Follow Up On Medical Devices: Smarter Devices And Smarter Policy, Not More Bandwidth

So I’ve been following up more since initial post yesterday. As a general matter, I recommend interested readers start with this piece from the FDA’s website, followed by the FCC’s Office of Engineering and Technology (OET) FAQ on wireless medical telemetry devices and the digital transition. OET does not see this as likely to cause a big deal because there’s plenty of empty “white spaces” out there after the digital transition and users can adjust their devices as digital televisions come online.

Well, I hope they are right about that, although I’d feel a lot better if someone were responsible for actually keeping track of this and making sure that users get informed. Under the rules, there are notification requirements for when a station goes live with its digital signal so hospitals can make changes. That works as long as folks are paying attention, of course. In any event, in case OET is looking for more work (or someone on the Hill wants to step up), I would suggest that it would be awfully nice to know what the state of the industry is. But I suspect the right place to do that is really the FDA not the FCC, or perhaps the U.S. Department of Health and Human Services.

But there is a broader lesson here. As with wireless microphones and a host of other specific low power applications, the real problem is not capacity. The problem is that we have a legacy system that slices spectrum uses into these discrete little services rather than allowing general low power unlicensed use and using cognitive radios to avoid interference.

Hospitals provide a particularly useful environment for smart devices, because they have so many noisy devices, sensitive devices, and such an expanding need for wireless devices for medical telemetry. Imagine a device that works equally well in all locations of the hospital without putting other systems at risk because it senses and adjusts for its radio frequency environment in a real-time basis. If another doctor starts up a device in a neighboring bed that is noise generator, the device monitoring my patient will move to a clear frequency. Devices and systems could even be tagged for priority, so that a mobile monitor attached to a patient knows that it must give the “right of way” to the cardiac ward systems if they come into conflict.

But more specifically here, there is nothing that existing wireless medical telemetry devices authorized in the band do that could not be replicated more flexibly and at lower cost by authorizing generic low-power white spaces devices. This is essentially the same problem as with wireless microphones. If wireless microphones had never received a special dispensation to function in the broadcast white spaces as a licensed ancillary service, you could replicate these systems with unlicensed white spaces devices. But, like the QWERTY typewriter, they are an embedded technology. And they have a constituency that, quite logically, resists change and argues that it plays an important role that generic devices could not replicate.

We thus have the irony of everybody agreeing there is “plenty of white space” for existing secondary users like wireless microphones and medical telemetry, but supposedly no room for the next generation of devices that could do the job of both technologies and bring us a host of other applications besides. We could cure this with more powerful cognitive radios, but the same natural conservatism by incumbents against any intrusion in “their” spectrum makes any movement in that direction politically difficult (as demonstrated by the FCC terminating two promising proceedings last year).

We therefore have the classic political and collective action result of fixing the wrong problem, at least from a public policy perspective. Rather than expanding wireless use generally, we make the new, more useful generic technology subordinate to the existing stakeholders. It is rather like what would have happened if harness makers and farriers had been able to demand that automobiles must protect their industries before being allowed to share the road with the horse and buggy.

Hardly a new problem or an original observation, I recognize. This has been the lament of spectrum reformers since five minutes after the first licenses were issued and the rest of us got cut off. Still, I keep hoping that this time around we’ll manage to get the right result and not let the embedded old technology trump the next generation of users.

Stay tuned . . . .

Paging Hospital Techies: You Have Bigger Worries Than White Spaces

CNET has this story about how “Hospital Techies” (notably medical monitor manufacturer GE) are worried that white spaces devices will mess up their medical systems.

Bluntly, “hospital techies” have bigger problems. As the CNET article observes, but lightly passes over, some unknown number of hospitals are using legacy medical monitoring equipment that will stop working after the digital transition. So while the odds of white spaces devices (WSDs) interfering with actual medical equipment on the approved set aside, Channel 37, approaches zero, and WSD interference with legacy equipment is equally unlikely, we may face a total meltdown in poor hospitals of medical monitoring equipment.

Rather than waste time on white spaces, I would say manufacturers like GE Healthcare need to start working with the FCC (and Congress) to engage in a massive education and outreach effort equal to what the FCC has done with the NAB and retailers to educate the public. That means stop selling any legacy equipment, require manufacturers to notify customers that have legacy equipment that it may stop working, and find out how many hospitals are likely to lose medical monitoring equipment after the DTV transition happens. A little funding from Congress to help poor hospitals that can’t afford to upgrade wouldn’t hurt either.

But worrying about white spaces is like worrying about whether a candle will blow over when a brush fire is bearing down you. Unless folks wake up to the danger, we may get seriously burned.

More analysis below . . .

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Sense of Place

I think we normally speak of work being done “in Powerpoint,” “in Word,” and so forth. This morning I looked at a transcript of people discussing virtual worlds while in one. The words “Qwaq” and “Forums” appear once each. The word “here” appears 49 times. We are finally getting to the point of having discussion about the results, not the technology. The program itself disappears, in just the same same way as we usually discuss being “at a Web-site” rather than “in Firefox” or “in Safari.” (Internet Explorer users may indeed reflect their tool’s relative intrusion by thinking of their activity as being “in IE” more often.)

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Anti-Shame League holds its annual bash

In the spring of 1980 in Boston there was a murder trial of a notorious pair of thugs, ghetto low-lifes who had raped, murdered and robbed a young nurse in her own home. At the trial, the prosecutor asked one of the murderers about a certain boombox, proved to be the nurse’s, that was in the man’s possession when he was arrested. The exchange went something like this:

Prosecutor: You took that boombox from her apartment.
Murderer: Yeah.
Prosecutor: But when you were arrested, you said that it was your boombox.
Murderer: It is mine.

Now that is what the absence of shame looks like.

For a more recent example of brazen shamelessness, we have the annual dinner of the White House Correspondents Association.

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Democratic People's Republic of Massachusettsistan

From yesterday’s Boston Globe, this depressing story about how the Massachusetts legislature does everything behind closed doors & under control of the Party Leaders. This is the way things inevitably turn out in a one-party state.

It’s almost enough to make one think of voting Republican (and maybe that’s why we seem to elect Republican governors like Romney pretty regularly). But the Republicans who run for state office here are generally even more abhorent than the Democratic hacks who run the show now, so we’ll probably stick with what we have. The Democrats may practice machine politics, but at least they’re not obsessively homophobic & insanely jingoistic warmongering anticonstitutionalists, which is the Republican trope here in Massachusetts as it is elsewhere across this great nation of ours.

It's Nice When the FCC Listens Part II — The Cyren Call Investigation Is Out.

When it rains, it positively pours. The FCC just released its Inspector General Report on whether Cyren Call screwed up the D Block. As readers may recall, I and my friends from the Public Interest Spectrum Coalition (PISC) sent a letter to the FCC as soon as the auction ended, asking the FCC to investigate the allegations over whether Cyren Call scared away D Block bidders. To his credit, Martin referred our letter to the FCC’s inspector general. The IG did a quick and thorough job, which you can read here. I shall add that it always gives one pause to find oneself as a subject heading in an IG report.

Generally, I’m satisfied with the report, which confirms my own suppositions after the anticollusion rules lifted and Cyren Call started yapping. Critically:

1) The meetings took place;

2) They were understood by all participants to be business negotiations, not “take it or leave it” demands;

3) The lease payment itself was not a deal breaker, but the potential bidders interviewed said that so many questions about potential financial liability and business model remained — aggravated in part by the uncertain role of Cyren Call — that they opted to stay away (or, as the IG concludes “this was just one drop in many different buckets”);

4) No FCC rules were broken and no one acted in bad faith, therefore there is no need for a referral for any criminal investigation.

Personal reflections below . . . .

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It's Always Nice When The FCC Listens

A few months ago, fellow Wetmachiner Greg Rose and I wrote a wrote a white paper on how to improve the FCC’s processes, make FCC rulemakings and proceedings more accessible to the public, and generally increase the legitimacy and reliability of FCC decision making. As one relatively easy change, we suggested the FCC post the agenda for open meetings far enough in advance that people can come in and make their last pitches to the agency before “Sunshine” (the period when communications stop under the “Government In the Sunshine Act”) kick in. As we explained, providing the agenda at the last second often advantages insiders who hear when an item is likely to go on the agenda, who therefore rush in while those who don’t know the item is going on Sunshine will lose their last chance to rebut arguments or press their case.

So it was pleasant to see Chairman Martin announce that from now on he will publish the likely agenda 3 weeks in advance. That should be a big help to everyone — including the other Commissioners, who will not suddenly find themselves with a week to digest an agenda of a dozen items.

Yes, it is a relatively minor change, but it is important in two ways. First, practical details really do matter. That sometimes gets lost in the fight over specific substantive issues. Second, it demonstrates a willingness by Martin to listen to criticism and take action — at least on the low hanging fruit. Such things deserve notice and suitable (although not overly elaborate) praise. Remember, public policy is made by human beings, and you get what you reward.

Stay tuned . . . .

American Radio Relay League v. FCC, Why A Good Case Will Bring Confusion And Bad Results

I should be overjoyed with the D.C. Circuit’s latest case: American Radio Relay League v. FCC. First, it affirms the right of the Commission to balance between unlicensed Part 15 users and licensed users, even where operation of Part 15 certified devices/services will cause occasional interference to traditional Sec. 301 licensees. Second, it requires the FCC to publish staff reports on which it relies in their entirety, rather than merely including in the record the parts with which it agrees. Third, it requires the FCC to address proposals by commenters with something more substantive than “well, we’ve always done it this way, so we see no need to change.”

All good news, yes? As a legal matter, absolutely. But as a practical matter, I expect it to slow down movement on the FCC’s white spaces proceeding. Why? Because it was a reversal and a reversal almost always causes the good folks in the Office of Engineering and Technology to go into paralysis for a few months while they try to figure out what the new legal standard is now. That the court actually affirmed the critical part on respecting the FCC’s balance between Part 15 and traditionally licensed services is likely to get lost in the noise — especially as we can expect NAB and other white spaces opponents to dwell on the reversal aspect and ignore what the court actually said. And, in the short term, OET now has to figure out how to issue a report on the WSD testing that conforms to the D.C. Circuit’s standard of disclosure. While I, lawyer and advocate that I am, consider this simply an exercise in “tell the truth and shame the devil,” we can expect that opponents will press their own reading of the case and that OET (and FCC’s Office of General Counsel) will now have the difficult and potentially time consuming task of deciding on the proper interpretation.

So a good case in fact, but more delays while the agency digests its implications.

More below . . . .

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Everyone in the Pool

The US Senate just passed a bill to outlaw discrimination in employment or insurance based on genetic testing. No one voted against it. It is expected to pass the house and be signed by President Bush.

No one thinks it’s ok to base insurance on genetic information?

Then why the hell do we allow insurers to charge so much more based on the absence of a Y chromosome? (I own a day care that is unusual in providing insurance for our staff. They are mostly women, and the extra costs are staggering.)

I had thought that insurance was supposed to be about pooled risk. Actuarial studies were supposed to be used to figure out how much total risk the insurer faced, so that they could set overall rates to be solvent and actually provide their service when needed. Instead, insurers seem today to default on payments. Moreover, they seem to use actuarial studies (and past-payments to individuals) to manage profit from micro-pools or individual accounts. Instead of being about pooled risk, today’s insurance is more like an individual savings plan.

NAFTA, New Orleans and pageants of fake democracy

The intrepid pro fair-use and anti-hate-speech activist known as Spocko has a link up to a bit by activist journalist Greg Palast about the “Summit for Security and Prosperity” (“SSP”) of the big cheeses of Mexico, the USA and Canada which recently happened in New Orleans, of all places. Whatever its stated purposes, Palast says, SSP’s real goal is the blending together of Canada, the USA and Mexico for the benefits of the non-national power/money elites under the fig leaf justification of NAFTA. Among many of Palast’s interesting point is that under new rules, Chinese products can come into the USA with all the rights and privileges of “Made in Mexico” products.

He also makes the point that the super wealthy are (perhaps ever have been?) post-national–it doesn’t make sense to think of them as “American” or “Mexican” or “Canadian” or “Saudi” or “Russian” or whatever. How many members of the nominally American upper crust, for example, do you think are serving in the military in Iraq and Afghanistan? Right.

Yet they realize that the trappings of nationalism are important to “the people”, even if “the people” are willing to let go of democracy itself.

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