similar to a previous request or forbidden by law –Dismissal subject to possible reconsideration request and court appeal Agency could go directly to proposing rules without asking for comment on petition if need is clear

17. Notice of Proposed Rulemaking (NPRM) In this case grouped 3 parallel petitions Gives background, summarizes comments received, and makes proposal http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-136A1.pdf

18. NPRM Excerpts Petition description –“On July 24, 2001, ARRL filed a Petition for Rule Making requesting that we amend Parts 2 and 97 of our Rules to create a domestic secondary amateur service allocation in the 5250-5400 kHz band. ARRL claims that there is a current need for 150 kilohertz of usable spectrum around 5000 kHz for the amateur service, and that this action is needed to fill the ionospheric propagation gap between the propagation paths provided by the amateur service allocations in the 3500-4000 kHz and 7000-7300 kHz bands.”

19. NPRM Excerpts Comment discussion –“Eighty-seven parties filed comments to the 5000 kHz Petition; eighty-five of which support the request. 78 While not stating that he opposes the ARRL petition, Taylor indicates that the Commission should carefully investigate the allegation that propagation on 3500 kHz and 7000 kHz does not provide adequate coverage. 79 Similarly, Grant asserts that amateur radio operators should more efficiently manage their operations, and could thereby alleviate any interference or overcrowding problems in the existing 3500 kHz or 7000 kHz bands. 80” Footnotes cite specific comments

20. NPRM Excerpts Decision on what to propose –“A new allocation in the 5000 kHz frequency range would permit amateur service operations when other bands cannot be used. Therefore, we tentatively conclude that the amateur service would benefit from a secondary allocation in the 5250-5400 kHz band and propose to establish such an allocation. We request comment on this proposal.” Often specific questions are included for comment –“We invite comment on whether the power limit and operator license requirement are sufficient to prevent interference to primary users, and whether an EIRP limit would also be appropriate for this frequency band. We also invite comment on other means that will reduce potential interference.”

21. NPRM Excerpts Proposed Rule Changes - Not strictly required, but usually done for clarity States legal authority for FCC to make this rule

22. Report & Order/ Decision In this case a relatively simple amateur radio issue, but same process as more complex issues http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-105A1.pdf

23. Excerpts from Decision Discussion of Comments –“We received comments concerning the proposals for the 5250-5400 kHz band from 214 parties and reply comments from 9 parties. All parties but four support the proposal for a new secondary allocation in the 5250-5400 kHz frequency band for emergency communication and experimentation when the 3000 kHz and 7000 kHz bands are not available due to unfavorable propagation conditions.”

24. Excerpts from Decision Discussion of Comments –“Several of the commenters oppose an EIRP limit, and no commenter supports one. 44 The commenters are split on whether the band should be divided according to transmission types. 45 The group supporting sub-banding asserts that Amplitude-Modulated (AM) Single-side band (SSB) voice transmissions will cause interference to Continuous Wave (CW) and data transmissions and therefore these transmission types should be separated into different sub-bands. Those opposing sub-banding claim that much of the CW and data sub-bands in other amateur allocations are underutilized, and that many other nations are eliminating their sub- bands.”

25. Excerpts from Decision Discussion of Comments –“The National Telecommunication and Information Administration (NTIA) objects to the proposed 5250-5400 kHz allocation. NTIA states that this band is extensively used by federal agencies, and that they need immediate access to these HF frequencies in times of emergency. 52 ” –“To accommodate some amateur operations in this band, NTIA subsequently proposed that five specific frequencies, 5332 kHz, 5348 kHz, 5368 kHz, 5373 kHz and 5405 kHz, be made available to the amateur service on a secondary basis. 53 ”

26. Excerpts from Decision Decision –“We believe that frequencies in the 5250-5400 kHz range may be useful for completing disaster communications links at times when the 3 and 7 MHz bands are not available due to ionospheric conditions, and appreciate the desire of the amateur radio community to assist with disaster communications. At the same time, since the majority of the affected users are Federal Government licensees with homeland security responsibilities, we give considerable weight to the concerns NTIA has expressed about the potential for interference to these users. Thus, we conclude that it is not reasonable to grant ARRL’s original request for the whole of the 5250-5400 kHz band. However, as indicated above, NTIA has reviewed its assignments and has found that 5 channels are lightly used and could be used on a secondary basis by amateur stations.”

27. Excerpts from Decision Decision –“Accordingly, we are amending sections 2.106, and 97.303 of our rules to provide a secondary allocation to the amateur service on the channels 5332 kHz, 5348 kHz, 5368 kHz, 5373 kHz and 5405 kHz as specified by NTIA…” –“In addition, because we are permitting amateur stations to transmit on 5 discrete frequencies and limiting the transmission mode to single sideband only, dividing the band into smaller sub-bands to be used for other emission types is not practical or necessary.”

28. Excerpts from Decision Specific rule change given: (Full text not included in this presentation)

29. Basic Points As specific a proposal as possible is given in the consultation At each step comments are all reviewed, often grouped by those with similar viewpoints Explanation is given about why agency concurs with some and disagrees with others –All issues raised in comments are addressed –Agency fear of court review and possible remand is a major motivation Court can order agency to redo rulemaking if it did not follow due process

30. Reconsideration Request Reconsideration allows public to point out errors on issues not raised in consultation –Sometimes agency goes in new direction to avoid concerns raised in comments In this case request dealt with no new issues http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6514131421

31. Requesting Public Comment on Reconsideration Request As in most issues, public comment is routinely requested http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6514482209

32. Reconsideration Decision As before comments are all reviewed and agency decision explained with respect to them In this case, FCC found that no new issues were raised and kept original decision unchanged http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-71A1.pdf