July 14, 2000

Re:	U.S. GPS Industry Council, American Airlines and United Airlines, Consolidated Petition for Reconsideration of Waivers Issued under Delegated Authority by the Chief, Office of Engineering and Technology, Order (rel. July 14, 2000)

This item should have been released five months ago when it was adopted. It appears that post-adoption review of our Order by NTIA was largely responsible for this delay. My colleagues and I had no knowledge of the delayed release or NTIA’s extensive review until last week. Upon learning of the delay, the Commission has decided to release the item as originally voted back in February. However, this process and the disturbing gap between adoption and release compels me to describe the events that led to this delay.

The facts speak for themselves. The item was first circulated to the Commissioners in early January and was submitted to NTIA for coordination at that time pursuant to their shared jurisdiction over the bands at issue. In mid-January, NTIA proposed various edits to the draft item. In response to NTIA’s requests, the item was pulled from circulation, revised, and then re-circulated. On February 2, the Commission adopted the revised Order.

After being provided with a copy of the adopted Order, NTIA objected and requested additional changes. In response, another draft of the item circulated to the Commission with responsive changes. In late February, all of the Commissioners’ offices signed off on the revised draft and assumed it would be released to the public in short order. This assumption proved to be incorrect. Remarkably, after adoption of this second revised version, NTIA received a copy and objected yet again. The ensuing months were consumed with staff negotiations with NTIA over revised language. The Commissioners’ offices were never advised of NTIA’s further review of the second revised Order. Nor were we aware that the item had not been released. Only on July 6, 2000, were the Commissioners’ offices advised of the events set out above: the sharing of post-adoption drafts with NTIA, the prolonged negotiated editing process, and the failure to release the item.

I am confident this process was conducted with the best of intentions, but the outcome is 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.

Going forward, I believe it is important that the FCC consult with NTIA regarding regulatory policy that may impact government bands. 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.

As for the merits of this Order, I continue to support our efforts to explore the viability of ultra-wideband technologies in all bands. As set forth in our recent NPRM, and seemingly of primary interest to NTIA, the Commission is committed to the protection of GPS in this process. I look forward to developing a full record on these issues, including comprehensive, independent and objective test data from NTIA’s labs. Throughout this process the staff has done a remarkable job balancing the difficult issues presented here; the fate of ultra-wideband should not be impacted by its’ unfortunate procedural path.