Senators Eye FCC Auctions Stopgap, Rip and Replace Funding Alternatives Ahead of Hearing

Senate Commerce Committee leaders remain intent on pursuing their own spectrum legislative package before a Tuesday Communications Subcommittee hearing, despite House Commerce Committee heads’ call for their colleagues to just concur with the chamber-passed (see 2207280052) Spectrum Innovation Act (HR-7624) given the Sept. 30 expiration of the FCC’s auction authority. That deadline is expected to be a focus during the hearing, with the subpanel likely to get divided opinions from witnesses on the wisdom of HR-7624’s proposal for an 18-month auction authority renewal that would last through March 31, 2024. The hearing is to begin at 2:30 p.m. in 253 Russell.

Senate Communications Subcommittee ranking member John Thune, R-S.D., confirmed to us that he and others are examining whether to attach language to fully fund the commission’s Secure and Trusted Communications Networks Reimbursement Program via must-pass legislation if it looks like it could be difficult to swiftly enact HR-7624. That measure seeks to use some proceeds from a proposed auction of the 3.1-3.45 GHz band to pay for replacing suspect equipment. Senators are looking at the chamber's FY 2023 National Defense Authorization Act version (S-4543) and FY23 appropriations legislation as potential vehicles for enacting the rip and replace funding, lobbyists told us.

Senate Commerce Chair Maria Cantwell, D-Wash., and Communications Chairman Ben Ray Lujan, D-N.M., told us they see a temporary extension of the FCC’s remit for a shorter period than HR-7624 proposes as one potential way of allowing more time to complete negotiations on a larger package. They both oppose HR-7624’s 18-month authority renewal and instead favor up to a 10-year extension.

A temporary extension of the FCC’s remit could ease uncertainty over how the commission can complete the current 2.5 GHz auction and allow additional time to work on a more comprehensive spectrum package, Cantwell and Lujan said. A “short-term extension” is a “real possibility” at this point, Cantwell said: The committee can decide “what’s the best way to move forward” after the hearing. “I hope that’s not needed, but it’s always important to have options,” Lujan said: Sept. 30 “is not a new deadline. It’s one we’ve been up against, and we should be working to address this issue in the same way there’s a priority” to act on the FY23 NDAA.

Doyle Balks

“We’ve talked through these issues” already, so “you don’t have to keep kicking the can down the road,” said House Communications Subcommittee Chairman Mike Doyle, D-Pa., in an interview last week. “Just pass” HR-7624 in the Senate since it has already gotten bipartisan 336-90 backing in the House and was the result of a “long, hard negotiation” process, he said. “Why do they want to complicate matters by adding in additional stuff” into the package that’s going to mean sending the matter back to the House, he asked: “It doesn’t make a lot of sense to me. I’ve put in a call to” Lujan and will “try to have a discussion” with other Senate Commerce members “and see if we can’t come to some agreement on this.” There’s “no reason why we couldn’t do that” this week, “or at least when we come back in September,” Doyle said.

“We’re running out of time” before Sept. 30, said House Communications ranking member Bob Latta, R-Ohio. “I’m a little bit concerned about how few days we actually have” left given “what might be on the calendar” when both chambers return in September. “We’ve got to get this thing taken care of” to ensure “the spectrum authority doesn’t expire,” he told us: “We worked in a bipartisan manner to get” HR-7624 “put together,” something the Senate shouldn’t ignore as it considers its coming moves.

Doyle believes swift Senate action is also necessary because DOD already attempted “to stir the pot” in the lead-up to HR-7624’s House passage over concerns about language in the bill that makes NTIA the sole “agency that makes decisions” on allocating federal spectrum holdings. “Fortunately,” DOD’s “weighing in didn’t stop this bill” from clearing the House floor, he said: “All they had to do is” get a House member to “demand a separate vote” on the measure, “but it got put in an en bloc package” instead. Doyle was concerned “to hear from DOD so late in the process, after we’d already marked this bill up” in both Communications and the full Commerce panel about their concerns with that approach.

“That’s not how this works,” Doyle said. “We made it pretty clear that this belongs in the hands of NTIA, period.” How is “this process going to work if every time” there needs to be a decision on how to address an issue involving federally controlled spectrum, “different departments decide ‘we want to do this’ and then independent of working through NTIA, they start to go out there and lobby individual members of Congress, he said.

DOD didn’t comment. The department’s spectrum priorities have frequently butted up against those of the FCC and other federal agencies, leading the Senate Armed Services Committee to include language in the FY23 NDAA ordering “an assessment of the implications of” provisions in the NTIA Organization Act on DOD's spectrum access (see 2206160077).

Hearing Priorities

“We want to get into a big picture discussion” Tuesday “about what we’re facing,” Cantwell said: “We’re really good at arguing various business interests’” priorities, when “what we need to do is have a big picture of what are our spectrum needs over the next decade and what is it that would help us the most as a country maximize that capacity. We hope to have some of those issues illuminated” Tuesday.

“Everything needs to be explored,” Lujan said. “I appreciate the work” House Commerce did via HR-7624, “but we also have a responsibility in the Senate to ask questions about important policy, develop important policy,” especially given the upcoming auction remit expiration. “The Senate should be coming together as it has in bipartisan ways before,” he told us: “There is a question” about the 18-month renewal the House proposes and “that should be explored. That should be something that’s being considered,” but senators need to consider “is a longer time better? Is it taking it to 36 months? Is it going beyond three years? Is it approaching 10 years?”

“It’s clearly important” that Senate Commerce weigh in on spectrum legislation “now that the House has acted” on HR-7624, Thune told us. “We need to act and do it soon,” so he’s hoping the Tuesday hearing will “shed some light on the right path forward.” It “would be nice to get something a little longer in duration” than the House’s 18-month proposal, so the panel will hopefully give lawmakers a better understanding on whether that “will be possible,” he said: “We need to find out what the options are” and “what the status is in terms of spectrum availability.” Senate Commerce ranking member Roger Wicker, R-Miss., said he hopes the committee will figure out a “breakthrough” on its legislative plans.

“We’re at an absolutely critical time,” in part since “smaller entities” participating in the 2.5 GHz auction “need to have confidence that if they compete in that auction and win licenses, they’ll be able to” complete their purchases, said Competitive Carriers Association Senior Vice President Legislative Affairs Tim Donovan in an interview. “It’s unclear what happens if auction authority lapses. That can affect everything” in the auction process, including “capital being on hold.” That “has not happened yet, and we hope that there’s a way to come to an agreement to make sure that does not happen,” he said: The Tuesday hearing “is going to be informative” about where Senate Commerce members stand on that issue.

CCA will also monitor how Senate Commerce members feel about allocating 3.1-3.45 GHz auction proceeds to pay the $3.08 billion in additional funding needed to fully satisfy rip and replace participants’ reimbursement requests, Donovan said. “Affected carriers are facing some really tough discussions internally now about” whether they can “complete the program” if the FCC isn’t able to fully meet those costs. “The clock has effectively started” now that the FCC has issued its initial prorated allocations, “so there’s a lot of pressure coming to make sure that Congress can provide the funds that are needed to support this important national security priority,” he said.

“We’ve still got almost two months to really come up with something that extends the FCC’s authority,” so the Senate still has “ample opportunity to speak” and have a meaningful impact on a final package, said Public Knowledge Government Affairs Director Greg Guice. PK CEO Chris Lewis is among the witnesses set to testify Tuesday. Senate Commerce leaders are “looking to have a discussion about a much longer-term extension and why that makes sense in terms of spectrum policy,” including the certainty that would give stakeholders, Guice told us: He expects senators to discuss how they can be “certain good coordination is occurring" between the FCC, NTIA and other federal agencies given the interagency infighting that became endemic during the Trump administration (see 2010260001).

“Negotiations on the language” and “the procedure of having to run” a deal back “through the House” is “going to take up a lot of time,” but it’s still possible to reach a consensus without the Senate simply signing off on HR-7624, said Joe Kane, Information Technology and Innovation Foundation broadband and spectrum policy director. “Some of the appetite for doing a more comprehensive extension will likely go away” the closer Congress gets to Sept. 30 without reaching a deal “in favor of not letting the authority expire.”