Hurdles Ahead for Interagency Spectrum Coordination Bills, Despite Bipartisan Interest

Lawmakers are frustrated that interagency spectrum policy infighting that became endemic during the Trump administration continues to be an issue one year into Joe Biden’s presidency, despite early hopes for a shift (see 2010260001). Some on and off Capitol Hill believe the Biden administration’s handling of the high-profile C-band aviation safety fracas that preceded delays last month in AT&T and Verizon rolling out commercial 5G use on the frequency (see 2201180065) has stirred an increased appetite for enacting a legislative solution. Others want to hold off on legislation for the time being in hopes recently installed NTIA Administrator Alan Davidson, FCC Chairwoman Jessica Rosenworcel and other officials will be able to quickly nip the squabbling.

“We’re going to have to have a better process that allows input from all” federal agencies with a stake in spectrum policy, House Communications Subcommittee Chairman Mike Doyle, D-Pa., told us last week. “We’ve got to think about that whole process” again and figure out “how we avoid another incident like” the C-band dispute. “I’ve already had talks with” House Transportation Aviation Subcommittee Chairman Rick Larsen, D-Wash., and others on how to collaborate on a broader legislative approach, Doyle said: “We need a process that’s a little more defined” than the current one and “all agencies need to act in good faith.” NTIA should remain central in any revamped process given “you need an expert agency” at the helm, he said.

The FAA and aviation industry “had a long time” to seek changes to the C-band rollout “and it’s disturbing to a lot of folks that with all the time there was to work this out, that people waited until the last minute and then played the safety card,” Doyle said. But “you should always err on the side of safety” and the adjustments that the wireless carriers worked out with the FAA and the aviation sector “had to be done” to reassure the public. “It’s not like nobody’s tried this before,” as evidenced by C band use in Europe and elsewhere, he said: “While it’s not exactly the same” situation in the U.S., “the engineers at the FCC that I’ve talked to felt pretty strongly from the data that they had that this can be done safely.”

Shepherding any comprehensive process fix may be difficult to achieve this year due to the limited legislative window before campaigning for the Nov. 8 midterm elections becomes a priority, said Doyle, who’s retiring at the end of this Congress (see 2110180043). “The schedule’s getting tighter and there’s still a lot of” other legislative priorities “on our plate,” including an FY 2022 appropriations omnibus package and whether “we can get some” spending priorities from the scuttled Build Back Better Act (HR-5376) budget reconciliation package enacted via other bills, he said.

July Deadline?

“We’re going to try to get as much done as we can,” but lawmakers realistically have “until the end of July” to enact a package since Congress is “off for all of August, part of September and all of October,” Doyle said: He didn’t discount the possibility that discrete spectrum policy matters could pass separate from a more comprehensive bill, including legislation like the House Commerce Committee-cleared Spectrum Coordination Act (HR-2501) to mandate changes to the FCC’s 2003 memorandum of understanding with NTIA and a renewal of the FCC’s auction authority. The current authorization enacted via the 2012 spectrum law will expire Sept. 30.

“I’m not certain we’ll have to legislate yet” because Rosenworcel indicated to lawmakers she’s aiming to write MOUs with NTIA and other agencies that could improve the process without Congress needing to step in, said House Transportation Committee Chairman Peter DeFazio, D-Ore., after a Thursday Aviation hearing on C-band safety issues (see 2202030081). “I also have to talk to” Davidson this week “and see how he would propose to resolve this issue” given NTIA’s role in the interagency process.

“We’re going to be following closely” how the proposed FCC MOUs shake out, but progress on that may have to wait until the Senate approves Democratic commission nominee Gigi Sohn (see 2202020069), DeFazio said: “Something has to change, and it’s either got to be mandated by law or the FCC has to” reach agreement with other federal agencies on its own. He placed the onus on the FCC because he believes the commission has repeatedly “disregarded” other agencies’ input on other spectrum decisions, including its 2020 5.9 GHz order allocating 45 MHz of the band for Wi-Fi and 30 MHz for cellular vehicle-to-everything technology. The U.S. Court of Appeals for the D.C. Circuit is reviewing whether the FCC ignored the Transportation Equity Act and the Department of Transportation’s role in encouraging intelligent transportation systems when it reallocated the band (see 2201210054).

“We were hoping to come away from” the House Aviation hearing “knowing” whether legislation would be needed to fix the interagency process, but “that question is ultimately going to be answered by what happens between now and July, when the carriers’ current mitigation agreement is to expire, said subcommittee ranking member Garret Graves, R-La. "The other thing” to consider is whether “you actually need to have Congress step in and govern the process much more aggressively.” The FCC and FAA “were just playing chicken with one another and had fundamentally different approaches to how they looked at” the C-band issue.

“Ideally what should happen is that we have a cooperative resolution process by July and other lessons to be learned here that can be fixed administratively,” Graves said. “If this looks like it’s going to carry on, and you’re going to continue to have both sides arch their backs and flex their muscles, then I think we will be stepping in and being more aggressive” in legislating the process. He believes the next round of FAA reauthorization could be one vehicle for legislating a fix specific to that agency’s interactions with the FCC.

NTIA Reauth

Problems in the interagency process are “not going away,” as shown by the C-band infighting, Senate Communications Subcommittee ranking member John Thune, R-S.D., told us. He believes the NTIA Reauthorization and Reform Act (S-3288) he’s co-sponsoring with Commerce Committee ranking member Roger Wicker, R-Miss., would be one vehicle to address at least the spectrum coordination relationship between that agency and the FCC. The measure includes language from the Improving Spectrum Coordination Act (S-1472) that would mandate updates of the agencies’ MOU.

There’s “already a fairly high level of interest” in making sure NTIA is “up to the task” of distributing the $48 billion in broadband money it’s assigned to dole out via the Infrastructure Investment and Jobs Act (IIJA), so an agency renewal bill would also make sense as a vehicle for addressing the spectrum coordination process, Thune said: It’s up to Senate Commerce Chair Maria Cantwell of Washington and other Democrats to decide whether S-3288 or another NTIA reauthorization will be on the agenda.

Cantwell believes the interagency process continues to require Senate Commerce scrutiny but wants to give federal entities more time to resolve matters before lawmakers step in. The temporary C-band truce is “one step forward,” but there are “a few more to go,” she told us: “We live in this information age where there’s so much technology advancement that you’ve got to continue to make sure the FAA has the skill set and oversight” to be effective in coordinating on spectrum with other agencies. But the FAA must also be a “strong” voice on aviation safety and should be allowed to “make sure they stick to their guns on what is needed and required” of altimeters, Cantwell said.

“There’ll be a lot of discussion” about whether to pursue NTIA reauthorization due to the agency’s role in disbursing IIJA broadband money and its spectrum policy role, Cantwell said. Bills like S-3288 “may be” a vehicle to address the coordination process. “People do believe there needs to be better coordination because these issues evolve, and then you get different agencies having different opinions and it” becomes “frustrating” for many lawmakers, she said.

Industry Doubts

“It’s very doubtful that new legislation will be considered soon on this front despite” House Transportation’s “slanted hearing” last week, said former FCC Commissioner Mike O’Rielly: “I suspect FAA and others will lose interest quickly in any reform.” If legislation “somehow gets some legs,” he would welcome it “as long as the laundry list of fixes” that he and others have proposed over the years, including “agency spectrum fees and treating spectrum in agency budgets,” will “be front and center.”

Much of the problem “comes down to federal agencies circumventing NTIA,” said Digital Progress Institute President Joel Thayer. “Congress will need to solidify the NTIA's role in spectrum policy at some point, but that might be a tough proposition with all the spectrum issues going on at this time.” Legislation to mandate an update to the FCC-NTIA MOU is one thing that could have support in the short term, he said. The Commerce Spectrum Management Advisory Committee unanimously approved a revised agreement last year (see 2101140048).

“It is always good to promote dialogue between the legislative and executive branches,” said Wireless ISP Association President Claude Aiken. “Where this occurs in fruitful and open discussion, issues can be identified and concerns addressed, oftentimes more expeditiously and with less process than was initially thought.” Davidson is “adept at understanding the pressure points of a given situation, and then figuring out a proper way to resolve those matters,” Aiken said: “We trust that as he settles in and new working relationships are established with Congress, many of the longstanding issues that have bedeviled past administrators will be worked through to the benefit of the American public.”

“Congress should reaffirm the spectrum leadership role of NTIA for federal spectrum management and put in place lasting updates to resolve interagency issues before they become problems that impede advancing American wireless leadership,” emailed Competitive Carriers Association President Steve Berry. Advancing legislation in an election year isn’t easy, but “it is necessary and well worth the effort in the long run,” he said. “Bipartisan focus continues to grow, including legislation in both chambers,” and “the time has come to ensure that the process works for government and commercial spectrum users.”

“The inter-agency consultation process has worked for decades, when the engineers are allowed to do their job and all stakeholders are focused -- and pushed -- to find a solution,” emailed CTIA General Counsel Tom Power, a former White House spectrum official. “We need to empower” Davidson and Rosenworcel “to take a fresh look at that process.” They “are, and must remain, our spectrum regulators as a nation,” Power said.

There’s no “quick fix”” and “these fights are going to get uglier and uglier,” said TechFreedom General Counsel Jim Dunstan: The system has worked in the past “mainly because other agencies have let NTIA carry their water, as they should, in spectrum fights.” Historically the only agency that people worried about was the DOD, “which has always gone its own way when it comes to spectrum,” he said. “It's possible that Congress could enact clearer guidelines on the role of NTIA, but it's not like they can order [FAA] to shut up if it honestly thinks there's a problem” since it’s the agency in charge of “maximizing traveler” safety.