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FCC Not Audience?

SpaceX-Driven 12 GHz Outcry Seen Possibly Aimed at Lawmakers

The FCC has been deluged with comments by SpaceX supporters in recent days on a possible opening up of the 12 GHz band to 5G, but that input likely won't matter in an agency order, administrative law and commission experts told us. The real audience for the comments might be Congress, they said. The commission didn't comment.

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The 12 GHz band docket, 20-443, has had more than 92,000 express comments filed since July 1, including 16,000 on Wednesday, per the FCC's electronic comment filing system. Most include the same cut-and-paste language about the importance of SpaceX's access to the band for its Starlink broadband service and say the FCC should reject opening up the band to 5G. "Allowing an entirely new use of this spectrum would significantly interfere with my broadband internet connection, which I have come to rely on," they echo. The FCC "should not be focused on changing the rules to satisfy speculative and poorly-defined technologies and individuals who have no clear plans to help close the digital divide."

That language comes from a SpaceX landing page aimed at getting Starlink subscribers to contact the FCC and federal lawmakers on the 12 GHz fight. "If the FCC does not reject the rule changes proposed by DISH for 12 GHz spectrum, Starlink customers will experience harmful interference more than 77% of the time and total outage of service 74% of the time, rendering Starlink unusable for most Americans," SpaceX says on the page. "Ask the FCC and members of Congress to put an end to this threat" by filling out the form, it says.

Many of the comments also contain personal vignettes. "For many years, I have not had internet access or reliable phone service at my home," Virginia Miller of New York state said in the docket this week. "This year, Starlink came to my area and for the first time, I have reliable internet and WiFi calling. Please [don't] let Dish ruin services for rural neighborhoods." "As a full time RV’er who is working from the road, losing Starlink service would be devastating," said Raymond Agrella. "I spent a lot of money on my RV thinking I would have internet access in some of the most remote areas of the country. Please don’t allow this takeover of the 12GHz spectrum!"

Parties other than SpaceX are also trying to drive traffic to the landing page. Tesla Owners of Silicon Valley tweeted a link to the page to its members June 28, saying Starlink was "asking for help." A Tesla owner also tweeted that current and future Starlink users should take part in the campaign. Posts on Reddit's Starlink subreddit indicate some non-Starlink subscribers also filled out the landing page form.

Regulatory agencies consider all comments, but "the number of comments favoring one side or another is not nearly as relevant as what information those comments provide," emailed Susan Dudley, director-George Washington University Regulatory Studies Center. "One carefully developed comment that provides new information, analysis, or insight is much more likely to change an outcome than thousands of comments that merely express a sentiment."

Some public comment campaigns can be a reminder to the FCC about how important communications services are to consumers and focus staff on redoubling its review efforts, emailed former Commissioner Mike O'Rielly: "In 12 GHz, the record and third party analysis is pretty clear that coexistence is very possible, and I don’t see this campaign undermining the solid engineering and facts, which will ultimately drive the Commission’s review and decisions for highest and best use of the band."

The notice and comment process is to help inform, and comments just expressing a preference rarely provide that, said Cary Coglianese, director-University of Pennsylvania Penn Program on Regulation. He said an outpouring of comments about something requiring compliance by the public might matter because those comments could help make some inference about how the public might respond. That kind of scenario is tough to envision in an FCC context, he said. Express comments might not influence the commission, but the political climate and what happens on Capitol Hill affect what agencies do, so the comments could have value as a political tactic, he said. The SpaceX-generated comments also could signal the political strength and clout the company has, which could matter in a variety of issues before lawmakers, Coglianese said.

The Administrative Conference of the U.S . (ACUS), in a set of recommendations last year on how agencies can better manage mass, computer-generated and falsely attributed comments, urged the General Services Administration to provide a common de-duplication tool that could help in searching for unique content of comments. Other recommendations included allowing submission of comments with multiple signatures rather than separate identical comments. Conference Senior Fellow Richard Pierce, who in a separate statement to the ACUS report recommended it help agencies explain to the public why the notice and comment process "is not, and cannot be, a plebiscite," told us agencies generally shouldn't pay attention to express public comments. Pierce, a George Washington University law professor, said the FCC has been a particular focal point of a lot of the problem with falsely attributed and mass comments, peaking with the net neutrality fight.

Pierce said with politicians paying attention to what they believe to be public opinion, both sides in a policy fight are likely to put a lot of resources into methods of creating apparent support for their positions.

Other SpaceX allies are also chiming in. Citing the first major effort to electrify Alaska's rural communities and villages 54 years ago, the Alaska Federation of Natives said last week expansion of broadband today is just as critical as that 1968 rural electrification effort. It urged the FCC to deny any change to 12 GHz use.

RS Access CEO Noah Campbell cited SpaceX's analysis of 12 GHz sharing (see 2206220042) in a meeting with FCC staffers including Office of Economics and Analytics Senior Economic Advisor Evan Kwerel and staff from the Wireless, International and Public Safety bureaus and Office of Engineering and Technology, RS Access said in an ex parte post Wednesday.