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Mr. Chairman, distinguished
Members of this Subcommittee, I am honored to be invited to testify before you
today – thank you very much.
Mr. Chairman, I would like to
request that a copy of my complete remarks be entered as part of the record.
I would like to start out by
recognizing the distinguished public servants who sit on the panel.
I am fortunate to be appearing in the company of our nation’s experts
on spectrum management. We worked
closely with the Federal Communications Commission (“FCC”), National
Telecommunications Information Administration (“NTIA”) and the Department of
Defense (“DOD”) throughout the UWB approval process.
I respect Julie Knapp, Mike Gallagher, and Steven Price and they deserve
praise for their work on this difficult issue.
While we may have had differences at times during the first phase of the
Ultra Wideband (“UWB”) approval process, these gentlemen worked very hard on
the difficult and thankless task of UWB regulatory approval.
At times, they faced tremendous pressure from within their own agency or
department, other agencies or departments, and parts of the private sector, yet
they fought hard to find a way to respond to the participants in the process and
approve UWB. Their efforts have resulted in the first step in the UWB
regulatory approval process.
Mr. Chairman, Members of the
Subcommittee, while you may hear different views from the distinguished
panelists today on specifics surrounding the UWB approval process, I believe
there are two points on which everyone will agree.
First, we are pleased the First Report & Order was adopted. It is an historic first step for a technology that will bring
life-saving and other benefits to the public.
Second, our spectrum management process can be improved to promote,
rather than delay important new technologies.
Our current process takes too long to evaluate and approve new
technologies. The path to UWB
regulatory approval took more than 13 years, including three and one half years
of regulatory proceedings. This is
far too much time, if new technologies are going to have any chance of getting
to market. Too often government
agencies and commercial interests act based on spectrum politics, rather than
spectrum policy-making. There needs
to be objective oversight in areas such as testing and technical analysis that
can form the basis for sound spectrum policymaking. Finally, there are often inherent conflicts within and
among the government entities involved in spectrum management that diminish
their ability to function independently. If
we do not improve our process of spectrum management, we will fall behind the
rest of the world in deploying new technologies.
This morning, I would like to
briefly cover the history of the UWB proceeding, quickly discuss what the
FCC’s First Report & Order means for industry and the public, and then
discuss in greater detail some of the challenges in the regulatory process that
we faced as a company seeking regulatory approval.
I.
Brief History of Time Domain Corporation and its Breakthrough Ultra
Wideband Technology
A.
History of Time Domain
Time Domain’s UWB technology
was discovered in 1974 by the proverbial inventor in his garage -- an Arkansan
named Larry Fullerton. While in
college, one of Fullerton’s engineering professors challenged his class by
telling them that pulses of the kind now used by Time Domain could not be sent
through an antenna. Larry Fullerton
thought the professor might be wrong. After
years of experimentation, Fullerton succeeded in sending pulses that transmitted
radio programming across his workbench in Huntsville, Alabama.
Fullerton’s discovery
remained hidden from the rest of the world for many years as he toiled away in
near obscurity. Many of the people
with whom he shared his discovery told him that what he claimed the technology
could do simply could not be done. Fullerton
did not have the money to develop the technology for commercial deployment, so
he used whatever money he could scrape together to file patents on his
technology and build crude functioning prototypes.
After receiving his first
patent in 1987, Fullerton founded Time Domain, with a goal of building more
support for his discovery and, ultimately, commercializing the technology.
While some progress was made in this regard, particularly in terms of
further technology development and acquiring additional patents, Time Domain
remained a struggling small business for many years.
By 1995, Fullerton had 15
patents and had built 22 prototypes, including: radar devices that could detect
motion through walls, “see” underground, and create security bubbles to
determine the exact size and shape of an object penetrating the bubble; location
and tracking devices that worked like GPS, except that they did not need
satellites, worked underground and indoors where GPS could not go, and were
accurate to approximately two centimeters; and communications devices that could
wirelessly send digital video through walls.
In 1996, the Petroff family,
who had been involved in NASA programs and several successful start up
technology companies recognized that Fullerton had potentially discovered a
once-in-a-generation technology. The
Petroffs did a year’s worth of due diligence on the technology and the patents
and concluded that: (1) Fullerton had excellent patent coverage on his UWB
technology; (2) the UWB technology worked and had the potential to be a
fundamental technology; and (3) the technology was enabling in that it could
create entirely new products and even entirely new industries.
The Petroffs proceeded to make a significant multi-million dollar
investment in Fullerton’s company and, convinced of the technology’s
significance and potential, joined the company as its management team.
By 1998, there was still no
movement on obtaining regulatory approval and the Petroffs had supplemented
their initial investment with a substantial portion of their net worth.
In order for the company to remain solvent, the CEO was forced to take
out a mortgage on his house. Then,
the technology community and press began to discover UWB technology, writing
stories that described a technology that could potentially change the world, and
investors began to invest in the company.
Today, Time Domain has
attracted the attention of corporate America and financial investors, including
a number of Fortune 500 strategic investors and more than a dozen venture
capital investors. The company is
working on its third generation chipset and has more than 240 patents filed or
granted. The company has completed
or is currently working on more than 50 government contracts, most of which are
for the Department of Defense. The
IEEE, the governing body for standards setting in the engineering world, is
working on a standard for UWB for consumer products.
The military is using UWB technology in more than 100 programs.
B. Time Domain’s Ultra Wideband Technology
UWB technology is different
from existing radio. It does not
use an assigned carrier frequency, nor does it employ sine waves using
traditional concepts such as amplitude or frequency modulation.
Instead, Time Domain’s technology uses extraordinarily brief pulses –
from 40 million to a several billion a second.
These pulses emit very low energy, similar to the energy emitted by a
Part 15 device such as a laptop computer. As
you know, Part 15 devices are not licensed. They operate at very low power and may not cause harmful
interference to other radio services. To
put this in context, a UWB device emits about 1/10,000th the power of a cell
phone.
We initially approached
regulatory approval believing that because our technology met the Part 15 rules
regarding emissions levels, UWB would be approved to operate under those same
rules. The final rule does not allow UWB to operate at Part 15 power
levels in key parts of the spectrum, but at power levels more than 2000 times
less than Part 15 devices such as laptop computers.
UWB is permitted to operate at Part 15 power levels in spectrum above 3.1
GHz. The FCC indicated, and we
agree, that this very conservative decision should be revisited in coming
months.
Time Domain’s UWB technology
produces vastly reduced wave cancellation from multipath distortion of the sort
that plagues conventional radio systems. This
enables incredible efficiencies and several orders of magnitude improvement in
three areas: communications, radar, and position-location-tracking.
This technology is unique in that all three of these capabilities can be
fused into a single chipset. Time
Domain’s business model is to design the chipset, which the company’s
strategic partners will then integrate into their own products to bring
substantial new benefits to consumers, businesses and government.
II.
The FCC’s First Report & Order:
What Does It Mean For Industry And The Public?
We agree with the FCC’s
public statements that the First Report & Order is a very conservative first
step. If you examine the text of the First Report & Order, the
word “conservative” appears 30
times, the word “cautious” appears 11 times, and the word “limited”
appears 36 times. Despite being a
cautious first step, the First Report & Order will permit some applications
of UWB technology to reach the market and benefit the public.
Other applications of the technology that would have been possible will
have to wait for a reexamination of the limits set forth in the First Report
& Order.
What will the public see in the
short to medium term from UWB? The
first market where we believe the public will see UWB products is for personal
area networking (“PAN”) -- or connecting consumer electronics and personal
computers in the home and office. UWB
can provide wireless connectivity among camcorders, PCs, DVD players, flat
screen television displays, digital cameras, printers, MP3 players and other
digital devices. UWB’s ability to
transmit very high bandwidth over short distances offers wireless connectivity
for multimedia applications that no other technology can provide. Devices with UWB will consume low power enabling the
technology in hand held devices and preserving these devices’ battery life.
UWB will be priced low enough for equipment manufacturers to include the
technology in their consumer electronic products.
Finally, because of UWB’s use of spectrum, it can co-exist with other
technologies without causing or receiving interference like other technologies
operating in unlicensed spectrum. The
IEEE is working on a standard for UWB in PAN and large consumer electronics
companies such as Motorola, Sony, Intel, Phillips, Panasonic, Intersil, and
Kodak are supporting the effort. We
expect products with UWB for the PAN market to be on store shelves as early as
the end of 2003.
The second market where we
believe the public will see products in the near term is for automotive radar. While Time Domain does not work in this area, we are aware
that Daimler Chrysler and other companies have performed considerable work on
automotive radars operating in the 24 GHz frequencies.
We believe that Daimler Chrysler has a working demonstration of a 24 GHz
radar for automotive collision avoidance sensors and is actively developing
products for this application using UWB.
A third market where we believe
the public will see product shortly is in the applications for ground
penetrating and through-wall radar. I
am less qualified to talk about GPRs than our panelist, whose company has worked
with this application of UWB for many years.
As I am sure he will recount, they have been used for years by public
safety and law enforcement personnel, and others.
Similar to ground penetrating radar, Time Domain has developed a
through-wall imaging radar device under military contract called RadarVision for
the military, police, firefighters and rescue workers.
This may allow, for example, police to determine the location of people
on the other side of a door; firefighters to determine in what room a victim
might be located in a burning building; and rescue workers to locate under
earthquake rubble where a survivor may be alive simply by detecting breathing.
Time Domain’s RadarVision 2000 product will be ready for deployment in
October this year. Time Domain has
successfully demonstrated the prototype product at major law enforcement
agencies including, the Fairfax County Rescue Squad and the Dade County Search
and Rescue team, two of the top organizations in the country that respond to
earthquakes to rescue victims.
Time
Domain has had a waiver from the FCC to deploy a limited number of its
Radarvision products. The FCC’s
First Report & Order extended the duration of the waiver for an additional
year. However, like the GPR
community’s ground penetrating radar, Time Domain’s through-wall radar would
not be able to achieve full functionality under the rules set forth in the First
Report & Order absent the extension of the waiver.
Under the current rules, these devices would be able to be used by the
military and federal, but not state and local, law enforcement and public safety
personnel. Given that there will
only be a limited number of these devices, operated by trained life-saving first
responders, we urge the FCC and NTIA to revisit this issue as quickly as
possible so these devices can save lives in the hands of state and local safety
personnel, in the same manner as they will in the hands federal users.
I hope this is one change to the FCC rules on which we can all agree.
III.
Potential Long Term Benefits
of UWB Technology to the Public
How can UWB benefit the public
over time? UWB has the potential to
enable entirely new wireless applications and products, and to make significant
advances in critical areas such as public safety, aviation safety, military
effectiveness, medical applications, and communications.
UWB enables radar with superior
clutter rejection and much higher resolution than traditional radar, achieving
range resolutions of less than six inches.
This facilitates new short-range radar applications such as
“through-walls” radar and radar that can “see” underground; security
bubbles and electronic security fences that can tell the exact size and shape of
an object penetrating them; and sensors for “smart” airbag deployment.
The military is evaluating UWB radar technology for terrain mapping to
aid in the location and removal of landmines.
Time Domain’s UWB technology
enables precise-location-tracking applications that complement GPS by providing
relative position information to enhance the absolute position information
provided by GPS. UWB technology can
provide position information indoors, underground, in urban canyons, and under
foliage where GPS often cannot provide position information. The positioning information from UWB is accurate to within
two centimeters. Thus, UWB can
complement GPS by extending the reach of GPS locally indoors, underground, and
in urban canyons based upon the last GPS reading.
The applications for this functionality are numerous.
UWB can be used to track which workers enter sensitive areas of
hospitals, nuclear plants, and military installations.
The technology can be used to track assets such as mobile, life-saving
equipment in hospitals, packages and containers in a factory or warehouse, or
objects in the home. The military is currently evaluating the technology to
solve one of their most difficult problems – the precise location and tracking
of soldiers in urban combat and training exercises.
A number of firefighters and
other first responders urged the FCC to allow public safety use of UWB for
tracking personnel, for example, tracking firefighters inside a burning
building. If this tracking use were permitted in the future, it could
be combined with communications functions to provide a dramatic improvement in
firefighter safety. While we are
not engaged in this business, we urge the Committee to support the approval of
these public-safety tracking applications when the FCC reexamines the rules in
six to twelve months.
In the area of communications,
UWB can provide very high bandwidth, hundreds of megabits per second, at very
short distances. In time, UWB will
enable ultra high-speed indoor wireless networks across many devices for the
true “smart” home and office.
IV.
The Regulatory Approval Process for UWB: Lessons Learned
A.
History of UWB Proceeding
Time Domain began its quest for
regulatory approval in 1989 when Larry Fullerton made his first visit to
Washington, DC to the FCC. I would
like to briefly summarize the process because I believe it demonstrates a number
of ways that it could be improved. During
the subsequent early years after Larry’s first visit, and even later, Time
Domain met with FCC officials to move the regulatory approval process for UWB
forward. In 1992, a predecessor
company that later merged with Time Domain filed a request for a pioneer’s
preference at the FCC which was denied that same year.
In 1994, the FCC granted Time Domain a special temporary authority to
test UWB and Time Domain voluntarily filed its testing data to speed up the
regulatory process. In 1995, the
company filed comments in the UNII proceeding urging the FCC to approve UWB.
In 1996, Time Domain presented an overview of UWB technology to the
FCC’s Office of Engineering Technology.
During the first half of 1997,
Time Domain met with FCC labs and OET staff approximately a dozen times.
In April 1997, Time Domain demonstrated UWB to the Interdepartmental
Radio Advisory Committee (“IRAC”) at NTIA and discussed intentionally
radiating into the government bands at Part 15 level power. In September 1997, Time Domain demonstrated its
technology for the FCC Office of Engineering Technology “(OET”), FCC labs,
NTIA, and ITS labs staff.
In February 1998, Time Domain
filed a request for a waiver of Part 15 rules to permit operation of a limited
number of Radarvision devices for public safety and law enforcement personnel. 14 law-enforcement, defense, public safety, and
counter-terrorism entities file comments in support of granting the waiver.
No party filed comments in opposition to the granting of the waiver
request during the comment period. From April 1998 to March 1999, Time Domain
attended approximately 25 meetings with the FCC to discuss UWB technology.
On June 30, 1998, OET wrote a letter to the Office of Spectrum
Management, NTIA, tentatively concluding that Time Domain’s waiver request is
“ripe for grant subject to coordination with NTIA.”
In September 1998, the FAA
Administrator’s office voiced strong opposition to the use of UWB devices,
claiming in a letter to the NTIA Administrator and the FCC Chairman that a
proliferation of UWB devices could pose potential safety problems due to
interference with avionics and navigation units.
During the next several months,
Time Domain repeatedly met with FAA officials.
On May 11, 1999, the FAA Administrator writes a letter to the FCC
Chairman in which she agreed to remove FAA’s objections to Time Domain’s
request for waiver. On June 15,
1999, nearly a year after Time Domain first filed its waiver request, NTIA
indicated that the FCC could grant the waiver for use of 2500 units with nine
conditions on the use of the devices. On
June 29, 1999, the FCC granted the waiver requests from Time Domain and two
other companies with the NTIA conditions attached.
In August 1999, Professor Per Enge, on behalf of the GPS Industry
Council, filed a petition for reconsideration of the grant of the waiver
requests. In September 1999,
Professor Enge withdrew his petition for reconsideration of the grant of the
waiver requests.
On September 1, 1998, the FCC
issued a Notice of Inquiry on UWB technology.
From August to November of 1999, Time Domain worked with NTIA’s ITS
labs to develop a test plan for testing UWB with GPS systems.
On December 1, 1999, after four months of working with ITS engineers on
the test plan, NTIA staff oppose moving forward with testing and the plan is set
aside. On September 29, 1999, the
Ultra -Wideband Working Group sponsored the first international Ultra-Wideband
Conference in Washington, D.C. Representatives
from more than 14 countries attend, and the Working Group expands to more than
75 members. FCC Commissioner Susan
Ness delivered the keynote address in which she calls on the FCC and NTIA to:
(1) issue a Notice of Proposed Rulemaking on UWB within a few months; (2)
complete a rule making on UWB by the end of the year 2000; and (3) conduct joint
testing with government users and industry participants concurrently with the
rulemaking process.
On
December 5-6, 1999, Time Domain
learned that the Department of Transportation planned to sponsor a meeting at
Stanford University to discuss testing for potential interference of UWB with
GPS. On December
7, 1999, representatives of Time Domain attended the DOT/Stanford
University meeting as uninvited participants.
At the meeting, Professor Enge presented testing results that purport to
show that UWB devices cause harmful interference with GPS devices.
As part of his presentation, Professor Enge performed a demonstration in
which he places a UWB device operating at higher power levels than Part 15 in
proximity to a GPS receiver to demonstrate interference.
Representatives of several of the airlines are in attendance at the
meeting. On December
21, 1999, the Air Transport Association circulated a draft letter for
Members of Congress to sign to William Kennard, Chairman of the FCC, expressing
concerns over UWB technology.
On May 11, 2000, the FCC
released its Notice of Proposed Rulemaking on UWB.
During the remainder of 2000 and the first half of 2001, NTIA, the
Department of Transportation and Stanford University, and the University of
Texas and Johns Hopkins University conducted compatibility studies and analysis
between UWB and other radio services. Interested
parties filed hundreds of comments on the test results and other issues in the
FCC docket during this period.
On November 20, 2001, Deputy
Secretary of Defense Wolfowitz sent a letter to Secretary Evans urging the FCC
to delay its pending December decision on UWB.
On December 11, the FCC pulled the UWB item from its December 12, 2001
meeting agenda citing a request of the Commerce Secretary.
On February 14, 2002, the FCC
adopted the First Report & Order in the UWB proceeding.
On March 20, 2002, Deputy Secretary Wolfowitz sent letter to Secretary
Evans applauding his efforts in ensuring that the FCC’s UWB decision contained
sufficient safeguards to protect spectrum dependent military systems.
On March 15, 2002, Deputy Assistant Secretary Gallagher sent a letter to
Chairman Powell indicating that the government users may not be required to
follow the rules in the First Report & Order for use of UWB.
B. The Process for Approving New Technologies
Takes Too Long
It took 13 years, including
three and one half years of intensive efforts, to gain regulatory approval for
UWB. I personally made
over 100 trips to Washington since 1996 to meet with regulators, and we spent
several million dollars seeking regulatory approval.
Often I am amazed that we are still in business.
Fantasma Networks, the second largest UWB company that was backed by
Intel and Paul Allen’s Vulcan Ventures, went out of business last year waiting
for regulatory approval. Without the ability to earn revenue from government contracts
with the Defense Department, we would have gone out of business years ago
waiting for regulatory approval.
In today’s difficult business
climate, early-stage companies have trouble raising capital to sustain their
businesses. Unlike the mid and late
1990’s when capital was plentiful, companies today have less operating capital
and thus shorter timelines to get their products to market.
No company or industry is going to be able to wait several years for
regulatory approval. There must be
a way to shorten this process, so that new technologies have a chance to get to
market.
C. Conflicts
Between Government Agencies on Spectrum Management
The UWB proceeding may have
been unusual in that it involved both government and commercial spectrum and a
large number of incumbent users of spectrum.
However, there are other issues, such as 3G, where this dynamic exists
and there are likely to be more such issues in the future.
The legal requirement as I understand it, is that the FCC and NTIA must
“coordinate” on issues affecting commercial and government spectrum.
Throughout the UWB regulatory approval process, it appeared as though the FCC
and NTIA had difficulty coordinating the views of the government and commercial
users of spectrum, as illustrated by a few examples below.
It took NTIA nearly a year to
obtain internal sign off by government users of spectrum to approve with
conditions the requests for waivers submitted by Time Domain and other
companies. This despite the fact that the devices requested by Time
Domain were lifesaving instruments for public safety and law enforcement
personnel, and all 2500 devices requested, if operating together in a single
room, would emit less than one quarter the power of a cell phone.
The FCC and NTIA had a very
difficult time agreeing on the final wording of the order on reconsideration of
the waivers. The petition for
reconsideration still had not been dealt with at the time the FCC issued its
Notice of Proposed Rulemaking, nearly a year after the FCC first approved the
requests for waivers. The FCC was
sufficiently concerned about its coordination efforts with NTIA that in its
final order dismissing the petitions for reconsideration, Commissioner
Furchtgott-Roth expressed his views on the FCC interaction with NTIA on the item
as:
.
. . an unacceptable distortion of the appropriate consultative role that NTIA
should play in our decision making. Although the FCC and NTIA have a legitimate
obligation to coordinate their activities regarding shared spectrum, NTIA’s
intrusive role in this proceeding is a source of concern for all of us who value
the independence of this Commission. Repeated
NTIA editing of orders after adoption undermines our independence and the
integrity of our processes. No other entity had repeated opportunities to review
drafts of our decision. No other entity was able to “sign off” on edits from
Commissioner offices. Equally
important, neither the public, the parties, nor many of the Commissioners were
aware that this “process” was even going on.
The process was not transparent or even discernible. Those regulated by
the Commission have a right to know that FCC decisions are truly FCC decisions.
When an item sits for five months after adoption, it turns our voting
process into a sham.
Once
the staff has a complete record and develops its final recommendation for the
Commission, NTIA should not be provided with additional drafts or have “sign
off” authority on revisions. The
circulated Order should be the sole province of the Commissioners and the staff.
NTIA has every right to be heard, but no right to edit every word.
The FCC may have found itself
in a difficult position evaluating test results for compatibility between UWB
and other systems when one of the major testing efforts was performed by NTIA.
The raw data of the different tests were very similar, although the
interpretation of data varied to produce different “results.”
It appears as though the FCC did not have the resources to conduct its
own independent testing.
It appears as though the FCC
and NTIA may have had difficulty agreeing on the rules for UWB in the First
Report & Order. As reported in
the trade press, the FCC appeared ready to adopt rules for UWB in December of
2001 that reportedly were significantly less restrictive than the rules
ultimately adopted by the agency. As
a result of strongly worded, public letters from high level officials at the
Defense Department to the Commerce Department, and the Commerce Department to
the FCC, adoption of these rules was postponed for 60 days to provide the
Department of Defense additional time to submit their comments to NTIA.
The proceeding had been ongoing for more than three and one half years at
this point. During the 60-day
delay, it appears as though the rules for UWB became more stringent as the FCC
strove to achieve the requisite consensus with NTIA on the rules.
While conflicts between
agencies are nothing new, the conflicts in the UWB proceeding in large measure
revolved around spectrum politics, not policy.
This resulted in a lack of objectivity in interpreting technical data
that made reaching sound policy decisions more difficult.
D.
The Regulatory Process Should Rely on Sound Spectrum Policy, Not Spectrum
Politics
In 2000, I had the opportunity
to visit with David Hendon, the head of the Radio Communications Agency in the
UK, the British equivalent to our FCC Chairman Powell.
The U.K. had just finished their spectrum auctions for 3G licensees and
taken in more than 40 billion dollars. Mr.
Hendon remarked that the North Atlantic oil rights had sold for several billion
dollars in the 1970’s, and, in inflation adjusted terms, the sale of spectrum
in the U.K. had fetched an even higher price, perhaps making it the most
valuable commodity on the planet. I
think few would disagree with him that spectrum has become the most valuable
commodity on the planet today for governments and commercial users.
Not only is spectrum a limited commodity, but there is a finite amount of
this valuable resource so that all spectrum decisions are part of a virtual zero
sum game: when one player gains another player almost always loses.
The battles over the last several years between government users and
commercial are a good example of this phenomenon.
When spectrum was reallocated from government users to auction for
commercial use, government users had to find new spectrum for their services.
The zero sum game creates an incentive for spectrum users to oppose all
spectrum actions that might harm their interests, and even those actions that
are neutral or the effect of which is unknown.
The lowest-cost, rational action is to oppose all spectrum management
proposals that do not directly benefit your position.
This is true whether the actor in question is a government agency or a
commercial user. So even when we
proposed a use of spectrum that would not require any incumbent to move and
efficiently shared spectrum under Part 15, there was no incentive for either
commercial or government operators to support this new technology.
The Congress relies on the FCC
and NTIA for spectrum management policymaking based on scientific analysis and
objective assessment of competing needs and interests.
In the UWB proceeding, spectrum politics, rather than sound policymaking
often dictated the course of decision making.
For example, there were three major testing efforts conducted on GPS and
UWB compatibility: one by Stanford University / DOT, another by NTIA, and a
third effort funded by Time Domain and conducted by the University of Texas and
Johns Hopkins University. The
results of the three tests differed greatly from finding that there was no
harmful interference to GPS until the UWB devices were within one meter of each
other to finding harmful interference at greater distances. The Department of Defense Joint Spectrum Center analyzed the
test data and found that the data were very close on all tests.
What differed among the three tests was the interpretation of the data
based on assumptions applied to the data about how UWB and GPS devices would
operate in the real world and the scenarios for UWB and GPS interaction.
Parties used assumptions and scenarios that would produce the results
they sought. This phenomenon
was not limited to the GPS testing. The
same dynamic occurred with the PCS testing.
In the absence of agreed upon joint testing and analysis by the NTIA, the
FCC, and commercial and government users, there needs to be an objective way to
evaluate the different test data, the assumptions, and scenarios.
Otherwise, parties will simply spin technical data to their advantage
without sound scientific basis for their positions.
After the FCC requested parties
in its NPRM to submit compatibility data, Time Domain spent millions of dollars
funding the University of Texas and Johns Hopkins University, two of the top GPS
facilities in the country, to conduct testing under their independent control.
The test plan was created through an open process in which numerous
parties participated, including UWB opponents.
In the final analysis in the Report & Order, the UT/JHU test data was
almost entirely ignored. Whether
this occurred because an interested party funded the test, or the results
disagreed with preconceived philosophical positions is open to debate.
If privately-funded tests are going to be dismissed, then the government
needs to have the capability and the mission to test objectively and
independently of even the government's own, internal interested constituents.
E. Conflicts Within
Government Agencies
The Commerce Department plays a
critical role in promoting new technologies and advising the President on
technology and telecommunications issues. The
Commerce Department, through NTIA, also plays an important role in managing the
spectrum used by federal agencies and departments.
When it comes to spectrum management issues, these two roles may
conflict, as they did in the UWB proceeding.
The Commerce Department may want to promote new technologies to save
lives, benefit the public, and help the economy, but it also must protect the
spectrum of its government users. When
these two missions conflict, the likely losers will be the commercial interests
seeking to promote new technologies. In
the case of UWB, for example, the Office of Spectrum Management within NTIA
played a large role in the proceeding, while the Technology Administration did
not participate. This is
understandable, as the Commerce Department’s government agency constituents
may claim that national security and public safety demand that their spectrum be
protected at any cost. There is no
question that government spectrum should be protected, as there are lives that
depend on this spectrum being free from harmful interference.
However, the question is who should make the determination as to whether
there is a threat to the government spectrum, and how to balance the possibility
of any effect on government spectrum with advancing new technologies?
Today, the NTIA and the FCC
coordinate their views and make these decisions jointly.
However, when it comes to spectrum management, the government is an
interested party -- it holds spectrum, fights to maintain its spectrum, and
seeks to acquire additional spectrum. At
the same time, however, the government also sits in judgment of what spectrum
can be made available to non-government users.
It is in effect operating as a party to proceedings and the judge of
those very same proceedings.
The potential conflict of
interest inherent in such an arrangement is obvious on its face.
However, it goes one step further. Since
the release of the First Report & Order, government agencies have been
debating whether government users of UWB have to follow the same rules that the
government has imposed upon non-government users.
Paragraph 273 of the First Report & Order suggests that government
users might have to follow the rules set forth in the First Report & Order.
However, the Commerce Department has informed the FCC in a letter last
week that they do not believe this to be the case. It appears as though Commerce was acting in its role as
judge, rather than a party to the proceeding in informing the FCC of this
position.
These conflicts are not unique
to UWB. They have occurred in the
past. They will occur in the future
over issues such as 3G. In any
proceeding in which the government is both an interested party due to its need
to protect and increase its spectrum and arbitrating the rights of
non-government users to spectrum it cares about, there is a potential conflict
of interest. This potential
conflict is heightened by the fact that the government does not have to reveal
its views and role in shaping a proceeding to the same extent as non-government
participants.
Throughout the process we met
frequently with the FCC and NTIA, and on a few occasions with DOD, NASA, and the
FAA. At least one agency, even took
pride in what they stated as an “open door” policy.
However, while the door may have been open, the information from
government agencies was not always forthcoming. The NTIA, for example, took the stance that they would meet
with us and listen to our viewpoint, but they could not provide any information
on their position, nor respond to any information we presented.
It is difficult for commercial users to know what issues may exist with
their proposed use of spectrum that impacts government spectrum or respond to
proposals generated by government agencies without openness.
This is not an issue when NTIA is making a decision that only affects
government users of spectrum. In
those instances, the issue is debated before the IRAC and a position reached. However, when NTIA is making a decision that affects both
government and commercial users of spectrum, secrecy often prevents
non-government users from commenting on information that directly affects them.
IRAC proceedings are generally closed to non-government entities, even
when the issues debated concern NTIA’s views on non-government use of
spectrum.
The
FCC conducted a proceeding in which contacts with the agency were permitted, but
were required to be disclosed on the record in the FCC docket.
There were more than 900 comments filed in the first phase of UWB
proceeding. However, government as
a commenter to the FCC did not need to comply with the ex parte rules, and sent
letters and filings to FCC that were not made public before the decision.
It was very difficult for interested parties in the proceeding to assess
these filings or rebut them. Perhaps more disturbing, the government sent
letters to the FCC saying their studies supported conclusions of interference,
but they did not submit the studies. This
prevented any evaluation or critique of these claims by parties to the
proceeding.
V.
Conclusion
There
is a worldwide race to deploy UWB. Since
FCC approval of UWB, startups have sprouted up in Europe, the Middle East, and
Asia. Europe and parts of Asia are
moving quickly to approve UWB for commercial use.
Some countries, such as Singapore, are examining approval UWB at higher
power levels than the levels set forth in the FCC’s First Report & Order.
While these parts of the world may be the first countries to enjoy the
full promise of UWB, this is an undesirable outcome.
UWB was invented in the United States and the U.S. should enjoy the
benefits of the technology and retain technological leadership in UWB.
The
United States’ future with UWB and other new technologies depends on an
efficient system of spectrum management. Our
regulatory processes must operate in a timely manner in which the agencies
charged with spectrum management collaborate to advance the deployment of new
technologies, while protecting the rights of incumbents.
Our proceedings must operate according to science, not spectrum politics.
And the public needs to have some information on the positions government
agencies are taking with regard to spectrum decisions that affect non-government
users. Our global economic competitiveness depends on it.
I
hope that some good will come from the process we went through with UWB
approval, so future technologies will have an easier path through the regulatory
process. Perhaps the lessons
learned from UWB approval can help improve our spectrum management process to
better advance new technologies, while protecting spectrum incumbents.
Mr.
Chairman, thank you for allowing me to testify.
I would be happy to answer any questions.
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