DoD Asks the FCC to Enhance Its Contractual Leverage Through Regulatory Fiat

by on July 15, 2013 · 0 comments

“In today’s globally competitive era, the United States cannot continue to delay its transition to Internet-enabled infrastructure.”

Last week the Department of Defense (DoD) filed comments with the FCC in its proceeding examining the transition from outdated telephone technologies to Internet Protocol (the “IP-transition”). The comments, which were filed “on behalf of the consumer interests” of the DoD by a civilian attorney in the Army’s Regulatory Law Office (emphasis added), ask the FCC to “consider potential adverse consequences on public safety and national security” of requiring federal agencies to “prematurely transition to different technologies.”

What are these potential adverse consequences? The italicized “interests” of the DoD provide the answer: It wants to avoid incurring any costs to upgrade its outdated telephone technologies to modern, Internet Protocol technologies when its current communications contracts expire in 2017.

While that may be a legitimate concern for DoD procurement plans, federal budgetary pressures are not a legitimate regulatory concern. The FCC cannot require private companies to maintain outdated technologies in order to reduce DoD budgetary pressure or give it additional leverage in its future contract negotiations. The appropriate forum for addressing federal budgetary concerns is Congress, not the FCC.

The DoD filing nevertheless asks the FCC to consider the impact of the IP-transition on federal contracts with private companies for communications services that use legacy telephone technologies. Most of these contracts are administered by the Government Services Administration through its “Networx” contracting program, which is “set to expire” in 2017. The replacement program, which is considering the use of “standardized IP” infrastructure, is entitled “Network Services 2020”. The obvious implication of this date is that the federal government is considering extending the “Networx” program beyond its set expiration and is concerned that the IP-transition could hinder its negotiations.

Though the federal government is free to seek an extension of its Networx contract until 2020, it cannot use federal regulation to increase its negotiating leverage. The FCC has a “longstanding policy” of declining to adjudicate private contractual issues – a policy that is particularly appropriate when the federal government is a party to the contract. It would not serve the public interest to deny consumers additional access to modern technologies merely to give the federal government additional leverage in its contract negotiations.

That does not mean the FCC should ignore public safety and national security. It should honor the DoD request to participate in the trial selection process and coordinate with it and other government agencies throughout the IP-transition to avoid disruption to critical communications.

It should also recognize, however, that the other concerns raised by the DoD are primarily commercial in nature. The DoD filing carefully avoids saying that the legacy telephone network is technologically necessary to meet its operational demands. It instead “embraces advances in telecommunications technologies and services” and “applauds” efforts to pursue “more efficient, reliable and functionally robust” networks – so long as the DoD isn’t required to “prematurely” (i.e., prior to 2020) expend any funding on such networks.

These budgetary concerns are misplaced. The capabilities offered by the all-IP networks of the future will ultimately enhance public safety and national security, while improving education and healthcare, and significantly contributing to our Nation’s economy. In today’s globally competitive era, the United States cannot continue to delay its transition to Internet-enabled infrastructure. The longer we wait to begin our transition, the more likely it is that another nation’s flag will greet us when we finally reach its end.

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