Thune Wants Spectrum Management Fix; Ligado Fight Continues

Senate Communications Subcommittee Chairman John Thune, R-S.D., and other lawmakers expressed interest Thursday in pursuing legislation and other solutions to address what they see as a dysfunctional relationship between the FCC and other federal agencies on spectrum management. Thune later told us Capitol Hill is unlikely to address the issue this Congress given the dwindling legislative calendar. FCC approval of Ligado’s L-band plan wasn’t directly mentioned despite earlier expectations (see 2007220066).

Senate Commerce Committee Chairman Roger Wicker, R-Miss., and House Commerce Committee ranking member Greg Walden, R-Ore., indicated they plan to continue pursuing ways to ensure Ligado is able to go ahead with its plan despite passage of House and Senate FY 2021 National Defense Authorization Act versions (HR-6395/S-4049) that contain hindering language. The Senate voted 86-14 Thursday to pass S-4049, as expected (see 2006260051). The text would bar DOD from using funding to comply with the FCC’s Ligado order without further review (see 2006110026).

“I think there is a way for the FCC’s order to go into effect without” a risk of “harmful interference” to GPS systems belonging to DOD ands, Wicker told us. “Once the actual facts are shown, the order will be able to go forward without these other entities being disadvantaged.” He has largely stayed neutral in the dispute, in which Senate Commerce ranking member Maria Cantwell, D-Wash., sided with the leaders of the House and Senate Armed Services committees on behalf of Ligado critics (see 2005150061).

Walden confirmed that backers of two amendments to HR-6395 aimed at striking out its anti-Ligado language decided not to push House Rules to allow a floor vote on the proposals because talks are continuing (see 2007170059) in a bid to reach a deal. The House passed the measure earlier this week (see 2007210060). Hill leaders are “going to have to deal with this in conference” talks to combine elements of HR-6395 and S-4049, Walden told us. “We’re going to continue to fight” because “there’s an opportunity here to keep that spectrum free, as the FCC unanimously called for, without causing interference.”

Options

It’s “essential” the FCC “is allowed to rely on the independent technical and legal expertise of its bureaus and staff and remain the sole expert agency to regulate nonfederal uses of spectrum” as under the Communications Act, Thune said. NTIA and its Interdepartment Radio Advisory Committee (IRAC) must “continue to improve the efficiency” of federal agencies’ spectrum use.

Senate Communications ranking member Brian Schatz, D-Hawaii, called for a “fair and reasonable balance.” It’s “critical” the FCC “continues to operate in a nonbiased way so that our spectrum resources provide the most benefit to our country,” he said. "Weigh the concerns of incumbent users,” including the military, and don't “cripple existing uses of spectrum."

Thune told us he believes “we’re going to have to look at” whether “there’s a way we can come up with that creates a better, more systematic” process for resolving interagency disputes with the FCC on spectrum plans. “The disputes that we run into between” the FCC and other agencies show “there’s nobody really in charge," he said. “That creates a lot of uncertainty and I think it also makes it really hard to get the kind of spectrum freed up that we’re going to need to be competitive in a marketplace that’s changing.”

A legislative solution is “going to be hard” to advance in 2020 because “the Democrats for all intents and purposes have decided that they pretty much want to shut the place down until” after the Nov. 3 presidential election, Thune said. He suggested the only possible way to address it this year would be to “hitch a ride on” must-pass legislation. He said during the hearing a solution to the “bureaucratic obstacles” is desirable because “the stakes are so high” in ensuring the U.S. is at least able to remain competitive on 5G.

“It would be hard to” smooth out the interagency spectrum policymaking process via legislation, Wicker told us. “I don’t know how you would effectively specify the protocols.” Thune “asked the right questions” and “it’s really the issue of the day,” Wicker said.

Testimony

CTIA General Counsel Tom Power and others testifying Thursday suggested some changes are needed.

The structure and division of management responsibilities between the FCC and NTIA are largely “right,” but it’s clear there have been “stumbles the last couple of years,” Power said. “Greater collaboration between” NTIA and the FCC “at all levels” is needed to repair the relationship. CommScope Director-Business Development Mark Gibson didn't believe the existing process “is broken,” but review is needed because it’s now at least 86 years old.

Turnover in NTIA leadership “hasn’t helped," so “stability” would help calm the agency's interactions with the FCC and others, Power said. FCC Chairman Ajit Pai told the committee last year that the commission’s relationship with the Commerce Department worsened after the sudden departure of Administrator David Redl (see 1906120076). Doug Kinkoph is acting administrator (see 2005010068).

Aalborg University Visiting Researcher Roslyn Layton, an American Enterprise Institute visiting scholar, believes a wholesale review of the federal management process is needed and urged Congress to “do more work” to oversee both NTIA and IRAC. The interagency dispute over the Ligado plan and other spectrum matters is very public, but “there have always been” such fights, she said. Layton believes the best solution would be to sunset the federal government’s role in spectrum management but suggested requiring all federal agencies to pay for their spectrum holdings would be an acceptable alternative.

New America’s Open Technology Institute Wireless Future Project Director Michael Calabrese said a White House-level spectrum management team like the one the President’s Council of Advisors on Science and Technology recommended in 2012 (see 1207230040) is needed to be a “guiding and mediating” voice to oversee all agencies’ activities. Policymakers need to look at updating the existing memorandum of understanding between the FCC and NTIA because it's “very vague,” he said.

Other Issues

Thune and Sen. Jon Tester, D-Mont., noted their respective support and opposition to FCC plans for its Dec. 8 auction of spectrum on the 3.7-4.2 GHz C band. It’s “critical that auction goes forward without any delays,” Thune said. Tester cited the Spectrum Management and Reallocation for Taxpayers (Smart) Act (S-3246), which would set aside all but $11 billion from the auction for telecom (see 2001280041). He referenced the Wicker-led 5G Spectrum Act. S-2881 would set a graduated scale for amounts the FCC would be required to return to the Treasury from the C-band sale.

Sen. Richard Blumenthal, D-Conn., hoped Republicans’ coming proposal for a fourth major COVID-19 aid bill will include necessary emergency broadband funding. Senate Majority Leader Mitch McConnell, Ky., is expected to unveil the proposal next week. HR-6800, which the House passed in May, includes an $8.8 billion Emergency Broadband Connectivity Fund and $5 billion for E-rate (see 2005130059).

Sens. Amy Klobuchar, D-Minn., and Jacky Rosen, D-Nev., urged the FCC to extend the 2.5 GHz rural tribal priority application window deadline past Aug. 3 (see 2007230040). Klobuchar noted she and other senators have been pushing for an extension because tribal governments have been hurt by the pandemic.

Rosen cited a letter from the National Congress of American Indians, National Hispanic Media Coalition and others urging an extension to give “tribes time and opportunity to access unused spectrum to connect to the internet.” NCAI was among the groups that filed an emergency motion for stay earlier this week (see 2007220021).

Sens. Deb Fischer, R-Neb., and Marsha Blackburn, R-Tenn., noted the hearing was happening amid the start of the citizens broadband radio service priority access license auction (see 2007230074). Planning for the CBRS sale “has been a major step forward” in spectrum management, Fischer said. Blackburn noted the auction uses “a little bit different template” from other sales and said she has been “watching this very closely” to determine whether it’s “the right model.”