Spectrum Bill Talks Continue; Cantwell Balks at 18-Month FCC Auction Law Extension

Senate Commerce Committee Chair Maria Cantwell, D-Wash., is continuing to oppose advancing Extending America’s Spectrum Auction Leadership Act (HR-7783) over the measure’s proposed 18-month extension of the FCC’s sales authority, complicating efforts to pass a spectrum legislative package this year. Senate Commerce ranking member Roger Wicker, R-Miss., meanwhile, is backing language in the Senate Armed Services Committee’s FY 2023 National Defense Authorization Act version that proposes “an assessment of the implications of” provisions in the NTIA Organization Act “on DOD's access to the electromagnetic spectrum and resources" (see 2206160077).

“I don’t support” moving on a spectrum package if it includes HR-7783’s proposed 18-month auction authority renewal or any other shorter-term reauthorization timeline, Cantwell said in an interview. “I think we need to look at a longer horizon” than what House Communications leaders envision. She’s been pressing for up to a 10-year extension, which would mirror the 2012 spectrum law. Other lawmakers have been backing the shorter-term renewal as a stopgap to give the FCC breathing room because the existing statute is to expire Sept. 30.

House Communications Subcommittee Chairman Mike Doyle, D-Pa., told us he’s still hoping for buy-in from Cantwell and other Senate Commerce leaders to smooth the path to a spectrum package enactment, especially given the limited legislative window left before the current FCC authorization expires. “We’ve got a clock ticking” and “we’re not coming back until July 12,” he said last week before the House left for a two-week recess.

Doyle was eyeing the possibility of a virtual House Commerce markup of HR-7783 and other spectrum measures this week, but if that doesn't happen it would "certainly" need to be a committee priority "when we get back” to Capitol Hill. “We’ve obviously got to move on that before the end of July” since the chamber will then go on a six-week August recess, Doyle said.

“I agree with” Cantwell “we would love” to be able to enact a “longer-term” spectrum auction reauthorization during this Congress, said House Communications Subcommittee Vice Chair Doris Matsui, D-Calif. “But we have to look at reality here. We’re going to have to get what we can get right now” due to the short time remaining and the politics of lawmaking before the November midterm elections.

Cantwell and other Senate lawmakers are eyeing other measures that House Communications leaders are eyeing for inclusion in a spectrum package (see 2206150067), but told us they want to weigh in instead of automatically backing the House proposals. The subcommittee advanced an amended version of the Spectrum Innovation Act (HR-7624) earlier this month that proposes to use the 3.1-3.45 GHz auction the measure authorizes to pay for next-generation 911 tech upgrades and additional funding for the FCC’s Secure and Trusted Communications Networks Reimbursement Program to repay U.S. carriers for removing from their networks’ equipment.

“We need to get everybody together to figure out” how to parcel out spectrum auction proceeds since “these are very important resources,” Cantwell said: Lawmakers “have ideas about them, the FCC has ideas about them.” Said Senate Communications Subcommittee Chairman Ben Ray Lujan, D-N.M.: “I think [House Communications] is doing everything that they think is important” to include in a spectrum package “to be able to have pay-fors that they believe in,” but that “is their vision... It’s important the Senate act in this particular area as well.” He’s hoping to work “with our colleagues to see” where there will be areas of consensus that can pass this year.

“We’re open to” the possibility of using 3.1-3.45 GHz sales proceeds to pay for priorities like NG-911 and the FCC’s rip and replace program, especially since total demand for equipment reimbursements is likely to far exceed the $1.9 billion currently allocated (see 2206160073), said Senate Communications ranking member John Thune, R-S.D. “We’re still looking” at how the House proposals would work. “There will be a lot of discussions in the Senate as to where auction proceeds should be directed, but as you know, there’s a lot of money already allocated for broadband-related projects, so simply using funds for deficit reduction would be a win for the taxpayers,” Thune said: “I hope we’re able to hold a hearing on these issues soon” so Senate Commerce “members can discuss their priorities.”

July Hopes

Most industry observers expect Congress to address the expiration of FCC auction authority before Sept. 30. The FCC starts its 2.5 GHz auction July 29 (see 2206090073). Cooley’s Robert McDowell sees a “good chance of passage” before the expiration date.

“I don’t think there’s an urgency to make” a spectrum package advance to the floor immediately after the chamber returns from recess, “but I think certainly before the August recess” there should be action, said Public Knowledge Government Affairs Director Greg Guice. “I know [House Commerce] is still working on” how to package together HR-7783 and other spectrum measures and “because of the nature of the auction authority, I understand there’s a desire to have greater coordination with Senate Commerce as to what the final bill looks like.” PK is among those backing a longer renewal because “what is the point of the 18-month extension other than to help the FCC take care of what is immediately on deck?” he said: “That’s not generally how we’ve done spectrum policy. We should be thinking of other opportunities and trying to make them happen as part of this extension.”

“It’s always problematic” when a Senate committee chair “doesn’t want to do something” backed by other panel leaders and their House colleagues, as is the case with Cantwell, said former FCC Commissioner Mike O'Rielly. “I think it’s unlikely” Cantwell can get a longer extension “given where things lie,” so “if she holds tight, that makes it much more difficult” to reach a consensus in the coming months. “I hope that’s not the case, because an 18-month extension makes sense” right now, he said: Many stakeholders “aren’t comfortable with a longer-term extension right now” because “there’s a lot of moving parts and people want to get a greater handle” on what frequencies “are in play” for future FCC auctions.

“There is near-unanimous agreement on the Hill,” at the FCC and in industry “that auction authority should be extended,” said Joe Kane, Information Technology and Innovation Foundation director-broadband and spectrum policy. “There are a lot of spectrum bills floating around right now, so I think there was some thought of packaging a few together,” but since the legislative clock is “running down,” a clean “18-month extension seems most likely now.”

An 18-month extension is “something that the FCC can live with,” said Digital Progress Institute President Joel Thayer. “It makes sense that Republicans would agree to this short-term measure because, in the likely event the House flips, it’ll give them a chance to devise a more-tailored spectrum plan than giving the FCC carte blanche auction authority.” He hopes Congress also creates “a real spectrum pipeline plan” with the cupboard “exhausted after the 2.5 GHz auction, to promote more next generation wireless services.”

NDAA 'Troublemaker'

Wicker is backing the Senate Armed Services FY23 NDAA’s proposed NTIA statute study, but other telecom-focused lawmakers are still cautious. Wicker plans to depart as lead Senate Commerce Republican at the start of the next Congress so he can replace retiring Sen. Jim Inhofe of Oklahoma as Armed Services GOP lead (see 2203070068). “It needs to be in there,” Wicker told us: “We need to find a way to wrestle this longstanding issue” of interagency spectrum policy infighting “to the ground and get it resolved.”

Federal agencies clearly “are not feeling like there is a process by which spectrum interference issues” are being addressed, Cantwell said: “Some people would like NTIA to play a larger role … and figure out a process by which scientists from all agencies” can “all agree” on a consensus process. “I think that’s a necessary process because as we saw” when Wicker had to pull his Improving Spectrum Coordination Act (S-1472) from a May Senate Commerce markup amid an amendment dispute with Sen. Deb Fischer, R-Neb., “we’re not resolving the issue,” Cantwell said: “People are just maneuvering in various other committees.”

“I’d love to see better coordination between DOD, NTIA, FCC” and other agencies on spectrum because “we’re going to need more spectrum, and we’ve got to maximize what’s available,” Thune said: “I hope the idea isn’t for” DOD to “tread on what’s on NTIA’s territory.”

Senate Armed Services “can pursue whatever they want, but if we’re talking about somehow changing NTIA’s role as the arbiter of where these spectrum decisions and debates take place, I think that would be a mistake,” Doyle said.

“NTIA is our nation’s coordinator on federal spectrum, full stop,” Guice said: “That includes DOD. They have a seat at that table, they don’t have the chair at that table.” DOD “should follow” the existing dispute process if they’re “having concerns about how NTIA handles its spectrum allocation,” just “like every other federal agency,” he said. “DOD is not the ultimate determiner of its spectrum needs; it is NTIA. That is the choice made by Congress, and it’s been supported by every president, so they need to knock it off.”

“The statute is what it is for NTIA, and they have a certain role” in federal spectrum coordination, O’Rielly said: “I think DOD is trying to undermine” that role by seeking this study via NDAA. “I hope that’s not the case, but we’ve seen studies be detrimental in the past.” DOD “can certainly analyze the law themselves; they don’t need a congressional directive to do so,” he said. “This seems like more of a troublemaker amendment than anything else.”