Parts of Rosenworcel Spectrum Agenda May Have to Wait for 3rd FCC Democrat

FCC Chairwoman Jessica Rosenworcel has moved more slowly on wireless issues than expected since being confirmed to another term as a commissioner and designated last year as permanent chairwoman. On Wednesday, the FCC acted on the next steps on a 2.5 GHz auction. But other wireless items haven’t advanced as quickly as some hoped.

Rosenworcel is by nature cautious and methodical in how she approaches being chair, industry officials agreed. While she can cut deals with the FCC’s two Republicans to move items in a 2-2 commission, which she has had to face since taking the helm as acting chair in January 2021, it may be easier for her to defer on some spectrum issues until a third Democrat is confirmed to the FCC, officials said. FCC nominee Gigi Sohn remains in Senate limbo until Commerce Committee leaders can ensure all 14 panel Democrats are able to vote to advance her (see 2202010070).

Several telecom-focused congressional Democrats said they have accepted it will take even longer to get to a Democratic FCC majority than they expected because the Senate Commerce Committee won’t be able to move on Sohn until Communications Subcommittee Chairman Ben Ray Lujan, D-N.M., recovers from a recent stroke. Lujan’s vote will be crucial to ensuring the committee can tie 14-14 on Sohn, along party lines. A senior Lujan aide last week estimated Lujan will be able to get back to work within four to six weeks, barring any additional medical complications.

Sohn’s nomination was “done so late by the Biden administration,” which made the selection in late October (see 2110260076), so “we’ve been hurrying to” get her through the confirmation process, Senate Commerce Chair Maria Cantwell, D-Wash., told reporters before the committee’s Wednesday follow-up confirmation hearing with the nominee (see 2202090070): “With Lujan gone” for the time being, “that will make it a bit more challenging.” Free Press urged the Senate to treat Sohn’s confirmation as a “top priority” and not “let cynical lobbying efforts from the broadcast or telecom industries further delay” the process than has already happened.

Cantwell is “still working with members to get bigger bipartisan support” but is also prepared for the possibility the chamber may need an additional vote to discharge Sohn out of Commerce before invoking cloture and a final confirmation vote. A tie vote wouldn’t automatically advance Sohn but would mean Senate Majority Leader Chuck Schumer, D-N.Y., could hold a floor vote to discharge Commerce from further consideration of a nomination and bring it to the floor.

“That kind of process could be more time-consuming, but we’re very committed” to Sohn and what she “stands for and things” she plans to work on if confirmed to the FCC, Cantwell said. If three floor votes are needed to advance Sohn in the event of a Commerce tie, “then that’s what we’ll do,” said Sen. Brian Schatz, D-Hawaii. “We need” a fully functional FCC.

“Obviously we would like to get [Sohn] confirmed as soon as possible,” but “you can’t foresee things like [Lujan] having a stroke,” said House Communications Subcommittee Chairman Mike Doyle, D-Pa., in an interview. “When we’re dealing with the tight margins” the Democrats have in the House and Senate “any kind of disruption can throw the whole thing off... We’re going to need his vote and we want him to get better. But we’re not going to wheel him in here on a gurney” just to speed up the process of bringing in a Democratic FCC majority.

Wireless Limbo

Among the wireless items potentially ripe for action are new rules for the 12 GHz and 4.9 GHz bands, the lower 37 GHz band, revised rules for short-range field disturbance sensor radars in the 60 GHz band, and allowing cellular vehicle-to-everything deployments in 5.9 GHz (see 2112290025). Industry groups and companies asked for action in all of these areas, especially 12 GHz (see 2202080079).

At the December, January and February commission meetings only two wireless items were on the agenda, both smaller items on TV white spaces check-in rules (see 2201270034), and equipment authorization standards (see 2201260043). Commissioner Brendan Carr noted after the February meeting the FCC held a 3.45 GHz auction but did nothing on other items he highlighted early in the Joe Biden administration (see 2103150058). “There’s a lot of what I viewed as low-hanging spectrum fruit that we’ve yet to move on,” Carr said.

"In the first 12 months of … Rosenworcel's leadership, the FCC has made more spectrum -- and especially mid-band spectrum -- available for next-generation networks, including with a successful auction of the 3.45 GHz band, the third highest grossing auction in the agency’s history,” an FCC spokesperson emailed: “The FCC has identified a robust pipeline that continues to channel spectrum for new uses that includes the 2.5 GHz, 4.9 GHz, and 3.1-3.45 GHz bands, among others." Some items, like the certification of automated frequency coordination system operators in the 6 GHz band, are likely to be completed soon, FCC officials told us.

FCC staffers also had to deal with the fight between the FAA and airline industry and carriers over the C band, which dominated much of the end of 2021 and the beginning of this year. Industry observers said Rosenworcel also hasn’t been helped by the lack of an administration spectrum strategy, with no one in the White House dedicated to tackling 5G and wireless issues.

The problems with the FAA and the C band have been “a total curveball that has just sucked so much oxygen out of the room,” said RS Access CEO Noah Campbell: “That has been really challenging. The FCC has come through with flying colors, but it has just taken a lot of energy.”

'Contentious' Agenda

“Even the low-hanging fruit is contentious,” said Public Knowledge Senior Vice President Harold Feld. On the 2.5 GHz auction, “if Rosenworcel wants a spectrum cap, she's going to need to have two Democrats to get to three votes,” he said: “Then there are the internal government issues, like the recent blow up with the FAA.”

“There should be no reason the FCC would not move forward quickly to complete the two proceedings that expand unlicensed spectrum to fuel super-fast Wi-Fi in the 5.9 and 6 GHz bands,” emailed Michael Calabrese, director of the Wireless Future Program at New America. “Both initial orders were adopted unanimously in 2020, but still have important issues pending” in Further NPRMs, he said: “The 6 GHz band may see forward motion very soon, now that the D.C. Circuit so decisively rejected challenges to the FCC’s technical judgment about interference to incumbent users. And on 5.9 GHz, the oral argument further reinforced the likelihood that the FCC will prevail.”

“Politics around the FCC have not been very positive in the last six months or so,” said Kristian Stout, International Center for Law & Economics director-innovation policy. “Opening new matters, even relatively unobjectionable ones like spectrum, is probably carefully considered before undertaken,” he said: “Add to that the ongoing headache the FAA is causing for the FCC on the C-band issue, and I can understand why Chair Rosenworcel has been reluctant to open major new proceedings.”

Others were more critical. "Never have I seen four commissioners prove they have the ability to put partisan affiliations aside to work together on spectrum policy,” said Nathan Leamer, aide to former FCC Chairman Ajit Pai: “It is surprising that there has not been as much progress on these matters. There is such an opportunity for bipartisan consensus and yet these precious months are ticking away."

Commerce Secretary Gina Raimondo “has been quite aggressive on broadband funding,” said Shane Tews, American Enterprise Institute visiting fellow. With the FCC’s “lack of action I’m sure the interagency programmers will happily let the power slip back to the Department of Commerce where they can manage it,” she said.

Broadcasting

Rosenworcel’s perceived policy goals on broadcasting aren’t considered likely to be palatable to the FCC’s Republicans, so commision moves on issues such as the UHF discount and broadcast ownership aren’t expected until she has a majority (see 2112200018).

“It is contrary to the public interest to unduly constrain broadcasters along ownership lines and to impose additional restrictions on how they may and may not operate,” said Commissioner Nathan Simington in remarks last year.

“I think most broadcasters would rather have no action than what is probably going to be [Rosenworcel's] agenda,” said Fletcher Heald broadcast attorney Frank Montero. NAB took a neutral stance on Sohn but pressed the nominee to revise her recusals to reflect her connection to shuttered rebroadcaster Locast as a board member for operator Sports Fans Coalition (see 2111290060). Sohn later temporarily recused herself from some FCC proceedings involving retransmission consent and broadcast copyright matters (see 2201270073).

“For those who want the status quo, deadlock can be good,” said Adonis Hoffman, a former chief of staff for then-Commissioner Mignon Clyburn. “To be safe, and perhaps successful, the chair might want to focus on the tech sector where there is likely to be bipartisan agreement on many issues."