Wednesday, July 29, 2015

Senate Testimony: Risk-assessment, harm claim thresholds and adjudication

I testified today before the Senate Commerce Committee hearing on “Wireless Broadband and the Future of Spectrum Policy.” My written testimony is here; this is the summary I presented during the hearing. I’ve posted some Q&A in a subsequent post. My remarks are recorded in the archived webcast, starting at 58:02; see also a question from Chairman Thune and my reply starting at 2:05:43.

There is no need to rehearse the boom in wireless services and technologies, and the incredible opportunities of using spectrum. I have come to believe that the promised spectrum bonanza will much reduced if government doesn’t create tools to respond to the unprecedented diversity and crowding in spectrum.

The more we squeeze services together in frequency, space and time, the greater the cost of unwise spectrum allocation, and the greater the risk of service failures due to harmful interference. The problem is not unlike that of a booming city that must make room for more and more traffic of all shapes and sizes—pedestrians, bicycles, motorbikes, cars, trucks, buses, etc.—at the same time that real estate values are exploding and space is at a premium.

The growing variety, intensity and dynamism of spectrum use requires that regulators make initial rules wisely, and that we find ways to shift routine spectrum management—like rule adjustments and dispute resolution—from regulators to users.

My written testimony details three important steps that I’m convinced will help deliver on the promise of spectrum. Each addresses a different stages of the spectrum life-cycle:

1. When planning new allocations, the FCC and NTIA should move away from worst case interference analysis and use risk-informed methods that consider not only the consequences but also the likelihood of harmful interference.

2. When issuing operating rights, regulators should be clearer about operators’ interference rights and obligations by specifying harm claim thresholds. The FCC typically doesn’t define rights and obligation very clearly; the ambiguity helps to prevent any possible interference. This made sense when spectrum rights were not in such great demand. It is not tenable given the crowded spectrum bazaar we now face. Harm claim thresholds are good fences, and they will make for good neighbors.

3. When in the middle of interference disputes, any spectrum user should have the option of taking action directly against any other, either in front of an FCC judge or in a federal Court of Spectrum Claims. A federal court is essential because there is currently no venue where intractable disputes between the FCC and NTIA can be resolved. Fact-based, transparent, and timely adjudication will facilitate better spectrum management.

While I am convinced that each of these recommendations on its own will bring great benefits, there are significant synergies between them.

1. Bargaining and contracting based on harm claim thresholds is facilitated by a well-functioning system of dispute resolution.

2. In turn, adjudication is facilitated by clear statements of the rights and obligations to interference protection as enshrined in harm claim thresholds.

3. And finally, risk-informed rather than worst-case interference assessment makes for wise rights allocation and efficient enforcement with a quantitative way to balance the interests of interfering and interfered-with services.

Congress plays a vital role. Here are three things it can do:

1. Take a risk-informed view yourselves, when presented with questions of harmful interference, and avoid (the temptation of) fixating on the worst case;

2. Encourage the FCC and NTIA to use risk-informed interference assessment, and to be more explicit about interference rights and obligations; and

3. Create a Court of Spectrum Claims within the US Court of Federal Claims.

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