This is really getting in the weeds, but some of us find the view at ground level (or under water)
fascinating.
A Wall Street Journal story on Monday mentioned a public dispute between two agencies, the Federal Aviation Administration and the Federal Communications Commission over the effects of the FCC’s 5G rollout on aviation safety. This disagreement shows the tension between the need for government agencies to be able to speak frankly among themselves before making a decision, and the public’s right to know all material facts that could affect their businesses.
On December 1, 2020, according to the WSJ, the FAA sent a letter to the FCC expressing concern over the effects 5G cellphone services auction could have on aviation safety. The FAA said those services could interfere with cockpit safety systems. The two agencies are in talks, but if the FAA isn’t satisfied with the results, it could issue safety warnings that could result in, as the WSJ put it, “significant flight disruptions.”
That’s all interesting, but what’s really fascinating is that the FCC didn’t place the FAA’s letter in the docket for public comments. The WSJ points out that if the FCC had made the FAA’s letter publicly available, as it does with comments from industry and the rest of the public, sharing might have produced a greater sense of urgency that would in turn have prodded more productive negotiations on the safety issue. However:
a last-minute whiff of controversy could have hurt the price of the [5G] licenses the government was about to sell. “It really is theft from these companies, not telling them the whole story,” said Diana Furchtgott-Roth, a former Transportation Department official involved with writing the letter. “If the FAA’s administrator comes out and says there’s danger to planes, that would depress the price.”
The FCC’s actions is perhaps an extreme example of hiding the ball, but it raises issues for regulated space industries. The FAA, for instance, consults with other agencies as it prepares its notices of proposed rulemaking (NPRM). The FAA places those notices in the public docket and solicits public comment.
Suppose the FAA is talking to the U.S. Air Force about its launch safety requirements. If the Air Force were to write to the FAA with its concerns about the FAA’s proposal, the launch industry might wish to know what those concerns are. If the FAA is taking them into account, the public should have an opportunity to respond to them. If the public doesn’t know what the other agency said, it can’t comment comprehensively. The 5G scenario shows that relying on an agency’s judgment as to what to disclose may not be a reliable approach.
I do wonder what the consequences would be for a private company that failed to disclose such material facts prior to putting something up for sale?