November 18, 1998

The Honorable Larry Irving
Assistant Secretary for Communications
and Information
U.S. Department of Commerce
14th Street and Pennsylvania Avenue, N.W.
Washington, D.C. 20230

Dear Assistant Secretary Irving:

I am writing to commend you and the National Telecommunications Information Administration (NTIA) for the June 11, 1998, letter from William T. Hatch, Acting Associate Administrator of NTIA to Chairman William Kennard of the Federal Communications Commission (FCC). This letter effectively identified the efficiencies of the new and innovative time-sharing plan in which Federal spectrum was made available to new data-only commercial mobile satellite service providers (non-voice, non-geostationary satellite systems).

In 1993, as part of the Omnibus Budget Reconciliation Act, Congress amended the NTIA Organization Act with respect to the spectrum management activities of NTIA. This legislation grew out of bills that were approved by the Commerce Committee in 1990 and 1992 to promote more efficient Government use of the spectrum. In the 1993 legislation, Congress endorsed the sharing of spectrum by Government and non-government users, including sharing on the basis of geographical area, time, or by other means.

I am pleased to note NTIA's implementation of these provisions with respect to the so- called "Little LEO" proceeding (completed this year) constituted the first time that sharing on the basis of time has been considered and endorsed by both NTIA and the FCC.

Although the band plan permitting shared use was approved, it appears that the effort to coordinate and actually implement such use through the licensing process has not been properly handled by the FCC. Specifically, acting on delegated authority, the staff of the FCC's International Bureau has released a decision to grant a license to Final Analysis that denies critical elements of Final Analysis' amended application in reliance upon information not fully coordinated with NTIA. As noted in Mr. Hatch's letter:

Under the Commission's revised ex parte rules regarding issues of shared jurisdiction, information provided by NTIA to the International Bureau in this matter should have been disclosed and relied upon in the International Bureau's decision-making process only after advance coordination with NTIA about the timing and extent of any disclosure. Unfortunately, in this instance, this advanced coordination did not take place, and therefore, NTIA was not given an opportunity to indicate that the staff-to-staff correspondence did not represent final Federal agency views with regard to Final Analysis' requested amendments to its satellite constellation. 1

I am deeply troubled by the FCC's failure to coordinate properly with NTIA on this matter, and believe it raises serious procedural questions which Mr. Hatch correctly identified in his letter. In my view, the Government's coordination efforts should be based on complete information, and should not have occurred until after advance coordination with NTIA. This would ensure that the coordination effort would be based on the completed record, and the best available information regarding the potential for harmful interference.

I am hopeful that the Government's first attempt to coordinate Government and commercial frequency sharing on the basis of time is a success. In order to achieve that goal, I am writing to ask two things. First, Mr. Hatch's letter invites the FCC to inquire further of NTIA to ensure that the FCC is fully informed about NTIA's complete views on this matter. Please inform me of the status of this invitation, and your estimate of when it is likely that NTIA and the FCC will have completed this coordination. In addition, please advise me on the steps that NTIA has taken to ensure that it has a thorough understanding of the technical characteristics of the proposed system, and in particular that all of its assumptions that underlie the coordination are correct.

I look forward to hearing from you no later than November 25, 1998.

Sincerely,

JOHN D. DINGELL
RANKING MEMBER

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See Letter from William T. Hatch, Acting Associate Administrator, NTIA, to Chairman William Kennard, June 11, 1998 (citation omitted).

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