FCC-Commerce Spectrum Quarrel Dominates House Communications Hearing

House Communications Subcommittee members focused on the spectrum policy fracas between the Commerce Department and the FCC during a Tuesday hearing to a far greater extent than expected (see 1907150020). The quarrel involves NASA and NOAA concerns about potential effects of commercial use of spectrum on the 24 GHz band, sold in the recent FCC auction, on federal technology using adjacent frequencies (see 1905230037). Lawmakers also showed significant interest in the debate over the best plan for clearing spectrum on the 3.7-4.2 GHz C-band, though an industry-focused panel that appeared centered on the issue was truncated amid House votes.

Several top House Communications members made clear their displeasure with the current dispute. “I'm increasingly concerned” that President Donald Trump's administration “is not up to the task” of developing a coordinated U.S. spectrum policy aimed at ensuring the country's leadership on 5G, said House Commerce Committee Chairman Frank Pallone, D-N.J. “We are somehow unable to cobble together a coherent policy for managing our airwaves. Right now, there is a leadership vacuum.” Now the “FCC goes one way, the Commerce Department and NTIA go another,” Pallone said. “This lack of coordination affects a mind-numbing list of important bands of spectrum. In my opinion, the process has completely broken down.”

Coordination between NTIA and the FCC has “worked well” in the past, but “I’m very concerned that there has been a breakdown between” the two agencies “and other federal stakeholders,” said Communications Chairman Mike Doyle, D-Pa. “Over the last year and a half, several federal agencies have expressed deep concerns about a number of FCC proceedings related to spectrum policy including the Department of Education, the Department of Transportation,” DOD, Commerce and NOAA. “It makes a great deal of sense to look at bands and to repurpose them as needed, but it’s very concerning when cabinet officials are publicly fighting with the FCC over spectrum policy,” Doyle said.

Doyle and others cited the 24 GHz dispute as particularly worrisome because it could undermine the U.S. position on millimeter wave spectrum for the 2019 World Radiocommunication Conference (see 1905080040). Doyle referenced other disagreements, including between the FCC and ED over the commission's 3-2 approval of revised rules for the 2.5 GHz educational broadband service (see 1907100054). “It’s a strange day when Democrats agree with [Education Secretary Betsy] DeVos about education policy, but many of us are concerned that the FCC’s [EBS order] effectively stripped the educational purpose and benefit from the band,” Doyle said.

House Commerce ranking member Greg Walden, R-Ore., echoed Democratic concerns, saying he found the situation “a bit troubling” and he's dissatisfied “with what is happening.” Other members of both parties repeatedly pressed NTIA Senior Policy Adviser Derek Khlopin and FCC Office of Engineering and Technology Chief Julius Knapp on the dispute, including Reps. Bill Johnson, R-Ohio, and Billy Long, R-Mo. Johnson also said he's “disappointed” by the FCC's EBS order, questioning how the revised rules would benefit rural areas.

Disputed Claims

Walden later pushed Khlopin to give him a copy of a joint NOAA-NASA study of 24 GHz band interference submitted to the FCC, saying he's “tired of reading about this” in news reports and not being able to read it in full. FCC Chairman Ajit Pai disputed NOAA's claims during a June Senate Commerce Committee hearing and said they were part of a pattern of Commerce Department efforts to hinder efforts to free up spectrum for 5G (see 1906120076).

Doyle and others referred to a June 25 letter from Commerce Secretary Wilbur Ross to Senate Homeland Security Committee Chairman Ron Johnson, R-Wis., in which Ross disputed Johnson's claims that senior Commerce Department advisers were actively involved in those hindrance efforts (see 1906240063). Several communications sector officials and lobbyists said Johnson was referring to Commerce Deputy Chief of Staff and Policy Director Earl Comstock, though that official's name didn't come up during the House Communications hearing. “I believe your letter mischaracterizes” Commerce's “involvement in the push for 5G deployment and fails to appreciate the importance” of weather sensors deployed in spectrum adjacent to the 24 GHz band, Ross wrote Johnson.

Commerce, the FCC and other agencies involved in the interagency spectrum coordination process “reached a workable compromise” on the 24 GHz issue in late June, “which is why it is so disappointing to learn that you have been provided inaccurate information about Commerce's constructive role in the process,” Ross said. He dismissed the FCC's concerns with the NASA/NOAA studies of the 24 GHz interference, saying “the FCC has undertaken no study and published no documents to justify” its proposed buffer zone between commercial use of the band and adjacent federal incumbents. “Just because the FCC does not agree with the results of the NOAA/NASA analyses does not mean the science is 'fundamentally flawed,'” Ross said.

Knapp disputed Ross' claims of a 24 GHz buffer agreement, telling lawmakers Tuesday the FCC believes no workable compromise exists. Khlopin said Ross seemed to believe that at the time he wrote the letter to Johnson such a deal had been reached, but that's not the case. Both officials attempted to downplay the kerfuffle, saying the two agencies and other parties are continuing talks.

C Band

Doyle confirmed during the hearing and in a Monday interview that he's circulating draft C-band legislation.

Communications Vice Chair Doris Matsui, D-Calif., “and I are working on a proposal to make a significant amount of mid-band spectrum available over the next five years, and in a way that helps accelerate the deployment of 5G,” Doyle said during the hearing. “We want to try to do something bipartisan” and are actively seeking support from House Commerce Republicans, Doyle told us Monday. “We think it's really important that we get something that's bipartisan and can pass the Senate. It's a complicated procedure and a tricky needle to thread.”

Matsui's “looking forward” to collaborating on Doyle's draft measure to ensure C-band spectrum “is reallocated quickly and equitably. We cannot afford to wait.” She's floating the draft Wireless Investment Now in (Win) 5G Act. It would set up a tiered system for satellite companies to benefit from an FCC-led C-band auction in which freeing additional spectrum would increase satellite companies’ share, up to 100 percent if they clear all 500 MHz (see 1906260078).

“There's a lot of discussion back and forth on whether to proceed with C band or not, and I find myself more on the FCC side of things on these matters,” Walden told us Monday. “We should allow the process to proceed” for now. “We're trying to clear spectrum” and “get it to a higher, better use,” he said. “But you've got to remember the incumbent users and try to manage a way through.” Recent comments in docket 18-122 show consensus on legal authority for a particular method of clearing the band remains elusive (see 1907050035).

A truncated examination of the C-Band Alliance and other proposals for clearing the spectrum only scratched the surface of lawmakers' views on the debate.

CBA Plan

Communications members from both parties questioned some aspects of the CBA plan.

CBA Executive Vice President-Advocacy and Government Relations Peter Pitsch called the group's proposal the fastest, best route to free up spectrum in the, saying “every existing customer will be kept whole” and will be able to “continue to distribute their programming and not incur the costs of the transition."

Some other private sector witnesses criticized the CBA proposal and promoted their own alternatives. They included Competitive Carriers Association Senior Vice President-Legislative Affairs Tim Donovan and New America Open Technology Institute Director-Wireless Future Project Michael Calabrese.

The Senate Indian Affairs Committee, meanwhile, said it postponed its planned Wednesday hearing on the findings in a 2018 GAO study on tribal spectrum access. The report, sought by the committee, said the FCC needs to improve outreach to tribal governments to improve those entities' access to spectrum (see 1811140069).