FCC unlikely to grant stay or vote again on Ligado

Despite a member of the Federal Communications Commission announcing a willingness to issue a pause order on Ligado Networks, the chances of the FCC reversing itself in its support for the company are almost nonexistent, according to a commission source.

Comments from Jessica Rosenworcel, one of the five FCC commissioners, at a Wednesday hearing of the Senate Commerce, Science, and Transportation committee, were the first from members of the FCC indicating less than solid support for Ligado’s planned use of L-Band. The commission unanimously approved Ligado’s plan on April 20, despite strong opposition from the Pentagon and its supporters who say the company will harm Global Positioning System usability for both government and commercial users.

Sen. Maria Cantwell, D-Wash., the ranking member on the committee, opened up the discussion on Ligado by questioning why the commission would not simply pause the Ligado approval in order to sort out the differing technical opinions between the two camps. Cantwell was among 32 signatories to in a May 15 letter to the FCC, which urged a reversal of its approval for Ligado.

“Out of respect for you and your colleagues who have said that they’re concerned about this, if [FCC chairman Ajit Pai] was interested in circulating a decision to us, staying the decision we recently reached on the L-band, that would certainly be something I would support, because we’ve got to iron this kind of stuff out if we really want to have a big and bold 5G future,” Rosenworcel said.

Her comments gave hope to the Pentagon and its supporters that there may be movement inside the commission to reconsider. Notably, Rosenworcel and Pai were given a classified brief by top Pentagon officials, including Deputy Secretary of Defense David Norquist, days before the hearing, in a move that defense leaders hoped would sway minds.

But a FCC source said not to read into Rosenworcel’s statement, as the structure of the commission means Pai ultimately has to make the first move — and all signs are that the chairman’s mind is made up.

“Anyone reading Rosenworcel’s comments as improving DoD’s odds on reconsideration at the FCC either don’t understand the dynamic of how the Commission works or are trying to claim a win that isn’t there,” the source said.

Even if the other four commissioners all wanted a re-do — which does not appear to be the case — the power of the chairman on the FCC is such that Pai is the sole arbiter of whether to have a discussion on re-opening the Ligado case. Pai does not need to respond to the government’s petition at all; he can effectively sit on it, daring the government to bring forth a lawsuit to try and force his hand.

Pai himself showed no signs of backing down during the hearing, saying the commission “made a decision based solely on the facts and the law, and I will defend this decision in any forum in this Congress or around the country.”

The source said the most likely outcome is Pai brings forth a short document saying the government’s petition does not raise any new information that changes the FCC’s determination and then denies the stay request, effectively locking the door on any idea of the FCC reversing itself.

“This is moving in the wrong direction for DoD. They’re losing at the FCC, and they’re making zero progress in reversing that loss at the agency,” the FCC source said. “It’s pretty clear at this point that the only way this result changes is through legislation. That’s DoD’s main path forward.”

Legislative Push

There are currently two legislative vehicles that are in play, both spearheaded by Senate Armed Services Committee chairman Sen. Jim Inhofe, R-Okla.. The first is language in the committee’s version of the National Defense Authorization Act, which would prohibit the use of defense funds until a cost estimate of government GPS capabilities that could be impacted by Ligado is submitted. It would also require an independent review of technical data from the National Academies of Science and Engineering.

Such language would slow, not stop, Ligado’s move towards using L-Band. More damaging to the company would be Inhofe’s RETAIN GPS act, which has yet to be introduced but was first previewed last week on C4ISRNET. That bill would potentially impose massive costs on Ligado, requiring the company to cover any costs associated with GPS issues caused by the system for both government and commercial entities.

Inhofe is still gathering co-sponsors for the legislation, which could be introduced soon. The NDAA may be the best play, as the defense bill is seen as must-pass by congressional leadership. However, members of the Commerce committees on both sides of Congress may push back on attempts by the defense authorizers to step into their lane, as the oversight committees for the FCC.

Ligado, meanwhile, appears to be prepared for a legislative fight. The company has upped its lobbying game extensively over the last year, bringing in a number of heavy hitters, including former House Armed Services Committee chairman Buck McKeon and republican lobbyist Matt Schlapp, the husband of former White House Director of Strategic Communications Mercedes Schlapp.

Chairman Jim Inhofe speaks during a Senate Armed Services nomination hearing on Capitol Hill in Washington, D.C., on May 7, 2020. (Photo by KEVIN DIETSCH/POOL/AFP via Getty Images)
Chairman Jim Inhofe speaks during a Senate Armed Services nomination hearing on Capitol Hill in Washington, D.C., on May 7, 2020. (Photo by KEVIN DIETSCH/POOL/AFP via Getty Images)

A key player in the legislative fight is Sen. Roger Wicker, R-Miss., the chairman of the Senate Commerce committee as well as a member of the SASC. Wicker has kept his comments neutral during the Ligado fight during hearings, but notably gave the three commission members a chance to deny accusations from DoD officials and Inhofe that the FCC vote happened in secret.

After the hearing, a senior government official derided several of Pai’s statements as “intellectual chaos” meant to obscure the facts of the case. In particular, the official pointed to claims Pai made about the use of spectrum that are directly contradicted reports done by the Pentagon, including which areas of spectrum are used by the DoD and which aren’t, as well as the fact Pai purposefully omitted mentioning the wide opposition from other government agencies.

“What wasn’t said is that every federal agency came down strongly and vigorously” in opposition to the Ligado plan, the government official said. “If every agency, bar none, has said no, stop, do not go forward, the American people should realize this is a proposal that should be left dead in its tracks.”

While several senators expressed at least sympathy for the argument that the Ligado process should be frozen while details are considered, Sen. Mike Lee, R-Utah., a former SASC member, does not appear to be one of them. Lee thanked Pai for providing technical details before ending his remarks with a commentary that grew more heated as he talked.

“When somebody is going up against an issue, one that the FCC has addressed over a decade, with great scientific expertise, and in an issue that is as great national importance as this one, they darn well better come to the argument armed with something other than the catchphrase ‘national security,’ or ‘trust us, we’re right,’ or ‘I can’t tell you why I think this because its classified, but trust us, national security dictates we don’t do this,’” Lee said.

“That’s wrong, they know its wrong, and we can’t let them get away with it.”

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