Kelcee Griffis of Law360 on Spectrum Institutions

Scott Wallsten: Hi and welcome back to TPI’s podcast Two Think Minimum. It’s Thursday, February 27th, 2020 and I’m Scott Wallsten, president and senior fellow at the Technology Policy Institute. I am joined by my cohost, TPI Senior Fellow, Sarah Oh. Today we’ll be speaking with Kelcee Griffis, who is a senior telecom reporter at Law360 which covers major developments in litigation, legislation, and transactions and publishes more than 200 stories every day. I think you’re responsible for about half of them as far as I can tell. But Kelcee has worked on stories on net neutrality, lobbying, the future of 5G, the failed Sinclair-Tribune merger, the Sprint-T-Mobile merger, and most anything else that’s happening in telecom. Kelcee, thanks for joining us today.

Kelcee Griffis: Thanks so much for having me, Scott.

Scott: I wanted to start by talking about what’s been going on at our various spectrum governing institutions in this country. I know you’ve written about it a lot and it’s a confusing time. Tell us a little bit about what’s going on and what you’ve learned. 

Kelcee: Absolutely. It’s been a pretty crazy year, a year and a half among our spectrum agencies here in DC. We obviously have the Federal Communications Commission( FCC), right next door to you guys. And they are tasked with managing the commercial side of spectrum needs. And then we also have the National Telecommunications and Information Administration (NTIA), which is tasked with managing the government’s use of spectrum. In the last couple of years we’ve seen these two agencies increasingly either going head to head with each other or we’ve seen other government agencies that would usually communicate their needs through NTIA, freelancing those concerns to the FCC directly. We’ve kind of seen this tension between commercial interests and federal interests and the way we’re going to divide up or share some of these really valuable parts of the airway. 

Scott: Part of that, of course is the NTIA’s inability to keep someone in the top spot. And is that, which way do you think the direction of causality goes? Is people leaving NTIA causing other agencies to step up and take their own course? Or is the inability of the administration to speak with one voice causing the top people to leave? 

Kelcee: Sure. We’ve seen obviously a lot of turnover at NTIA since last May when David Redl, who was the Trump administration’s pick to head up that agency under the commerce department’s umbrella. He stepped down in last May after a lot of back and forth over a certain spectrum bands, and I think the word on the street was that he just really felt caught in the middle. He was trying to work with the FCC. He was also trying to work with these government stakeholders. No one could really agree and that seemed to really undermine his authority. His deputy Diane Rinaldo stepped up and we just saw her, in fact, step down in December. There were some complications there. She wasn’t able to deal directly with Telecom issues because her husband works for T-Mobile. There was a firewall instituted there and now we have another official who has stepped up from a lower position to kind of be the acting head of NTIA while they search for a more permanent replacement. To your point, Scott, about, you know, what does this mean for the FCC and what does this mean for spectrum stakeholders? I think we’ve seen a lot of uncertainty. You know, a lot of stakeholders are kind of wondering how this is going to shake out for them in certain bands where there is a lot of government and private sector interest. I’ve spoken to some sources who kind of hypothesize that maybe this does in fact give the FCC a somewhat freer hand to kind of push across the commercial spectrum agenda if all of the government stakeholders aren’t really on the same page about what they want. There does seem to be, you know, a power dynamic issue there. 

Scott: Do you think in terms of winners and losers, the FCC has a winner in this? They have more power than they did before.

Kelcee: You know, I don’t want to put as fine a point on it to say that they’re a winner, but I do think that they might have a little bit less pressure on them to confront one more powerful government agency. Instead, we’re seeing the FCC sort of putting out fires when the DOD or when NOAA or when you know more scattershot government agencies come at them and say, hey, we don’t want you to take this or that spectrum moves. They do think that that power on the federal government side is less consolidated. We’ve also seen the white house be pretty supportive of the commercial agenda that the FCC has put out. I think all of that kind of bends in the FCC’s favor. 

Scott: Obviously we can’t know the counterfactual, but let’s pretend we know the counterfactual and suppose the NTIA had a head and it wasn’t in the same situation it was. Would we see, for example, DOT arguing over 5.9 the same way it was? Or would NTIA be taking the lead and either, I guess we don’t know, either supporting the DOT or telling DOT to shut up and sit down.

Kelcee: Yeah, that’s a great question. I would really love to know what those dynamics would look like. You know, if things were different than they are today, maybe a little less chaotic. I do think that NTIA, at least by design, is supposed to act like a moderator where it will listen to the government stakeholders interest, try to kind of synthesize those requests, get to the bottom of some disagreements among government agencies, and then also work as a partner with FCC, realizing that there are legitimate, you know, commercial needs as well as legitimate needs from government to protect, say, military spectrum from interference. I think that we just haven’t really seen that collaborative process happening, which has led to this really chaotic environment where we’re seeing letters fired off from the Hill. We’re seeing government agencies like, DOT, DOD firing off their own letters to the FCC. And I think a lot of stake holders are feeling kind of caught in the crossfire.

Sarah Oh: In that counterfactual, DOT is representing the car industry, but the NTIA would be representing DOT’s government spectrum interests. DOT is sticking up for their commercial interests, their industries’ commercial interests. How does that play out? Like, let’s say we’re in the NTIA and we’re talking to the transportation representative. You know, they’re supposed to be protecting federal spectrum, but 5.9 is commercial car spectrum. I don’t know, what do you think about that?

Kelcee: I think that’s another great point that you’re making about the level of the breakdown that we’ve seen because NTIA isn’t being used as a clearinghouse anymore, or at least not in any organized fashion for government spectrum stakeholders’ interests. We’re seeing agencies just kind of go rogue in communicate about things that they might not even have authority over. One of the benefits of using NTIA as a clearinghouse for these needs is that it does have a pretty good handle on FCC procedures. And there was some speculation a few months ago when DOT, the transit department, weighed in on the 5.9 gigahertz band and was very against a preliminary FCC rulemaking that would explore some spectrum sharing options for that auto safety band. And you know, I heard some speculation that maybe DOT didn’t actually understand the FCC process that was happening and maybe there was just kind of like a breakdown in communication. If you’re not going through NTIA, you don’t have that rapport with the FCC and you might not have an understanding of the way those agencies work. 

Scott: That’s really interesting. Like you said, Kelcee, the way we think of the FCC as dealing with the civil and commercial side and NTIA dealing with the government side, but we have the government looking out for a particular commercial interest, which was sort of different. It takes us back to an older time in spectrum when we assigned to uses and industries. Do you think we’re heading back into that type of regime where we rely on lobbying to decide where spectrum is allocated rather than market forces? Not that market forces have ever really been used in the government sense. That’s always been a goal. We don’t know how to do it quite, but are we moving in that direction?

Kelcee: No, that’s a great question, I think one that we’re going to be asking for a while. To me it seems like not going through into NTIA as a clearinghouse does in some ways give lobbyists more power over the agencies that they communicate with frequently. In some ways I think it does empower the DOT to sort of go to bat for its most vocal, its most active constituents. And you don’t really have a moderator, an outside moderator, say NTIA, trying to temper those interests with the broader picture of what the government and what the private sector have to balance.

Scott: How would you compare the 5.9 proceeding to the 6 gigahertz proceeding. We know that there are energy companies that care about what happens in 6 gigahertz and so Department of Energy will have, will be concerned, but 6 gigahertz is so much more spectrum than the 5.9 gigahertz. How do you see the Department of Energy dealing with this or not?

Kelcee: Sure. I think that there is a sense that some sort of reorganization in both bands is going to be inevitable and I don’t want to call 6 gigahertz lower stakes, but I think that there has been a lot more commercial side investment in 5.9 from auto makers and they are more worried that their auto safety communication investments are going to just kind of evaporate if the FCC is allowed to continue with its plan to allow unlicensed into 5.9. So in 6 gigahertz, I think that we do see a lot of utilities and some, the electrical industries, worried that their communications in 6 gigahertz are going to be interrupted. But it seems like there is a more clear plan for how to manage that. There have been a lot of filings flying back and forth at the FCC about the types of mitigation that do to make sure that Wi-Fi signals don’t clash with these critical infrastructure communications that preexist in the band. But in some ways it does feel lower stakes. We’re talking about low power Wi-Fi routers and not necessarily, you know, unlicensed communications that could be more disruptive, at least from the auto makers perspective, in 5.9.

Scott: Well, let me push back a little on the 5.9, on the automakers, because of course on the one hand you should always ignore sunk costs. If you were just completely rational that wouldn’t matter at all. It only matters what happens going forward. But if in fact they invested in this because the government said that they should 20 years ago, then they have some cause for concern and maybe you could even make an argument that they should be compensated. But I’m not sure we’ve seen much evidence that they’ve actually have invested. At the consumer electronics show, for example, there was lots of displays by car manufacturers and lots of displays about their safety technology. And you know, there were giant signs talking about LIDAR. Nobody ever said anything about DSRC or any 5.9, even the Department of Transportation’s own booth had nothing about 5.9. Are you hearing from them that they do have investments that they are concerned about?

Kelcee: Those are really interesting observations from the trade show because I similarly haven’t heard a peep about what people are doing with DSRC. I think that it might be more of, a trying to not secede any territory that might become useful down the road. You know, I think auto makers kind of kept saying we’re about to see DSRC progress, we’re about to see something really cool come from this. But over at the DOT it’s been very fuzzy as to what that agency is doing to test DSRC progress and to test how DSRC and unlicensed could potentially share the band. So they’ve been pretty silent on this topic. Even DOT officials speaking, I think it was a few months ago, really wouldn’t say, you know, they wouldn’t say one way or another, What is the status of the testing? Not really going to get into that, which kind of leaves the floor open for the FCC to put forth a plan and then you know, hope that comes out in its favor later.

Scott: Getting back to 6 gigahertz and to the question of what types of uses spectrums for, it seems like there’s been a big turn towards unlicensed spectrum, at least in these bands. It seems like the C-band, everyone agreed what goes to licensed spectrum, with a huge debate over how that happens. How am I don’t want to minimize how big that debate is, cause of course it’s still going on, kind of. And then that 5.9 and 6 would be unlicensed and although the proceeding is still open in 6 and there are proposals for half of it to be licensed and half would be unlicensed. There really seems to be a strong push towards unlicensed. How did this happen? Who made those decisions? Because I don’t know that we have a coherent way of making that decision at all. 

Kelcee: Yes. That’s a great point. I do think that a lot of the excitement around 6 gigahertz is coming from the Wi-Fi industry and from the argument itself that we can’t have a strong 5G service ecosystem without also allocating spectrum for unlicensed services. When you think about the way you use your phone and you connect your home devices right now on 4G, LTE, whatever it is that you’re using, we still rely a lot on Wi-Fi and you know, certain unlicensed services, to carry that traffic that did pass over a mobile network at some point. So I don’t really think you can have a robust 5G ecosystem without also allocating significant spectrum for offloading to Wi-Fi.

Scott: Are you seeing any pushback to that or is that sort of generally accepted among all stakeholders, even those who normally would push licensed spectrum?

Kelcee: Yeah, I think the pushback that I’m seeing is where we put this unlicensed spectrum. I think government stakeholders that have existed or critical infrastructure stakeholders that have existed in a band for a long time don’t want to see their quality of service degraded and for good reason, right? These are really important applications, but I think the FCC in the commercial sector is really feeling the squeeze to get 5G out there, to get these complimentary services out there, and can’t really do that without freeing up spectrum wherever you can.

Sarah: I’d like to ask the process question as well, who makes that decision about licensed or unlicensed? It seems like it’s still pretty manual or ad hoc, like one at a time, band by band. Have you noticed at all changes in consensus mechanisms among the industry? Like you know, why is everyone interested in Wi-Fi and 6 gigahertz? Do you know, is there like a ready to go technology there or? It seems unusual that so many people are on the same side in a spectrum issue.

Kelcee: Yeah, totally. I’ll have to think about that one a little bit. What I do know is that the Wi-Fi industry itself seems to believe that 6 gigahertz is really going to be, it’s going to have characteristics that are conducive to equipment that’s already out there. We’re also seeing some other mid band spectrum real estate opening up for unlicensed, but especially if you talk to people in the Wi-Fi community, they’re still worried that that’s not going to be enough.

Scott: Let’s turn to a topic that nobody ever wants to talk about, which is net neutrality.

Kelcee: My favorite.

Scott: We’ve been talking about this forever and we will be talking about it forever, but it is a time to talk about it again because the FCC has just reopened, I guess that’s not the right way to put it, but they’re asking for comments about, what exactly are they asking for comments on? It’s a very, just tell us.

Kelcee: Yeah. I was there in the courtroom in February when, I guess it was last February, now, still remember it was a really snowy day and I was worried I wasn’t going to be able to get into the court house or that I was going to have to stand outside for hours in the snow. Luckily I made it in immediately. So very memorable day in court, very memorable arguments. We heard from the panel at the DC circuit a lot of questions about the effect of the FCC’s Title II deregulation on public safety and on lifeline consumers, who are low income households that receive subsidies for their phone and internet service, and on one other aspect. So, and that would be pole attachments and internet infrastructure. And access to infrastructure that helps the internet rollout. The judges did seem pretty concerned that the FCC had left some of these questions unanswered. And when that opinion came out in October, those questions were reflected in the opinion. The judges mostly agreed that the FCC is allowed to deregulate internet services, to go from Title II to Title I but they still had some questions that they wanted to FCC to answer about how it’s deregulation affects those three categories. Those are the questions that the FCC has now taken up

Scott: And they’re asking for people to write in with comments on that, right?

Kelcee: Correct. It can seem a little bit strange from an outside perspective. Like why can’t the FCC just, you know, fill in the blanks here. You know, can’t it take it upon itself to just explain itself a little bit further? But as far as I understand, this is just following the FCC’s statutory rulemaking process. You have to collect comments, you have to collect reply comments, and then you put out your decision. So, you know, this is a very common procedural thing, but the questions that are being teed up are very interesting and I think we’re going to see a lot of dialogue around this in the future.

Scott: Right. I think it’s also kind of confusing to some insiders. At least, if I consider myself an insider, and maybe I shouldn’t because I find it confusing. And you know, it’s important. Comments are always important. But if there are specific questions, it does seem like there should be, let’s say more scientific ways to answer it. It doesn’t necessarily have to be by the FCC, but you could pose the questions and have outside institutions try to, you know, try to investigate. I guess. I just, I don’t know. I mean, what are they going to do with the comments?

Kelcee: Basically when the FCC makes a decision, as you know, they have to be able to substantiate the path that they take with comments in the record that they received during those comment processes. 

Scott: but aren’t they going back now, to what decision are these comments supposed to justify? Is it the decision that they made already or is it, is there a new order? This sort of seems like a brand new kind of proceeding.

Kelcee: Yes. They are kind of treading on new territory. They’re trying to explain how going back to a title I unregulated, essentially, regime for the internet is going to affect these three somewhat vulnerable categories and yes it does feel like they’re breaking new ground and it’s my inkling that the FCC is going to get a lot of groups weighing in that agree with it and will kind of help it flesh out the way that this deregulation is going to affect industries in a way that is sort of flattering to the decision that the FCC already made.

Scott: Right. I mean I just don’t know. We know what the result is going to be. Certain groups are going to say that it’s been a disaster. Other groups will say it’s been fine and it’s promoted investment and you know the one that has the most will be whoever is best at organizing a campaign and making it easiest for people on the web to fill in a couple of you know, words on a form and print, submit. So I don’t know. I just don’t see what we get out of that.

Kelcee: Now I do think it’s worth mentioning that the FCC was very dismissive of bulk commenters in the net neutrality proceeding that we saw unfolding in 2017. It basically did not consider what bulk commenters had to say in its decision because it, I haven’t gotten a great explanation for this, but it just didn’t see those repetitive comments as something that it was obligated to give a lot of weight to, which was much to the chagrin of the FCC’s Democrats.

Scott: One thing that I’m wondering about and that I’m looking forward actually to having the chance to look at is what the nature of automated, how the nature of automated comments has changed. We did some analysis of all of the comments, the millions of comments, and the automation became more sophisticated from the first net neutrality to the second one. And I would suspect it’s going to be even more sophisticated now. So it’ll be, I mean I wonder have they prepared for this at all?

Kelcee: The FCC is right now studying some options for how to change its public comment portal. I participated in a focus group a few weeks ago where we just kind of got a chance to off the record share thoughts about how we use ECFS, how we see other people using it, what are our pet peeves, what would we like to see change, what would make the system more clear? I think the FCC is responding to some of that pushback it got a couple of years ago when a lot of people appropriated names that weren’t there as to use and put out a lot of inflammatory comments and that sort of thing. So I do think that the agency is taking steps to address kind of this breakdown in its online comment portal. But yeah, it will be really interesting to kind of see how this plays out in 2020.

Scott: Actually only I just want to take this opportunity to point out that, I mean I know I criticized the FCC a lot, lots of other people too. But I think it’s always important to note that the staff at the FCC really does amazing work. And whenever people criticize aspects of it, they know this stuff already and they really do take it seriously and try to fix it. So yeah, I think, I mean if they are working on it, I would expect they’re taking it seriously. 

Kelcee: Absolutely. And you know, we had a report or two out of the agency’s internal watchdog, the Office of the Inspector General, that kind of probed identity, what some people were calling identity theft, in the comments. And I think that’s something that the FCC is being very mindful of. You can’t have an effective public rulemaking proceeding if people are questioning the legitimacy of the people and the identities of the commenters who weighed in on that process.

Scott: We’re running out of time. But before we stop, I just wanted to ask you, how did you end up covering telecom? You majored, well one of your majors was journalism, but you also majored in something called agricultural communication. Telecoms seems like a strange place to end up.

Kelcee: You know what, it’s really funny that you bring that up. Scott. I just did a feature a couple of weeks ago about the intersection of telecom and agriculture and I feel like it just really hit upon the intersection of my interests and my training right now. So I was a double major. I got into journalism a little bit later in my college career and I worked at a student newspaper in Gainesville, Florida called The Alligator, but I originally started my degree in the college of agriculture doing sort of a hybrid degree where you learn how to write press releases, you basically get all the skills that you would need to run a family farm business or to work in crisis communications at an agriculture company. I feel like I got a pretty multifaceted set of skills there and it often pops up in really unexpected ways. Like when we’re talking about connected cows with Commissioner Carr.

Scott: I mean agriculture seems to be one of the most, one of the biggest beneficiaries of new tech and telecom and spectrum. And I can’t imagine there are a lot of journalists who are prepared to cover it like you are. I would think this would be a pretty good time to be in your position.

Kelcee: Sure, yeah. In college, I felt like it was a very niche specialty, but it was something I was interested in and I enjoyed it. I come from a pretty rural area where ag is a big industry. So something I had an interest in and now, you know, it seems to be one of those industries of the future where we’re seeing a lot of innovations. Kelcee, a decade ago was, I guess, on the right track.

Scott: That was good planning. Our time’s up. Kelcee, thanks so much for talking with us. That was really interesting. 

Kelcee: Thank you so much, Scott. Thanks Sarah.