Spectrum Coordination Agreement Likely to Factor in House NTIA Hearing

The FCC and NTIA committed Tuesday to update their 2003 memorandum of understanding, among other ways to improve the two agencies’ coordination on spectrum policy matters amid continued congressional ire over federal infighting on those matters that’s extended into the Biden administration (see 2202030081). The FCC-NTIA agreement is likely to be a main focus of a Wednesday House Communications Subcommittee hearing with NTIA Administrator Alan Davidson, communications officials told us. Lawmakers continue to show interest in pursuing legislation to prevent future policy fracases, though it could be tough to address this year (see 2202070066). NTIA stakeholders will also watch the Wednesday hearing for any signs of lawmakers’ interest in pursuing legislation to revamp the agency (see 2202150075). The hearing will begin at noon EST. It’s House Communications’ first NTIA oversight hearing since 2018 (see 1803060048).

The FCC and NTIA said they aim to “strengthen the processes for decision-making and information sharing and to work cooperatively to resolve spectrum policy issues,” including by revising their MOU and holding monthly, formal meetings between FCC Chairwoman Jessica Rosenworcel and Davidson. Monthly meetings “go above and beyond the existing statutory requirement, as well as the existing” MOU “between the agencies, which provides that” the FCC chair and NTIA head “meet twice each calendar year,” the agencies said.

The agencies agreed to renew efforts to develop a national spectrum strategy. The Trump administration promised, but never delivered, a strategy. The Biden administration also hasn't delivered one (see 2111010061). The agreement seeks better “transparency around spectrum use and needs” and the establishment of “long-term spectrum planning and coordination.” They promised to “recommit to scientific integrity and evidence-based policymaking” and collaborate on technology.

The FCC will be “an observer” in the Commerce Spectrum Management Advisory Committee and NTIA will participate in the FCC’s Technological Advisory Council, the agreement said. NTIA formally named members to the relaunched CSMAC Monday (see 2202140045) and TAC is expected to start work this month on a new term. Both groups were largely dormant during the first year of the Biden administration.

“Now more than ever we need a whole-of-government approach to spectrum policy,” Rosenworcel said: “Over the past few years we’ve seen the cost of not having one -- and we need a non-stop effort to fix that.” Davidson backed a “common vision for spectrum management and coordination that serves federal users, private actors, and the American people.”

First Step

Industry experts told us the FCC-NTIA agreement is a good first step but cautioned much work remains to avoid the kind of problems that plagued Verizon’s and AT&T’s launch of 5G in the C band. The need for better coordination among federal agencies has been a big Rosenworcel theme since before she took the helm at the FCC.

After challenges late in the Trump administration and now in the Biden administration, “we are beginning to see how out of control things can get without NTIA corralling different agencies' spectrum interests,” said Digital Progress Institute President Joel Thayer. He worries “the horse is out of the barn on this issue in that it's clear some agencies see a playbook that includes circumventing NTIA moving forward.”

“This is a vital step, but it's only a step,” said TechFreedom General Counsel Jim Dunstan: The agreement “outlines a process, but one that, apparently, currently doesn't exist, and may take a long time to develop. That's contrary to what we've been told in the past, that any problems have been outliers and exceptions” to the interagency process that "we've been told works well.” NTIA has too few engineers on staff and needs the resources and “political backing” to emerge as manager of how the federal government uses spectrum, he said.

“I know they couldn't say this" publicly, "but I sure would have liked to see at least a hint of NTIA telling other federal agencies to stop trying to undercut both the FCC and NTIA,” Dunstan said: As long as other agencies “think they can get away with it, they'll continue to twirl the political knobs that they can to hold tight to their spectrum assets.”

The agencies’ agreement should “address any lingering concern” that Davidson isn't going to “take spectrum management as seriously” as NTIA's distribution of $48 billion in broadband money from the Infrastructure Investment and Jobs Act (IIJA), said Public Knowledge Senior Vice President Harold Feld: “It highlights that Davidson and Rosenworcel have already established a collaborative relationship over spectrum, and that spectrum policy will receive the attention it deserves now that NTIA has a Senate-confirmed leader.” The statement also strengthens Senate Commerce’s hand against other committee’s bids to take more of a role on spectrum issues, he said.

The agreement won’t be enough to address all the criticisms of how the agencies collaborate, “but it is a step in the right direction,” said Jeffrey Westling, American Action Forum technology and innovation policy director: The agencies approach spectrum management differently, with NTIA focused on preventing harmful interference to federal incumbents and the FCC on more efficient use of the radio spectrum.

“So long as federal agencies lack an incentive to relinquish rights or upgrade equipment to facilitate more concurrent operations, the tensions between the two agencies will remain,” Westling said: “I hope this will mean see less scrambling in the future, but issues like those seen in the 5.9 GHz band or the C band won’t go away entirely, especially if the executive branch agencies disagree with an FCC decision.”

Cautious Optimism

It’s “a terrific first step towards rebooting the relationship between the FCC and federal spectrum users” after the FCC’s rivalry with NTIA, said Cooley’s Robert McDowell, a former FCC commissioner: Rosenworcel and Davidson “are certainly going to experience bumps in the road as we look to auction more spectrum, which is badly needed for 5G and eventually” 6G. “Establishing this kind of spirit of goodwill, however, could help pave the way for smoother resolution of future conflicts,” McDowell said.

The agencies’ role as U.S. spectrum regulators makes them “uniquely positioned to implement spectrum policies to ensure that America maintains its wireless leadership,” CTIA President Meredith Baker said in a statement. “We are particularly encouraged by the decision to develop a new National Spectrum Strategy and look forward to working closely with them to foster plans that will help close the digital divide and unlock transformative new 5G-enabled applications to help meet our climate, education and healthcare goals,” she said.

“As NTIA and FCC move forward, we will urge the agencies to collaborate on a national spectrum strategy that unlocks underutilized federal bands for sharing and that rapidly develops an automated database mechanism to facilitate more intensive sharing both among federal agencies and with the private sector,” said Michael Calabrese, New America Wireless Future Program director. “It will be crucial for NTIA to ensure that federal spectrum users engage far earlier and more substantively in FCC proceedings that impact their operations or that impact industries they regulate."

The Free State Foundation released a paper Tuesday urging better spectrum coordination and an updated MOU, and asking Congress to step in. The MOU “needs to be updated to clearly reflect NTIA’s central decisional role in both overseeing all of the executive branch’s use of government spectrum and in coordinating the executive branch’s use of government spectrum with the FCC,” emailed FSF President Randolph May: “The FCC’s spectrum expertise also should be expressly acknowledged. The ‘whole of government’ coordination process won’t work well, and unnecessary, costly spectrum disputes will continue, if NTIA’s central role is not recognized.”

Testimony

Davidson told House Communications members in written testimony his top priority will be “closing the digital divide” given the “historic opportunity” Congress gave NTIA by giving the agency responsibility for managing the bulk of IIJA’s broadband money. “Gaps in broadband access mean gaps in opportunity: fewer opportunities to learn and work from home, remotely visit doctors, or stay connected with family and friends,” Davidson says. “Achieving an equitable future means ensuring that homes and businesses have high-quality connections at affordable prices, and the means to use them.”

NTIA’s second priority will be “ensuring access to spectrum,” Davidson says. He emphasizes needing to coordinate with the FCC “to support advanced wireless technologies, so we can realize the promise of next generation services and connected devices. As I stated during my confirmation hearing, I am committed to working toward a coordinated, national approach to spectrum use and planning to meet current and future demands.”

NTIA will continue to “bolster cybersecurity and public safety communications,” including “playing a leading role in the U.S. government’s efforts to increase market competitiveness and enhance supplier diversity for secure 5G infrastructure,” Davidson said. “We are working to ensure that our global communications systems remain a positive force offering access to information, connection with community, and economic opportunity,” including by making American Doreen Bogdan-Martin’s ITU secretary-general candidacy (see 2201310055) a “key U.S. government priority.”

Sen. Joe Manchin, D-W.Va., and more than a dozen other senators urged Davidson Tuesday to follow congressional intent in disbursing $42.5 billion from IIJA for the broadband equity, access and deployment (BEAD) program since lawmakers made distribution of the money contingent on completing fixes to broadband coverage maps. State and local governments sought close coordination with NTIA on program rules (see 2202070053). NTIA must work "with the FCC to move quickly on updating” broadband coverage maps, “as the impact of this investment is reliant on their timely and accurate completion,” Manchin and the other senators wrote Davidson.

“Local input will be key to effective implementation” of IIJA because the law “provides unprecedented levels of funding for broadband directly to states,” the senators said. They noted IIJA’s language requires NTIA institute a “robust challenge process to give states and localities, as well as providers, a voice in this process.” The senators also pressed NTIA to maintain Congress’ intent that IIJA implementation be “technology neutral” so “all providers -- whether governmental, non-profit, cooperative, or commercial -- be held on equal footing.”