HOMELAND SECURITY AND THE FCC:
A MARRIAGE MADE IN HEAVEN?
Liz Sachs - Partner, Lucas Nace Gutierrez & Sachs and Regulatory Counsel, EWA
There probably aren’t more than a handful of agencies in Washington that don’t make some claim to Homeland Security responsibility. If you are following the post-Katrina hand grenades that the Michaels - Brown and Chertoff - continue to lob at one another, you might wonder why people aren’t running away from, rather than toward, this political hot potato. The likelihood is much higher of being a goat than a hero when you are charged with protecting the Homeland. It is difficult to prove that your efforts prevented something bad from happening, but easy to be held responsible if disaster strikes. No matter how much of the budget is flowing into this particular bucket, the potential downside remains considerable. But in a Washington world where just about everyone wants to be near the center of power, the flame of high visibility is irresistible even with the risk of being burned.
By comparison with lots of other agencies, the FCC certainly has a credible basis for claiming a piece of the Homeland Security portfolio. The critical importance of communications in disaster response is not a matter of debate. If we didn’t learn that during 9/11, it certainly was one of the take-aways from Hurricane Katrina. And it is generally accepted that communications of all types including, but not limited to, wireless is a linch-pin of the nation’s efforts to keep its citizenry secure from terrorist attack.
So it is not surprising that Chairman Martin has taken another step toward claiming Homeland Security responsibility for the FCC by proposing creation of a Public Safety/Homeland Security Bureau. The Chairman first hinted that this might be in the works last summer. There was substantial buzz about the prospect that public safety might be spun out of the Wireless Telecommunications Bureau and married up with the FCC’s existing Office of Homeland Security that is housed in the Enforcement Bureau in a new Bureau devoted to these complementary public safety-related functions. Then all was quiet until, in the aftermath of Hurricane Katrina, he announced his intention of creating just such a Bureau. Since then, the Commission has been absolutely mum on whether or not that plan was moving forward – at least publicly. Some thought that the scope of responsibilities Chairman Martin had sketched out in the fall might have appeared too ambitious to sit well with other agencies that presumably believed they had Homeland Security well in hand without the FCC’s assistance. There was a theory that he had overstepped where the White House wanted the Commission to be on this issue and had been directed to pull back.
But the matter obviously isn’t dead and the Chairman seemingly has the green light from the administration. He announced in his recent appearance before the House Appropriations commerce subcommittee that his plan to create this new Bureau was being reviewed by his colleagues. Assuming they approve it – or something like it - the Commission will be back to the subcommittee for funding to make it happen.
And what, precisely, is it? Well, it’s a bit early to say. It does appear that the Chairman has pulled his wings in a bit in respect to the range of the new Bureau’s responsibilities. He has suggested that it will manage public safety communications, including 911 centers and first responders; priority emergency communications; emergency alerts; and infrastructure report and analysis during emergencies. This laundry list is noticeably shorter than the one suggested last fall, but any Bureau that is responsible for these substantive issues is going to have its plate full. It undoubtedly will be a lightning rod for Congressional inquiries and complaints and, therefore, is likely to maintain a relatively high profile.
Whether segregating these substantive areas will be good for the Commission’s constituents remains to be seen and may be determined by who is in and who is out. For example, it is unclear whether or in what form the Wireless Telecommunications Bureau will survive this agency reconfiguration. Will all Part 90 licensees, including commercial entities, be moved to the new Bureau to maintain the commonality of licensing and policy making that has always governed the inextricably inter-related activities of those operating on Part 90 spectrum? Public safety has less than a handful of discrete allocations that are not shared by other Part 90 users. Distributing Part 90 user categories among different Bureaus certainly would complicate licensing and even policy matters relating to these bands.
On the other hand, if other Part 90 groups move to the new Bureau, how will their priorities fare when compared to public safety and Homeland Security activities? It is difficult to imagine them being more than a third or fourth fiddle competing for attention and resources within a Bureau devoted to high profile, big ticket types of issues. If they remain in the WTB, assuming there is a WTB in which to remain, how do they stack up against the behemoth carriers whose interests already dominate much of the Bureau’s agenda? What is the best home for those who form the infrastructure of the nation’s business activities, but whose communications interests have become increasingly muffled in the cacophonous telecommunications world?
And will Public Safety be best served in a more isolated environment? There is a growing commonality of technology interest between this community and the rest of wireless, even consumer wireless. Will that healthy cross-fertilization continue if each is regulated by a different part of the FCC?
It seems likely that the Chairman will get the votes needed from the other Commissioners to approve the new Public Safety/Homeland Security Bureau. He probably also will get the money from Congress to fund it. After all, who would be against any initiative that might advance these twin pillars of the country’s security! Stay tuned to see if the result is a win-win for public safety and the rest of telecommunications. |
