Administrative Law

DoD vs. FCC

Why does it matter is a federal agency is independent of Presidential control? Ask the Department of Defense.

|The Volokh Conspiracy |

It is not every day that a cabinet secretary publicly attacks the decision of a federal agency, but this is 2020.

In today's WSJ, Secretary of Defense Mark Esper criticizes the Federal Communications Commission for approving Ligado's applicaiton to repurpose portions of radio spectrum for planned 5G services. According to the Secretary Esper, this plan will create interference for GPS services and compromise national security. Although the FCC imposed conditions, Secretary Esper maintains they are insufficient to prevent the compromise of GPS reliability and usability for both military and civilian uses.

I have no idea whether Secretary Esper's claims have substantive merit. What interests me about Secretary Esper's op-ed is the interagency conflict. Here we have a cabinet secretary—and presumably one of the more influential cabinet secretaries—publicly criticizing the actions of another federal agency on the op-ed page of a major newspaper.

Under normal circumstances, when two executive branch agencies disagree, the dispute is handled within the executive branch, sometimes with direct White House intervention. So, for instance, if the Environmental Protection Agency adopts rules that limit a fuel source the Department of Energy is trying to promote, the dispute will get resolved through various informal interagency processes. And, in the end, because both agencies are ultimately subject to presidential control, the White House typically has the ability to resolve the dispute in favor of one agency or the other.

In this case, however, we have an independent agency. The FCC is not subject to direct Presidential control and if the FCC votes unanimously to take a given course of action (as it did here) there is little the White House can do. So whereas the Defense Secretary could seek White House intervention to obtain relief from an EPA regulation, it is effectively powerless against the FCC. So, rather than call the Oval Office, Secretary Esper took his complaint to the WSJ, perhaps in the hope of encouraging intervention by Congress.

While public criticism of one agency by the head of another is rare, interagency litigation is even less common—but it does happen. See, for example, this litigation between the Tennessee Valley Authority and the EPA concerning TVA's alleged Clean Air Act violations.

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  1. As broadcast radio and TV become less important shouldn’t the FCC be like other federal departments and be headed by a political appointee?? Or is the FCC a model to make other departments and agencies function more optimally??

  2. I think people are over looking the bigger problem. If GPS can be disrupted by something as ubiquitous as wireless broadband we’re in serious trouble.

    1. GPS satellites don’t have a lot of power to start with, and the signal is very weak by the time it gets to the ground (or even airplanes at 30,000 feet). I have never understood how the military thinks they can protect GPS in the event of war; it is tempting to assume they know what they are doing, but basic physics says those signals are very weak, and whatever tricks advanced physics might offer are beyond me.

      The government has earned so much distrust that part of me wonders if this is a disinformation campaign.

      1. No — Distinguished Brass openly confronted Obama on the Lightsquared issue, and Obama backed down — that wouldn’t have happened were it trivial. And these people have advanced degrees in things like Electrical Engineering and Physics.

        I don’t think this is disinformation.

        As an aside, the satellite signal *has to be* weak or it would mess up a lot of other stuff — it’s not just that signal strength decreases by the square of the distance (which it does) but what a strong signal coming down would do to other things.

        1. I know enough about radar to understand electronic warfare better than 99% of the population. I do not know enough about GPS and signal trickery to know if there are ways of ensuring that the signals will get through — frequency hopping, encoding as used in disk drives and open communication protocols, special antennas which reject signals not coming from the direction of the satellites. I can only imagine that there are such things, and they could be so secret that neither you nor I know anything about them. Your assurances are meaningless.

          1. There aren’t.

            There are ways to encode the signal to prevent unauthorized users (and, to an extent, combat spoofing) but there’s no way to prevent jamming.

            OTOH, jamming over large areas is incredibly difficult to do and maintain. You could certainly jam GPS signals around a facility/base but that just means an enemy would use more bombs to saturate the area.

            1. “OTOH, jamming over large areas is incredibly difficult to do and maintain.”

              Unless you already have an existing network of 5GEN transmitters that you can use to do it with. If you could send instructions to each of them to slightly shift their frequencies, you’d have enough noise to make GPS useless — and the collateral damage of blowing up telephone poles on every street corner would sorta rule out targeting them.

              It’s the principle of asymmetric warfare — look at what a simple virus has done to us. And it isn’t just battlefield but logistics.

      2. The GPS signal is weak but it’s very hard to interfere with.

        Sure, you could put up a bunch of jamming stations and overwhelm the signal during a battle. But jamming stations are easier to detect and target with artillery (or more likely, a helicopter gunship with a load of ARMs). Remember that the jammers will be really easy to find – they’re on the ground (or maybe in a plane) while the real signals are basically straight up. At best, you could block the signal for a few minutes.

        You could scatter aluminum chaff above the battlefield to block the GPS signals – which would last until your chaff is blown away or just settles out.

        You could try something more complicated that involves spoofing the signals but that’s really hard in part because the signals are so simple – a satellite identification code and a time. All the actual processing and calculation to determine your location occurs on the ground (that is, in your phone). And again, the spoofing stations can be identified and targeted pretty easily.

        The easiest way to defeat GPS is to pop a nuke in the upper atmosphere and kill the satellites with EMP. But if your enemy is willing and able to go to that step, well, GPS probably is not your biggest worry anymore.

        1. GPS satellites orbit at an altitude of about 12,000 miles. An atmospheric nuke that could fry them would have to be outrageously huge.

          1. It’s EMP, which I believe is line-of-sight.
            It’s happened naturally in the past: https://www.history.com/news/a-perfect-solar-superstorm-the-1859-carrington-event

            1. Ed, if that blast is in the “upper atmosphere” then it will be somewhere below the orbit of the International Space Station at ~250 miles up. The nearest GPS satellite will still be 12,000 miles away, and others much further. An EMP that can be effective over that distance would much more thoroughly “fry” electronics on the earth below that are only hundreds or a few thousands of miles away.
              Yes, the Sun is big enough to do it, even over larger distances. Each second it releases energy equivalent to 4 million tons of mass, but the biggest nuclear weapon ever detonated only released about 5 pounds worth.

        2. Not necessarily a worldwide or even theatre-wide C3I issue. Think dispersed and unpredictable disruptions. Russians clearly have mobile capability in this area, as the signals around Putin go screwy from time to time when he’s out Bunburying.

          Mr. D.

      3. There are certainly concerns about the vulnerability of civilian infrastructure to attacks on the GPS system. Most current GPS units only use the L1 C/A signal, but all of the GPS satellites that the United States has launched since 2010 also broadcast higher power signals on two other channels (L2C and L5). When GPS units using these signals become common that will reduce but not eliminate the problem. There has been discussion of using LORAN as a backup, but it’s not clear whether that will happen because of the cost, which is on the order of $40 million per year.

        When Mark Esper warns about, “the compromise of GPS reliability and usability for both military and civilian uses,” he is probably talking about interference with the L1 C/A signal causing problems with civilian GPS technology. The military has GPS units which use other signals. Because the technology is classified, these units are undoubtedly expensive and any deployment of them requires that the benefits be balanced against the possibility of a security breach. I wouldn’t assume that Mark Esper is concerned about these units at all. The “military uses” that Esper is referring to could be instances where the military is using commercially available GPS technology.

    2. See: https://www.washingtontimes.com/news/2020/feb/12/donald-trump-aims-to-protect-gps-other-infrastruct/

      This is part of the concern about Hauwei, and the CCP would love to be able to spoof GPS, and with a stronger ground signal, could.

      Above and beyond that, both GPS and WiFi are radio signals, and it’s the same problem with two people talking at the same time, although you will also get funky things like interference at multiples of the wavelength. The GPS signal comes from satellites and hence it is like trying to carry on a conversation in the midst of a rock concert.

  3. This attempt to use spectrum close to GPS spectrum is not a new thing. Lightsquared tried to access this “unused” spectrum in 2012 and it was shown to interfere with GPS. Their tests showed widespread interference with GPS signals that threatened air travel.
    Wireless broadband doesn’t cause problems, inadequate spacing of services will cause problems.

    1. There was a lot more to Lightsquared — it was the CCP and the Chinese military and concern that they could use Lightsquared ground units sorta like a stingray, to spoof the satellites and hence corrupt the GPS system.

    2. Pai insists that the Ligado approval order contains “stringent conditions to prevent harmful interference.” I don’t have the expertise to judge, but why would he risk being proven wrong? On the other hand, we do know that DoD, DOT and other agencies are loath to relinquish even unused spectrum; it is a valuable resource, after all.

      1. Our enemies don’t know it is unused….

  4. “Why does it matter is a federal agency is independent …”

    Jonathan, I think this first “is” is supposed to be “if”

    (No way to write you privately re typos at this Reason site, I think.)

  5. “not subject to direct Presidential control”

    Only judges could say that that does not conflict with “The executive power shall be vested in a President of the United States of America.”

    The FCC is exercising executive power that even the President cannot overrule.

  6. How many divisions does the FCC have?

  7. The idea of any independence in federal agencies is pure tyranny and an unconstitutional farce.

    1. Raging against Humphrey’s Executor is a weird flex, but you gotta do what you gotta do.

      1. Not tyranny but no doubt it is an unconstitutional farce.

        “The executive power shall be vested in a President of the United States of America.”

  8. While public criticism of one agency by the head of another is rare, interagency litigation is even less common—but it does happen.

    Petitioners for judicial review of the decisions of some federal regulatory commissions are required to bring the review action against, not just the commission itself, but against the United States of America. That means that the Justice Department as well as the commission’s Office of General Counsel generally get to participate in writing the briefs (and need to work out between themselves who will represent the government at oral argument).

    This has sometimes led to cases in which a government agency was a participant in the commission’s proceeding, didn’t like the decision, and sought judicial review. That has led to reported decisions with the caption “United States v. United States.”

    1. Quite so! Vide: United States v. ICC, 337 U.S. 426 (1949), in which the US Govt, as a rail shipper, appealed a decision by the US rail regulatory agency that denied the US’s complaint about unfair treatment by a RR.

  9. The FCC is not subject to direct Presidential control

    Has a President ever been admonished for attempting to exert direct Presidential control over the FCC?

    I expect this is more of a rule by implication. The President implicitly agrees not to control the FCC and the court agrees not to address the plainly unconstitutional structure of the FCC (and most of the fourth branch).

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