Dueling House, Senate Spectrum Bill Approaches to Clash Before August Recess

Congress’ clash on spectrum legislation is expected to escalate just before lawmakers leave for the long August recess with a continued lack of bicameral consensus. House Commerce Committee leaders are eyeing potential floor consideration the week of July 25 of the Spectrum Innovation Act legislative package (HR-7624) the panel advanced Wednesday (see 2207130066). Senate Commerce Committee leaders haven’t signed on in support of HR-7624’s approach and are likely to hold a hearing the week of Aug. 1 on renewing the FCC’s spectrum auction authority and other matters the measure addresses. HR-7624 authorizes an FCC auction of up to 200 MHz on the 3.1-3.45 GHz band.

House Communications Subcommittee Chairman Mike Doyle, D-Pa., is “hoping” HR-7624 will be “getting on the floor” for full House passage “before the end of July,” most likely during the final week before the chamber leaves for the August recess. “That’s the plan, unless something gets changed,” he told us last week: “I know we’re going to be doing” floor votes this week on the FY23 omnibus appropriations package that includes funding for the FCC and FTC (HR-8294) and related amendments (see 2207140070), but the House may clear HR-7624 along with a slew of other measures the following week.

“The key was to get” HR-7624 out of House Commerce, ultimately on a unanimous 52-0 vote, which in combination with expectations that the measure’s “going to breeze through” the full chamber will hopefully affect Senate deliberations, Doyle said: “That’s going to be more of an influence in the Senate than anything we can say back and forth.” Senate Commerce should be mindful that “we put a good package together and our ability to bring” HR-7624 through Commerce with unanimous support “shows that we had a good bipartisan agreement and there’s already been a lot of work done to get to this point,” said House Communications ranking member Bob Latta, R-Ohio.

There’s “still lots of dialogue going on between” House Commerce aides and colleagues on Senate Commerce, but “let’s not get hung up on” proposals from Senate Commerce Chair Maria Cantwell, D-Wash., and some FCC backers for a full 10-year extension of the FCC’s authority instead of the 18-month renewal HR-7624 proposes, Doyle said. The measure would extend the FCC’s sales remit through March 31, 2024. The current authorization expires Sept. 30.

A long-term auction reauthorization “is not going to fly” in the House given current political conditions, Doyle said: “Eighteen months is plenty of time for the FCC to be able to” complete the upcoming 2.5 GHz auction and the proposed 3.1-3.45 GHz sale. Doyle believes it’s unlikely negotiations will result in a major timeline expansion. “When you see the gulf between 18 months and 10 years, if there’s any change it’s going to be minimal,” he said. “It’s not like we’re going to go to five years.” It’s “important to get this done” and FCC Chairwoman Jessica Rosenworcel “wants to get it done,” Doyle said: “I’m sure the FCC would like to have a 50-year” renewal “if they could.”

'Robust Discussion'

Cantwell confirmed she remains opposed to a short-term auction reauthorization and wants Senate Commerce to weigh in with its own spectrum package that also addresses interagency infighting that became endemic during the Trump administration (see 2010260001). “I think people want to see a longer time frame for spectrum and they want to get these issues resolved between jurisdictions so that we’re not constantly seeing agencies having disagreements about spectrum use and interference,” she told us: “We want more continuity and figure how we get a more cohesive approach” to federal spectrum policymaking.

Cantwell said she “approved” a request from Senate Communications Subcommittee Chairman Ben Ray Lujan, D-N.M., to hold a hearing on spectrum legislative issues the week of Aug. 1 that will shed more light on the direction the panel wants to take. As has been the case with work to bolster U.S. semiconductor manufacturing via the dueling America Creating Opportunities for Manufacturing, Pre-Eminence in Technology and Economic Strength Act (HR-4521) and U.S. Innovation and Competition Act (S-1260), with spectrum “you have a fast-moving, changing market,” Cantwell said: “People are trying to decide what are the best policies that help us take best advantage of that and yet also secure solutions that are positive, taking all the interests at hand and making sure they’re resolved. For that hearing, we might be able to illuminate what the missing pieces are and why” extending the FCC’s auction mandate “longer than 18 months is a positive thing.”

“I think there needs to be a more robust discussion” about the direction to take on a spectrum package than has occurred so far in the 117th Congress, said Senate Communications ranking member John Thune, R-S.D. “Getting the extension of the FCC’s authority is really important and the mid-band range is huge,” but “I would prefer that we not decide” yet how to allocate proceeds from the 3.1-3.45 GHz auction. “I think stipulating this early about how you’re going to allocate the money, given we haven’t had a more fulsome discussion, is probably premature,” Thune told us. He noted an earlier unamended Senate companion to HR-7624 (S-4117) doesn’t “stipulate how” money from the sale “has to be spent.”

Senate Communications’ early August hearing will help lawmakers “find out what other people’s priorities are about how” to allocate money from the sale, Thune said: “Hopefully we can move” a separate spectrum legislative package through the Senate “and hopefully it will be close enough on the major components that we’ll be able to get something through” before the FCC authority’s Sept. 30 expiration.

“There’s plenty of time” between now and Sept. 30 for lawmakers to “work out any differences” between HR-7624 and the spectrum package the Senate advances, “especially with the August recess” coming up, said Public Knowledge Director-Government Affairs Greg Guice. “If they could do a hearing before the recess,” then Senate Commerce aides can use the break “to get them in the right place on whatever they want to do” so legislation can be ready for a committee markup once Congress reconvenes after Labor Day.

Public interest groups are going to continue to ask Congress before a Senate Communications hearing “to adopt a longer extension of FCC auction authority and to dedicate” proceeds from the 3.1-3.45 GHz sale “to NG-911 and also to endow” a Digital Equity Foundation to help close the digital divide (see 2202230058), said New America Open Technology Institute Wireless Future Program Director Michael Calabrese. OTI is among those backing the digital equity proposal.

2.5 GHz Woes

A House vote on HR-7624 the week of July 25 would happen against the backdrop of the July 29 start of the FCC’s 2.5 GHz auction, the last 5G sale now on the commission’s schedule. FCC officials hope the auction will be wrapped up before the Sept. 30 expiration date. Industry observers say the timing could be tight.

“I would hope that an extension of the FCC’s auction authority is passed soon because there is a real possibility that the 2.5 GHz auction, with over 8,000 products, extends past September,” said BitPath Chief Operating Officer Sasha Javid.

Congress has never allowed FCC auction authority to lapse, but Sept. 30 could be a “nail biter,” emailed Cooley’s Robert McDowell. “That could distort bidding strategies in the 2.5 GHz auction by pressuring bidders to accelerate their activity in the early rounds in an effort to conclude their work as soon as possible.” If Congress misses the deadline, committee leaders could send the FCC a letter “indicating that it is their opinion that the Commission has the authority to conclude the auction, which started before authority expired, as well as issue licenses,” McDowell said: “That would give the FCC cover. And as a practical matter, who would sue the FCC to stop an auction that was well underway?”

American Action Forum Technology and Innovation Policy Director Jeffrey Westling agreed timing of the 2.5 GHz auction could be an issue. "Congress needs to extend the FCC's auction authority, and the approach in HR-7624 probably won't be too controversial,” he said: But industry or the FCC shouldn’t “take it as a given that Congress will move quickly.” Politics “is causing a gridlock on the Hill right now and this close to the midterms, even relatively simple tasks could become a major lift. It will be interesting to see if the Senate prioritizes spectrum reauthorization and gets this over the finish line as a stand-alone bill.” If it doesn't, a more general two-year reauthorization “and perhaps the full Spectrum Innovation Act” could get rolled into larger must-pass legislation, Westling said.

Attaching other spectrum legislation to the reauthorization “does add complication to the mix, but I don't think any of the additional provisions” are “controversial in themselves,” said Joe Kane, Information Technology and Innovation Foundation director-broadband and spectrum policy. “It now looks like there might not be a bill passed before the August recess,” but “I still expect them to get something passed before the September deadline.” A “hearing on the 2.5 GHz auction should serve to highlight the urgency,” he said.