Spread of Agency Spectrum Fiefdoms Needs to Be Nipped in the Bud: Carr

The federal government is increasingly rife with spectrum fiefdoms among agencies, contrary to the FCC's core purpose as a centralized point of spectrum policy decision-making, Commissioner Brendan Carr said Wednesday during the Practicing Law Institute's annual telecom policy and regulation seminar. He said updating memorandums of understanding would help, but ultimately there must be deference to the expert agency making a final decision. Such "devolution" of spectrum policy will be a permanent fixture, but that trend needs some reversing, he said.

House Communications Subcommittee member Rep. Peter Welch, D-Vt., told PLI Congress will need to do strong oversight over how entities spend the $65 billion in connectivity money included in the Infrastructure Investment and Jobs Act (IIJA) (see 2111150074) “so we can make” sure funding “is being used wisely.” Getting that money “out the door” via NTIA and the FCC “is the easy part,” he said: Making sure it’s “well spent” is going to require further attention from lawmakers. Welch noted IIJA allows flexibility in what forms of broadband connectivity get funding. The “ideal” remains connecting households via fiber, but that’s “not a one-size-fits-all solution,” he said. There are “going to be places where” the answer “may include different technologies,” with the emphasis on getting consumers “the best possible” speeds. Welch believes prospects are “very good” for a return to stronger FCC net neutrality rules, noting Chairwoman Jessica Rosenworcel’s “a longtime champion” of at least bringing back the rescinded 2015 order.

Some agencies have been more open than others about coordinating infrastructure plan funding that's going toward broadband to ensure there isn't waste, fraud and abuse, Carr said. He said consistent agency coordination is paramount. He said invitations to coordinate got some response from the Education and Agriculture departments. He said Treasury and NTIA have been largely unresponsive. Neither agency commented. Carr said he's worried that there's seemingly more than enough money being made available federally to close the digital divide, but that spending won't close that gap.

T-Mobile Senior Vice President-Government Affairs Kathleen Ham said part of DOD, FAA and others creeping into spectrum policy comes from NTIA lacking a permanent chief, whom the FCC also had lacked until recently. John Leibovitz, partner at venture capital firm Columbia Capital and former FCC Wireless Bureau deputy chief, said the NTIA's permanent chair will come in with a variety of high-priority issues to tackle, including repair of interagency relationships.

Acting NTIA Administrator Evelyn Remaley said a big agency focus in coming months as part of the $42.5 billion broadband equity access and deployment program is connecting with communities on technical assistance and capacity building, as NTIA also doubles its staff. She said it's important states get in touch with the agency to discuss what challenges they have in broadband deployment. She said NTIA grants under the program will look at such issues as how states leverage other federal funds available from other agencies. Remaley also said NTIA worked out commitments with Japan, Australia and the Czech Republic for nations working together on improved 5G vendor network diversity, and the next focus is bringing in other nations to that coalition.

NTIA Senior Adviser Phil Murphy said some initial funding has been announced coming from the 2021 Consolidated Appropriations Act authorizations for U.S. infrastructure programs, but most of the announcements will come early next year. He said there was some delay because the programs were significantly oversubscribed as the agency evaluated and scored the more-than-expected applications.

Kansas Office of Broadband Development Director Stanley Adams said money from different programs often comes with somewhat different rules, and states are hoping to see NTIA guidance on flexibility. Murphy said that's a particular NTIA focus because so many funds are or will be available for broadband, and it foresees states leveraging multiple sources.

Hill Aides

Top House and Senate Commerce Committee telecom aides later echoed Welch’s emphasis on congressional oversight of the IIJA connectivity money.

Senate Commerce ranking member Roger Wicker, R-Miss., wants to ensure the $48 billion allocated for NTIA distribution goes to “unserved parts of the country” first given the broadband overbuilding that plagued the Broadband Technology Opportunities Program, said panel Deputy GOP Policy Director Kelsey Guyselman. House Commerce Republicans want to “make sure” all federal agencies that have gotten new connectivity funding since the beginning of the COVID-19 pandemic “are coordinating with each other,” said House Communications Chief GOP Counsel Kate O’Connor.

Senate Commerce Chair Maria Cantwell, D-Wash., has been among those pressing the FCC to improve its broadband connectivity data maps given the “big investment” Congress made in broadband via IIJA, said Senate Communications Subcommittee Senior Democratic Counsel Christianna Barnhart: Cantwell is also pushing for an increased emphasis on improving broadband affordability amid lawmakers’ interest in universal deployment. House Communications Chief Democratic Counsel Gerald Leverich and others noted lawmakers’ increased interest in a USF contributions revamp amid the glut of new federal broadband funding. That issue has traditionally been “pretty difficult to untangle,” he said.

All four aides noted renewed interest in legislation to reauthorize NTIA and the FCC’s spectrum auction authorities. The FCC’s general authority will expire at the end of FY 2022, but some authorizations for auctions of individual bands will continue past then, Guyselman said. Leverich noted House Commerce last month advanced the Spectrum Coordination Act (HR-2501), which would require the FCC and NTIA to update by the end of 2022 their memorandum of understanding for handling spectrum allocations (see 2111170052). Panel members will likely want to “revisit” some spectrum issues in 2022, he said. Senate Commerce is likely to want to hear more from NTIA on its views on what Congress should include in legislation to reauthorize the agency, but is first focused on securing confirmation for administrator nominee Alan Davidson, Barnhart said.

Infrastructure

Some speakers voiced hope for further infrastructure regulatory reforms.

Competitive Carriers Association General Counsel Alexi Maltas said big delays remain in getting regional approvals when trying to deploy on federal lands in the West, even if there has been higher-level sign-off. He said more access to multitenant environments is needed so more operators can get access to put up antennas or radios in buildings. Charter Communications Vice President-Regulatory Affairs Colleen King said providers still have difficulty getting access to poles in reasonable timelines, and there should be fair splitting of costs for replacing old poles.

Carr said federal lands access and pole attachments need more regulatory attention. T-Mobile's Ham said any infrastructure changes must focus on more than just small-cell deployments because macro cells also are important for 5G. Some wireless interests urge the FCC to set a date for a 2.5 GHz auction. While considerable federal funds are going to fixed connectivity, the FCC should also see mobile connectivity as an opportunity and work on getting mobility everywhere, Maltas said.

Kansas' Adams said he's cautiously optimistic about accurate FCC broadband maps being completed in time to help in awarding Jobs Act funding. USTelecom Vice President-Policy and Advocacy Lynn Follansbee said the challenge of hiring a fabric vendor for updated maps has been a stumbling block, but once that vendor is hired it should be able to hit the ground running and generate good maps.

Carr said a national security risk loophole in the FCC's equipment authorization process was closed with the Secure Equipment Act, but the agency needs to take a harder look at the use of forced labor in creating equipment used in U.S. supply chains. He said the authorization process should require demonstrating that products aren't being built using slave labor. He said numerous telehealth operations over the past year received FCC waivers, and the agency has to be sure those snap back at the end of the COVID-19 pandemic.

The 2-2 FCC has been productive, and Carr said he hopes bipartisan cooperation continues when the agency is back to full five-commissioner strength. He said there had been only one or two issues on which the commissioners weren't able to come to agreement at the 2-2 agency. Carr said a future bipartisan policy opportunity is USF contributions reform.

MVPDs

Broadcasters and incumbent MVPDs support the FCC classifying streaming services as MVPDs, but the agency is unlikely to prioritize video over broadband deployment and net neutrality, said media industry panelists. Once the FCC has a full slate of commissioners, it's likely to be concerned with broadband deployment and net neutrality as “focus No. 1” with less time spent on video issues, said Altice Vice President-Federal Affairs Cristina Chou.

If an over-the-top streaming service “looks like a duck” -- functions like an MVPD -- it should be treated as one, said Rob Folliard, Gray Television senior vice president-government relations and distribution. Offerings such as YouTube TV behave very similarly to cable providers, he said. If OTT services get swept into the same category as MVPDs, it could lead to a relaxation of regulations for such entities because of the enhanced competition, Chou said. "Porting over a 40-year-old regulatory structure” such as retransmission consent “doesn’t seem like the best idea,” said Jared Sher, Roku vice president-senior policy counsel. Sher said FCC regulation of streaming services would require action from Congress, but Folliard disagreed.

The 2018 quadrennial review is extremely unlikely to be completed before 2022, Folliard said. Since Rosenworcel is seen as against relaxing ownership regulations, Folliard expects the FCC to sit on the QR for a while, he said. Chou said the agency should act to more-tightly regulate ad sales sharing agreements between stations enforce joint retrans negotiation rules.

U.S. spectrum policy “seems to be moving away from a world where we could be certain about spectrum decisions,” said Jared Carlson, Ericsson director-regulatory and government relations, citing objections on spectrum sharing plans from the FAA. “The gold standard” for spectrum in other countries is exclusive-use spectrum rather than sharing, Carlson said.

The exclusive use mod el “generates value and clarity,” said Aura Network CEO Bill Tolpegin. For spectrum sharing to work, there must be efficient, careful management, said Donna Bethea-Murphy, Inmarsat senior vice president-global regulatory: “You can’t put the foghorn next to the sleeping baby.”

Issues like the conflict with the FAA could be avoided by the FCC and NTIA hiring more engineers, said Bethea-Murphy. COVID-19 has exacerbated a “talent drain” of the FCC's engineering "brain trust," she said.