By Jimm Phillips and Matt Daneman, originally published in Communications Daily on Monday, December 7, 2020.

Conference FY 2021 NDAA Revises Anti-Ligado Provisions, Contains No CDA S. 230 Repeal

Hill conferees’ version of the FY 2021 National Defense Authorization Act retains some modified language from separate House- and Senate-passed versions of the measure (HR-6395/S-4049) aimed at hindering Ligado’s L-band plan rollout, as expected (see 2011230063). Ligado’s supporters and opponents aren’t completely satisfied with the language, though both sides spun it as a relative win. Some also believe it’s unlikely the FCC will act soon on the Ligado approval petitions for reconsideration pending before it 
(see 2005210043). The FCC didn’t comment.

The conference NDAA includes language on other tech and telecom matters, but nothing to repeal or revamp Communications Decency Act Section 230, as expected (see 2012020068). Other provisions include language from the Reliable Emergency Alert Distribution Improvement (Readi) Act (HR-6096/S-2693), Utilizing Strategic Allied (USA) Telecom Act (HR-6624/S-3189) and Spectrum IT Modernization Act (HR-7310/S-3717). Modified HR-6624/S-3189 would provide $75 million for an NTIA-managed open radio access network R&D fund. The NDAA also includes language enacting 26 of the Cyberspace Solarium Commission’s March recommendations (see 2003110076), including to establish a national cyber director within the executive office of the president.

President Donald Trump repeated his threat to veto the NDAA if it didn’t include an outright repeal of Section 230. Not including it is “so bad for our National Security and Election Integrity,” he tweeted, pointing to Senate Armed Services Committee Chairman Jim Inhofe, R-Okla., as the main person behind the refusal. Inhofe was among the Republican Hill leaders who publicly distanced themselves from the bid to attach Section 230 language to the NDAA. Inhofe’s office didn’t comment.

National Economic Council Director Larry Kudlow told reporters Trump “would like to see a liability shield reform with respect to these social media companies. And I happen to agree.” It “looks to me like in this era of social media,” Section 230 requires a rewrite, and the “liability shield has got to be re-examined, at a minimum,” Kudlow said.

‘Interference’ Revisions

Conference negotiators agreed to modify some Ligado provisions to make them applicable only to instances where the company’s operations meet the FCC’s standard for harmful interference. The FCC in its April order approving the Ligado plan rejected using a 1 dB standard for determining harmful interference to GPS sought by the proposal’s opponents (see 2004230001) rather than the one the Technological Advisory Council (TAC) uses.

One revised provision, from HR-6395, would exempt DOD from a ban on using its funding to “retrofit any [GPS] device or system, or network that uses” GPS “to mitigate interference” from Ligado’s L-band operations actions “seeking compensation for harmful interference” from Ligado or GPS “receiver upgrades needed to address other resiliency requirements.” HR-6395 originally allowed an exemption for seeking compensation for all Ligado interference.

The other revised provision, from S-4049, would bar use of DOD funds to “comply” with the FCC’s Ligado order until the secretary of defense submits “an estimate of the extent of covered costs and the range of eligible reimbursable costs associated with harmful interference.” The section originally required an estimate of costs associated with all interference.

The conference NDAA includes two other anti-Ligado provisions. One would bar the Pentagon from signing, extending or renewing a contract “with an entity that engages in commercial terrestrial operations” on the L band unless the secretary of defense “has certified to the congressional defense committees that such operations do not cause harmful interference” to DOD GPS devices. The other would direct the defense secretary to contract with the National Academies of Science, Engineering and Medicine to do “an independent technical review” of the order, including an assessment “of the potential for harmful interference” to GPS and satellite systems for DOD operations.

The modified language will likely assuage many of the concerns Inhofe and other lawmakers have voiced since the FCC approved Ligado’s plan in April (see 2004200039) because, if passed, it “sends a strong signal to the FCC that Congress is not happy” with the decision, said a lobbyist who opposes the proposal. It doesn’t mean lawmakers won’t try to attach additional anti-Ligado language to a FY 2021 appropriations measure, including Inhofe’s proposed Recognizing and Ensuring Taxpayer Access to Infrastructure Necessary (Retain) for GPS and Satellite Communications Act (see 2006220055), lobbyists said. Ligado and Inhofe’s office didn’t comment.

House Consumer Protection Subcommittee ranking member Cathy McMorris Rodgers of Washington, the Republican Steering Committee choice to be the new Commerce Committee ranking member (see 2012020070), said Friday she doesn’t back the NDAA’s anti-Ligado language. She was one of several Commerce Republicans who publicly supported the FCC’s decision earlier this year. Others included outgoing committee ranking member Greg Walden of Oregon (see 2005190061).

“The NDAA shouldn’t target an American company that will hurt our ability to beat China in the 5G race,” McMorris Rodgers said. “We must protect” DOD’s “mission and ability to keep America safe,” but “the same should go for” the FCC since it’s the expert “agency on commercial spectrum” issues. “We should let the FCC do its job and stop these interagency fights not rooted in facts,” she said.

No Satisfaction?

Neither side is likely happy because the GPS community’s goal was to get Ligado’s terrestrial wireless plans shut down altogether via the NDAA, which didn’t happen, but Ligado faces difficult DOD contractual language, said engineering consultant Dennis Roberson, who worked for Ligado and chairs TAC.

“The killer problem” for Ligado is language barring DOD from extending or renewing contracts with any entity doing commercial terrestrial operations in the 1525-1559 MHz and 1626.5-1660.5MHz bands unless DOD certifies the operations don’t cause harmful interference to DOD GPS devices, emailed satellite and spectrum consultant Tim Farrar. That language was seen as a particularly problematic issue for Ligado and thus most likely not to make it through committee, he said. “That is a big win for the GPS industry that they didn’t necessary expect,” Farrar said.

“Ligado dodged a bullet, but the anti-Ligado folks still have a gun,” emailed Public Knowledge Senior Vice President Harold Feld. The NDAA’s language shift to “harmful interference” should require DOD to use the FCC standard, he said. Giving the secretary of defense the power to waive the contracting provision “essentially push[es] the fight down the road until they get a customer that would be impacted,” Feld said. However, that waiver gives Ligado critics an opportunity to make their case against waiving the contracting provision.

The NDAA “could have been much worse for Ligado,” but “this language is still lamentable,” said Information Technology and Innovation Foundation Broadband and Spectrum Policy Director Doug Brake. “We should be able to trust that process without resorting to language targeting an American company in the NDAA.” The inclusion “of the ‘harmful’ modifier is good, indicating this determination will be up to experts at the FCC,” Brake said. “But we still lack good tools to quantify what counts as harmful interference.”

The amended language is “a win for Ligado and for FCC authority,” said New America’s Open Technology Institute Wireless Future Program Director Michael Calabrese. He praised “the critical recognition that all interference is not ‘harmful interference’ that should necessarily preclude new or shared uses of bands that impact military or other incumbent operations.” Spectrum policy “would be severely disrupted if the FCC, as the expert agency, could not rely on a fairly consistent definition of harmful interference,” Calabrese said. “The revised NDAA provisions appear to open the way for Ligado to proceed, while also ordering a study that will hopefully shed some additional light on how best to achieve coexistence between GPS and Ligado’s commercial 5G services.”

“A large bipartisan and bicameral conference committee comprised of the best Congressional experts on armed services matters as well as satellite communications issues” sent “a powerful message opposing the FCC’s Ligado order,” emailed Cooley’s Robert McDowell, who represents decision challenger Iridium.

The NDAA language could give the FCC a level of reassurance that it can go forward with denying the recon petitions, as Chairman Ajit Pai seems likely to do, said Phillips Lytle’s Joel Thayer, outside counsel for tech think tank Lincoln Policy. The NDAA also doesn’t change the likely trajectory of denial of those recon petitions then being challenged in federal court, he said.

Pai was seen by some as still likely to act on the petitions this year (see 2006120033), though that’s complicated by the “pencils-down” directive by members of Congress as the agency moves to Democratic control, a Ligado proceeding lawyer told us. The FCC is seen by many as unlikely to act on the recon petitions, so all the focus has been on NDAA, Farrar said.

The Ligado proceeding shows “troubling” prospects for DOD spectrum sharing going forward, with DOD having a playbook of putting up serious fights and leveraging its pull with Congress, Thayer said.