| The FCC denies the NTIA petition, but language in the FY 2021 NDAA all but pauses the project. |
Earlier this month, the Trump Administration’s Federal Communications Commission (FCC) denied the petition to stay submitted by the National Telecommunications and Information Administration (NTIA) to stop the FCC’s April 2020 decision to let Ligado proceed with “a low-power terrestrial nationwide network in the 1526-1536 MHz, 1627.5-1637.5 MHz, and 1646.5-1656.5 MHz portions of its license in the mobile satellite services (MSS) L-band allocation.”
Ligado and its predecessor have been trying to obtain authorization from the FCC in one form or another for the last 15 years. When the company was finally given the green light last spring, other agencies renewed and their objections even though the had been part of the inter-agency consideration process. Moreover, there were Members of Congress who urged the FCC to rescind the authorization. The objections arose from claims that Ligado’s operation would impair key national security and civilian Global Positioning System (GPS) systems. And, on the basis of these concerns, there is language in a recently enacted law that will function to block the FCC and Ligado from proceeding until an independent report is completed.
However, this issue now becomes the responsibility of the Biden Administration. It is not known how the NTIA will proceed, and they conceivably could appeal the FCC’s decision in federal court. Moreover, the caretaker officials at the agency may do just this in order to preserve the option for the Biden Administration officials. Certainly, Members of Congress interested in stopping the FCC and Ligado have been in contact with the Biden team and will seek to draft them into their cause.
The FCC summarized its decision:
We find that the extraordinary equitable relief of a stay is not warranted. First, NTIA itself argues that the harmful interference issue it raises will not likely arise until after Ligado deploys its network. Such deployment will not occur for some time and not before the Commission has an opportunity to rule on the Petition for Reconsideration and to reach a determination as to whether NTIA’s claims justify barring this deployment or otherwise modifying its underlying order. Thus, there is no need to issue a stay at this time to prevent any irreparable harm that NTIA claims will occur. Second, based on the record, we conclude that NTIA is unlikely to succeed on the merits. Its claim is based primarily on an argument that the Order departed from the Commission’s established approach to evaluating harmful interference concerns, a claim belied by the words of the Order itself. To the extent NTIA contends that the Commission should use the specific 1 dB metric and approach specifically advocated by DOT and others, the Commission addressed that contention in detail in the Order. To the extent NTIA in its Stay Petition is seeking to support its request for a stay based on providing new data or additional testing that NTIA had not previously provided in the record of this proceeding, this argument is unlikely to succeed on the merits based on its untimeliness. Finally, the balance of the equities favors denial of a stay, in light of the tangible harm to Ligado from a stay and the public interest in finally bringing its terrestrial service to market.
In late April, the FCC’s “decision authorize[d] Ligado to deploy a low-power terrestrial nationwide network in the 1526-1536 MHz, 1627.5-1637.5 MHz, and 1646.5-1656.5 MHz bands that will primarily support Internet of Things (IoT) services.” The agency argued the order “provides regulatory certainty to Ligado, ensures adjacent band operations, including GPS, are sufficiently protected from harmful interference, and promotes more efficient and effective use of [the U.S.’s] spectrum resources by making available additional spectrum for advanced wireless services, including 5G.”
Defense and other civilian government stakeholders remained unconvinced. Also, in late April, the chairs and ranking members of the Armed Services Committees penned an op-ed, in which they claimed “the [FCC] has used the [COVID-19] crisis, under the cover of darkness, to approve a long-stalled application by Ligado Networks — a proposal that threatens to undermine our GPS capabilities, and with it, our national security.” Then Chairs James Inhofe (R-OK) and Adam Smith (D-WA) and Ranking Members Jack Reed (D-RI) and Mac Thornberry (R-TX) asserted:
- So, we wanted to clarify things: domestic 5G development is critical to our economic competiveness against China and for our national security. The Pentagon is committed working with government and industry to share mid-band spectrum where and when it makes sense to ensure rapid roll-out of 5G.
- The problem here is that Ligado’s planned usage is not in the prime mid-band spectrum being considered for 5G — and it will have a significant risk of interference with GPS reception, according to the National Telecommunications and Information Administration (NTIA). The signals interference Ligado’s plan would create could cost taxpayers and consumers billions of dollars and require the replacement of current GPS equipment just as we are trying to get our economy back on its feet quickly — and the FCC has just allowed this to happen.
The Ligado application was seen as so important, the first hearing of the Senate Armed Services Committee held after the beginning of the COVID-19 pandemic was on this issue. Not surprisingly the DOD explained the risks of Ligado’s satellite-terrestrial wireless system as it sees them at some length. Under Secretary of Defense for Research and Engineering Michael Griffin asserted at the 6 May hearing:
- The U.S. Department of Transportation (DOT) conducted a testing program developed over multiple years with stakeholder involvement, evaluating 80 consumer-grade navigation, survey, precision agriculture, timing, space-based, and aviation GPS receivers. This test program was conducted in coordination with DOD testing of military receivers. The results, as documented in the DoT “Adjacent Band Compatibility” study released in March, 2018, demonstrated that even very low power levels from a terrestrial system in the adjacent band will overload the very sensitive equipment required to collect and process GPS signals. Also, many high precision receivers are designed to receive Global Navigation Satellite System (GNSS) signals not only in the 1559 MHz to 1610 MHz band, but also receive Mobile Satellite Service (MSS) signals in the 1525 MHz to 1559 MHz band to provide corrections to GPS/GNSS to improve accuracy. With the present and future planned ubiquity of base stations for mobile broadband use, the use of GPS in entire metropolitan areas would be effectively blocked. That is why every government agency having any stake in GPS, as well as dozens of commercial entities that will be harmed if GPS becomes unreliable, opposed the FCC’s decision.
- There are two principal reasons for the Department’s opposition to Ligado’s proposal. The first and most obvious is that we designed and built GPS for reasons of national security, reasons which are at least as valid today as when the system was conceived. The second, less well-known, is that the DoD has a statutory responsibility to sustain and protect the system. Quoting from 10 USC 2281, the Secretary of Defense “…shall provide for the sustainment and operation of the GPS Standard Positioning Service for peaceful civil, commercial, and scientific uses…” and “…may not agree to any restriction of the GPS System proposed by the head of a department or agency of the United States outside DoD that would adversely affect the military potential of GPS.”
Also in April, 32 Senators wrote the FCC expressing their concern that the “Order does not adequately project adjacent band operations – including those related to GPS and satellite communications – from harmful interference that would impact countless commercial and military activities.” They also took issue “the hurried nature of the circulation and consideration of the Order,” which they claimed occurred during “a national crisis” and “was not conducive to addressing the many technical concerns raised by affected stakeholders.” Given that nearly one-third of the Senate signed the letter, this may demonstrate the breadth of opposition in Congress to the Ligado order.
In early May 2020, the NTIA, a component agency of the Department of Commerce, filed two petitions with the FCC) asking the latter agency to stay its decision allowing Ligado to proceed with wireless service using a satellite-terrestrial network utilizing the L-Band opposed by a number of Trump Administration agencies and a number of key Congressional stakeholders. They argue the order would allow Ligado to set up a system that would interfere with the Department of Defense’s (DOD) GPS and civilian federal agency applications of GPS as well.
The NTIA stated in its press release that it “petitioned the FCC to reconsider its Order and Authorization that conditionally granted license modification applications filed by Ligado Networks LLC…[that] permits Ligado to provide terrestrial wireless services that threaten to harm federal government users of the Global Positioning System (GPS) along with a variety of other public and private stakeholders.”
In the petition for a stay, NTIA asked that “Ligado Networks LLC’s (Ligado’s) mobile satellite service (MSS) license modification applications for ancillary terrestrial operations” be paused until the agency’s petition for reconsideration is decided by the FCC because of “executive branch concerns of harmful interference to federal government and other GPS devices.”
In the petition for reconsideration, the NTIA argued it “focuses on the problems in the Ligado Order that are uniquely related to the interests of Department of Defense (DOD) and other federal agencies and their mission-critical users of GPS.” The NTIA added “that the Commission failed to consider the major economic impact its decision will have on civilian GPS users and the American economy…[and] [a]s the lead civil agency for GPS, DOT explained…Ligado’s proposed operations would disrupt a wide range of civil GPS receivers owned and operated by emergency first responders, among others.”
NTIA made the following arguments in its petition:
- The Ligado Order failed to adequately consider and give appropriate weight to important and valid executive branch concerns about harmful interference to GPS.
- None of Ligado’s latest mitigation proposals, nor the conditions based on them, have been tested or evaluated by any independent party…[and] [a] more scientific way of resolving these technical disputes could be accomplished through further joint FCC-executive branch or independent testing based on Ligado’s actual network and base station parameters.
- The license conditions imposed on Ligado will not adequately mitigate the risk of harmful interference to federal GPS devices, will shift the burden of fixing such interference to federal users, and are otherwise impractical for addressing actual impacts to national security systems. In light of the large number of federal GPS devices that potentially would be impacted by Ligado’s network, the FCC conditions, even if modified, will be a high-cost, time consuming effort for Ligado and federal agencies. As written, the condition requiring the repair or replacement of government receivers, is impractical, infeasible, and potentially illegal.
In June, Ligado filed its response to the NTIAs petitions to stay and have the FCC reconsider its order allowing the company to move forward with its satellite-terrestrial wireless network. The company argued the NTIA’s petitions rehash the same arguments heard and rejected by the FCC over the course of the nearly decade long proceeding, do not argue that an injury has occurred because Ligado is not yet operating, and is contrary to the public interest by delaying the rollout of 5G.
Ligado argued
- First, NTIA is unlikely to prevail on the merits of its Petition for Reconsideration. The 72-page Order was the culmination of the Commission’s “extensive review of the record” generated during a comprehensive, multi-year proceeding, in which NTIA actively participated. In light of the ample notice and opportunity to comment that the Commission provided NTIA, its complaints regarding process are meritless and not a basis for reconsidering the Order. NTIA’s substantive arguments, which merely reiterate arguments that the Commission has already meticulously considered and rejected regarding alleged harmful interference with GPS devices, fare no better.
- Second, NTIA effectively concedes that it will suffer no imminent irreparable injury—meaning “proof” of irreparable injury that “is certain to occur in the near future.” NTIA admits that Ligado’s system will not become operational for a period as long as eighteen months. Putting aside that NTIA’s alleged injuries are contrary to the extensive record, even on NTIA’s own theory those injuries would only occur after Ligado’s network commences operations, and so by definition those purported injuries are not “certain to occur in the near future.”
- Third and finally, issuance of a stay would harm both Ligado and the public interest. A stay would needlessly hamper Ligado’s ability to make progress on important preliminary work items that are necessary to deploy the spectrum for 5G and have long lead times. Moreover, the Commission has explained that Ligado’s network will provide extensive benefits to the public, by unlocking the benefits of advanced communications technologies for customers and businesses, including 5G. A stay would thus unnecessarily delay the “significant public interest benefits associated with Ligado’s proposed ATC network and deployment.”
As mentioned, a recently enacted law will effectively block Ligado. There are provisions in the conference report to accompany the “William M. “Mac” Thornberry National Defense Authorization Act for Fiscal Year 2021” (H.R.6395) barring the DOD to use funds to assist companies in mitigating any harmful interference from the operation of Ligado. Moreover, the DOD must contract for a study on any negative effects:
[The DOD] shall seek to enter into an agreement with the National Academies of Sciences, Engineering, and Medicine for the National Academies… carry out an independent technical review of the Order and Authorization adopted by the Federal Communications Commission on April 19, 2020 (FCC 20-48), to the extent that such Order and Authorization affects the devices, operations, or activities of the Department of Defense.
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