Zero Bias: December 2004

The Public Interest,
Convenience and Necessity

All things considered, the FCC probably made as good a ruling as anyone could have expected on Broadband over Power Lines - BPL - (see article, pg. 13). And that’s what’s really troubling.

Since its establishment in 1934, the Federal Communications Commission has been guided in its decision-making by a legal requirement to act in the “public interest, convenience and necessity.” That standard has been eroding in recent years throughout the federal government, and the BPL decision reflects just how far the FCC and other federal regulatory agencies have strayed.

Ever since the days of the “robber barons,” those 19^th-century oil, steel and railroad magnates who let nothing stand in the way of their businesses’ expansion, Congress has realized that some amount of regulation is required to protect the public from excesses of large industries and special interests. In the first half of the 20^th century, a variety of so-called independent federal regulatory agencies were formed, including the FCC. The goal was to protect these agencies – and thus the public – from undue political and special-interest pressure by limiting how many commissioners could belong to one political party, and by requiring that the commissioners be appointed for specific terms, rather than serving at the pleasure of the President, which is the case for the heads of departments in the Executive Branch. The President appoints the commissioners and designates a chairman, and Congress has to approve their budgets, but beyond that, these agencies are supposed to be independent in their decision-making, and their decisions are supposed to be made in “the public interest, convenience and necessity.” To do this, the agencies hired top technical experts in their fields and relied heavily on their guidance in making decisions.

The model worked pretty well for quite a long time. But in the past 20-25 years, the landscape has been changing as “deregulation” has become a dominant theme in the federal government. To be sure, many agencies, including the FCC, had gotten to the point of micromanaging the industries and services they regulated and some of those regulations were impeding legitimate progress. However, as the number and significance of the actual regulations began to fall, so did the need for quite so many technical experts, and as they retired, they tended to be replaced not by other technical experts but by lawyers who often did not really understand the fields they were responsible for regulating. At the FCC, for instance, you have plenty of experts in communications law, but a shrinking number of experts in communications technology. The result is that the decision-makers no longer know when they’re being fed a line of bull by industry representatives, as was the case with BPL, and no longer have sufficient staff with expertise to point out technical flaws (and occasionally, impossibilities).

On top of that, the independence of the so-called independent agencies is eroding. Agencies originally charged with protecting the public from excesses of regulated industries and special interests now seem to see their primary mission as protecting the industries they are supposed to regulate. This is not something unique to the current administration. The only thing that changes the occupants of the White House is which special interests are being promoted. In the case of BPL, it has been clear not only that FCC Chairman Michael Powell has been an active proponent of the technology (despite the fact that regulators are not supposed to promote any one particular technology), but is echoing support from the White House as well. Any doubts about that were dispelled when the National Telecommunications and Information Administration – part of the Commerce Department and the FCC’s “mirror image” for federal government frequency assignments, released its technical study on BPL.

The NTIA technical folks determined that there would likely be considerable interference, not only to hams but to aircraft, military and public safety communications, and that the methods proposed for measuring interference were insufficient. Within days, the political folks in the upper echelons started backing down, softening the recommendations and coming "thisclose" to making policy recommendations that directly contradicted their own agency’s technical findings. It’s also clear that, on issues of interest to the White House, FCC Chairman Powell doesn't make a move without its approval.

But again, this is not unique to the current administration. It was long before the current President took office that someone came up with the brilliant idea to raise billions of dollars for the treasury by selling off chunks of the electromagnetic spectrum (I bid $3 billion for the 470 nanometer band -- once I own it, anyone using the color blue will have to pay me royalties!). One can no more own a particular frequency than one can own a layer of the ionosphere. But that hasn't stopped the FCC under multiple administrations from running dozens of spectrum auctions.

Again, one of the historic reasons for the existence of federal regulatory agencies is to assure the proper stewardship of public resources, whether it’s a national park, a national forest or the electromagnetic spectrum. Selling off what you’re supposed to be protecting is hardly proper stewardship. Nor is sacrificing the entire HF spectrum in order to provide the promise of an unregulated revenue stream to the power companies. Pressure from hams and other spectrum users prevented the FCC from going this far … maybe. We'll have to see what really happens when we face the reality of trying to get BPL interference problems resolved.

Regardless of who wins the election for President (we should know by the time you read this – I’m writing it two weeks before Election Day), we all need to start reminding the President, Congress and the FCC that the FCC’s job is to protect the public interest, not to promote special interests.

Happy Holidays!

From all of us at CQ to each and every one of you, we hope your holidays are happy, healthy and safe.

73, W2VU

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