Pai, Other FCC Commissioners at Hearing Blast Commerce Dept. for Hindering 5G Work

FCC Chairman Ajit Pai and other commissioners placed blame for recent hiccups in work to free up spectrum for commercial 5G use squarely on the Commerce Department and NOAA, during a Wednesday Senate Commerce Committee hearing. Pai used the panel to announce pending FCC action to improve the agency's broadband coverage data collection practices, which have come up repeatedly in Capitol Hill communications policy hearings (see 1905150061). Senators also used the panel to probe FCC actions on other communications policy items, including GOP commissioners' public support for T-Mobile's proposed buy of Sprint.

Pai blamed the Commerce Department for recent problems developing a coordinated U.S. 5G strategy, telling Sen. Ron Johnson, R-Wis., the department “has been very active in trying to undermine the United States' position” on millimeter wave spectrum for the 2019 World Radiocommunication Conference (see 1905080040) and is making it “more difficult for us to free up spectrum” for 5G. Commerce “has been blocking our efforts at every single turn and the situation frankly has gotten worse since” then-NTIA Administrator David Redl resigned in May (see 1905090051). Redl's departure was seen as leaving a big hole at NTIA amid work on 5G strategy (see 1905140063).

Focus on Commerce's 5G actions began after Senate Commerce ranking member Maria Cantwell, D-Wash., raised concerns about NOAA's belief that commercial use of spectrum in the 24 GHz band sold in the recent auction could interfere with Earth observation sensors used for weather and climate forecasting, which use adjacent spectrum in the 23.8 GHz band. Senate Commerce plans a hearing on the issue, Cantwell said. She worried freeing up spectrum on the 5.9 GHz band could interfere with auto-safety services on the frequency.

Pai and other commissioners said a 2014 European Centre for Medium-Range Weather Forecasts study of the effects of withholding use of systems on the 23.8 GHz that NOAA recently used to justify its concerns is fundamentally flawed. Commercial use of the 24 GHz band for 5G use will be a “rifle shot” rather than a “shotgun blast,” Pai said. The FCC has never gotten a validated study that finds the interference issues NOAA is claiming. He wrote to House Science Committee leaders in April about their concerns about potential interference for federal interests near the 24 GHz band (see 1905230037). Commerce and NOAA didn't comment.

The FCC also found the auctioned 24 GHz spectrum is outside the 250 MHz emissions buffer zone from the weather sensors, Pai said. If calls for a broader buffer “were to prevail, not only would the [24 GHz] spectrum be unusable for 5G domestically, but we would also put at risk the U.S. position” at WRC “where the overall world limit for the 24 GHz band among other 5G bands will be set,” Pai told Sen. Marsha Blackburn, R-Tenn. “If that limit is artificially high around the world, then we will forever forestall … development of these millimeter waves for 5G.”

Commissioner Jessica Rosenworcel said the situation is “embarrassing” and her agency should “resolve these issues before we put the spectrum to market in an auction.” The “integrity of our future auction structures are at stake,” she said. Commissioner Mike O'Rielly said NOAA was at fault for bringing up the 2014 study “at the 11th hour.”

Broadband Data

Pai announced he plans to circulate a broadband mapping order for a vote at the FCC's Aug. 2 meeting.

It “would result in more granular and more accurate broadband maps,” in response to criticism of FCC coverage data collection practices, Pai said. The proposal would require “broadband providers to report where they actually offer service, below the census block level” that's used in the current Form 477 collection process, Pai said. The proposal also will aim to “incorporate public feedback into our mapping efforts.” Pai previously wrote a group of senators he believes a continuous public feedback mechanism could improve FCC broadband maps, citing the commission's speed test app as an example of a useful tool (see 1905070019).

Pai didn't give much additional detail on the proposal but referenced it in response to mapping questions from Sens. Shelley Moore Capito, R-W.Va., and Jon Tester, D-Mont. “We're going to be looking at other sources of information, like crowdsourcing” as part of the order, Pai told Capito. It also mirrors the intent of the Broadband Interagency Coordination Act (S-1294), he told Tester. The bill would direct the FCC, NTIA and Agriculture Department to sign a memorandum of understanding to coordinate on broadband funding (see 1905020058).

Senate Commerce Chairman Roger Wicker, R-Miss., began criticizing the FCC's broadband mapping practices even before Pai announced the pending proposal. Wicker said he plans to file the Broadband Deployment Accuracy and Technological Availability (Data) Act with Sen. Gary Peters, D-Mich., and others to “require the FCC to collect more granular data about where wired, fixed wireless, and satellite broadband is available and where it is not.” Senate Communications Subcommittee Chairman John Thune, R-S.D., and Sen. Amy Klobuchar, D-Minn., are co-sponsoring the bill, Wicker said. The legislation would be a sequel to S-1294, which Senate Commerce advanced in May (see 1905150065).

Wicker believes the commission “should not to seek a move forward on broadband funding decisions until it gets the maps right.” Inaccurate maps “have contributed to the persistent broadband gap” and the FCC needs a “completely new approach to developing accurate and reliable maps,” he said.

T-Mobile/Sprint

Senate Communications ranking member Brian Schatz, D-Hawaii, and Senate Consumer Protection Subcommittee ranking member Richard Blumenthal, D-Conn., raised concerns about likely FCC support for T-Mobile/Sprint on an expected 3-2 vote (see 1905200051).

Blumenthal raised concerns about the “vague promises” from T-Mobile aimed at assuring federal approval of the transaction and noted the new lawsuit by nine states and the District of Columbia in the U.S. District Court for the Southern District of New York aimed at blocking it (see 1906110044). Blumenthal also pressed Pai on whether Trump administration officials contacted him to urge approval of the transaction. Pai said he hadn't received such contact but would alert Senate Commerce if contact occurs.

Schatz criticized Pai, O'Rielly and Commissioner Brendan Carr for signaling their early support for the deal, questioning whether that was “normal” practice. Desires for the FCC to become a less partisan institution in which 5-0 decisions are more frequent haven't “come to pass” and both the T-Mobile/Sprint and broadband mapping proposal announcements raise questions about whether Pai is keeping Rosenworcel and Commissioner Geoffrey Starks “in the loop,” he said. Pai countered that he has repeatedly prioritized transparency and giving fellow commissioners the opportunity to lead on policy issues.

Sen. Roy Blunt, R-Mo., voiced support for T-Mobile/Sprint and said “not everybody agrees” with the Democratic attorneys general who brought the states' lawsuit. Those AGs “frankly probably haven't spent a whole lot of time thinking about [the U.S. wireless] marketplace or how important it is that there's a third strong competitor,” Blunt said. “I think one of the options that you could easily have here is you could have no competitor” beyond top carriers Verizon and AT&T “if the third and fourth competitor don't figure out how to be in a truly competitive place.”

Other Issues

Other issues also came up during the hearing.

Blumenthal noted ongoing concerns about the pace of the FCC's investigation into wireless carriers' location tracking practices, including the sale of customer location tracking data allegedly accessed by bounty hunters (see 1805240073). Blumenthal said he's “absolutely appalled” the commission has no further information on the probe and believes lawmakers are “going to look back on these hearings and say that the FCC and maybe [Senate Commerce] fiddled and mumbled while our privacy and security burn.” Pai said staffers are “wrapping up the investigation and will be coming to me with recommendations in the near future.”

Sen. Tammy Duckworth, D-Ill., touted her Tuesday filing of the Martha Wright-Reed Just and Reasonable Communications Act (S-1764) to address high rates for inmate calling services. The bill would affirm the FCC's ability to use its current procedures and authority to address “unjust and unreasonable” inmate calling rates, Duckworth's office said. It would ensure “consumers receive just and reasonable charges for all intra- and interstate inmate calling” based on Communications Act Section 202 standards and that “just and reasonable rates apply regardless of technology used, like video visitation services and other advanced communications services.” Verizon said it supports S-1764, as do the Center for Media Justice and Free Press.

Thune and Sen. Ed Markey, D-Mass., cited the Senate-passed Telephone Robocall Abuse Criminal Enforcement and Deterrence (Traced) Act (S-151), which would increase FCC authority, allowing the agency to levy civil penalties of up to $10,000 per call when the caller intentionally flouts the Telephone Consumer Protection Act (see 1905230048). Senate Commerce Security Subcommittee Chairman Dan Sullivan, R-Alaska, said he remains dissatisfied with the pace of FCC work to assuage his concerns about the effect of USF Rural Health Care Program rules on Alaska providers. The issue led Sullivan to place a hold last year on Senate reconfirmation of Carr that he lifted after reaching an agreement with Pai (see 1812200033).

The House Appropriations Committee, meanwhile, advanced 30-21 Tuesday the FY 2020 Financial Services budget bill (see 1906110069). The measure would give the FTC $349.7 million and the FCC $339 million (see 1906030040).