Congress Extends Spectrum Bill Talks Via FCC Stopgap, but Stumbling Blocks Remain

Congress is buying itself more time to continue negotiations on a potential spectrum legislative package by agreeing to temporarily extend the FCC’s auction authority through Dec. 16 (see 2209210076), but the breathing room hasn’t appreciably improved prospects those talks will result in a deal by the new deadline, lawmakers and lobbyists told us last week. The House voted 230-201 Friday to pass a continuing resolution that includes the FCC renewal and an extension of federal appropriations to the Dec. 16 date (HR-6833). The Senate approved it Thursday (see 2209290066). President Joe Biden was expected to sign the measure before FY 2022 appropriations expired late Friday.

“We could” get to a deal on a spectrum package by the new Dec. 16 deadline, but “I don’t know what I’d put the likelihood at” right now, said Senate Commerce Committee Chair Maria Cantwell, D-Wash. “There’s a lot of discussion that’s been happening” and “it’s important to get done,” but talks haven’t developed yet on some fundamental matters. She believes “a long authorization” period of up to 10 years remains “a good idea,” in contrast to House Commerce Committee leaders and some Senate Commerce members who have insisted on a shorter timeline. “People are getting more educated about the benefits” of a long-term renewal, Cantwell said. The House-passed Spectrum Innovation Act (HR-7624) envisions an 18-month extension (see 2207280052).

“The big sticking point” in negotiations remains “the length of time” lawmakers want to renew the FCC’s authority, though consensus remains elusive on other areas, said Senate Commerce ranking member Roger Wicker, R-Miss. “If it’s extended too far, it gives us fewer opportunities to tweak” authorization language “as we go along.” He's “always supremely optimistic” that lawmakers can reach a consensus on telecom policy matters and “surely” the spectrum issues at play in current negotiations are “something that can be resolved.”

Wicker believes the outcome of the spectrum talks “frankly will be resolved partially based on” the Nov. 8 midterm “election results” and which party has majority control in the House and Senate when the new Congress convenes in early January. Cantwell “may be less eager” to reach a deal on a comprehensive bill during the lame-duck session if she’s slated to retain the Commerce gavel in 2023 than she might be if incoming lead committee Republican Sen. Ted Cruz of Texas takes over, a Senate GOP official said.

'Spending' Issues

“I think a lot of people are more focused on how they would like to spend” potential proceeds from spectrum auctions authorized via a new package rather than “what is the appropriate strategy for spectrum allocation, how we get the most efficient use given the growing demand for” frequencies, Cantwell told us: Lawmakers need to “get off of the spending” question for now and instead eye “what we need to do for the U.S. to keep its leadership in spectrum” and communications technologies. “I think if we focus on what’s good spectrum policy, then we can come to some resolution of the other issues” later, she said.

“There’s such a huge demand” for more spectrum access “and a lot of fighting over it,” so a more “effective U.S. spectrum policy” is going to be crucial, Cantwell said. She wants whatever measure Senate Commerce pursues, in part to make a statutory fix to prevent further bouts of interagency infighting over spectrum issues, a matter the stalled Improving Spectrum Coordination Act (S-1472) would address (see 2205250063). “It would be a good idea to have policy” language “that provides for better coordination and resolving disputes” between federal agencies “so we don’t have engineers disagreeing with each other on effects” of commercial 5G use on repurposed bands, Cantwell said.

Work to attach a broader spectrum package to year-end omnibus legislation would “probably improve the prospects” for passage, said Senate Communications Subcommittee ranking member John Thune, R-S.D. There’s “a lot of bipartisan interest in trying to do a longer-term solution, so hopefully between now and” Dec. 16 “we can figure out how to thread that needle.” Lawmakers may need to do another short-term extension of the FCC’s authority “into the new year” if Democrats continue proposing additional telecom priorities they want to fund using potential auction revenue, he told us.

“Everybody’s got ideas about how to spend the money and I think that’s something we need to have a conversation about,” including hearings “and getting some input from more members,” Thune said: “We need a more comprehensive approach to this” and input beyond the “handful of people who are trying to figure out ways to earmark” proceeds. Republicans privately balked at a bid by Cantwell to allocate some auction revenue to fund her Grant to Rapidly Invest and Deploy Broadband Act (S-4763), which aims to incentivize building a nationwide middle-mile broadband backbone along the existing U.S. electricity grid (see 2208100062), lobbyists said.

The temporary FCC reauthorization included in HR-6833 is a “positive” development since “it’s important to extend” the remit before it expires, but all sides are still “working together to try to find out what the larger package” will look like, said Senate Communications Chairman Ben Ray Lujan, D-N.M. “We’ll see when the larger package comes to fruition, and hopefully we’ll be able to pass it soon. I’ve learned” since coming to the Senate that “you can pass anything” quickly “if you’ve got 60 votes” supporting it.

'Get It Done'

“This gives us a chance for more negotiation” and shows there’s “at least some recognition” on the Senate side “that they don’t want this authority to expire,” said House Communications Subcommittee Chairman Mike Doyle, D-Pa. It still “seems to me that if you have a bill” like HR-7624 “that passes in the House by a wide margin,” it would “make sense to me that the Senate could put that up and be done with it and” Biden “could sign it.”

The Senate “likes to do their own bills,” while “I just want to get it done,” Doyle told us: “I obviously don’t think the renewal time period should be 10 years” like Cantwell and some others have been seeking, but those negotiations can continue without the same pressure. Doyle and other House Commerce leaders urged the Senate Friday to pass HR-7624, saying in a statement the measure “ensures Congress has time to do its work to build a spectrum pipeline.”

“We want to see something that goes much longer so we can get” spectrum policy “done right,” so the CR stopgap buys Congress valuable time to work through senators’ objections to HR-7624’s approach, said House Communications ranking member Bob Latta, R-Ohio. “Hopefully once Dec. 16 rolls around,” there will be more consensus around passing HR-7624 or something that mirrors it. “We certainly don’t want to do more of these three-month deals, or even six months,” he told us: “You’ve got to have more certainty out there” than another temporary extension would provide.

“This is a welcome” development that will “give Senate Commerce staff more time to fashion a package that includes a longer authority extension as well as spectrum pipeline provisions that can get work going on specific bands,” said New America’s Open Technology Institute Wireless Future Project Director Michael Calabrese. “We have been opposing any very short-term extension that simply loses a period of time that could be spent by the agencies studying and reporting back on what spectrum would be available” for licensed or unlicensed use.

Democrats “are hoping to achieve a package that gets some work going” on a pipeline “and gives NTIA and FCC sufficient time to make progress rather than simply kick the can to the end of the next Congress,” Calabrese told us. “Eighteen months is too short a time to accomplish anything and would just be pure delay. You’d need a minimum of four or five years for the agencies to work out what’s possible, report back” and give lawmakers time to “move forward.” Congress could enact a 10-year renewal now and “come back in two years,” after receiving a report from the FCC and NTIA, “and require auctions” of identified bands, he said: “The two issues aren’t necessarily tied together. There’s nothing preventing Congress” from revisiting the issue once it has a better idea of the potential pipeline.

A shorter reauthorization would “make Congress more accountable” on spectrum and give them an ability to adjust course sooner, said R Street Institute Technology and Innovation Policy Counsel Jonathan Cannon. “The best-case scenario” would be for the Senate to simply pass HR-7624 “with some changes,” but “maybe there’s a chance that they’ll do a much longer” renewal. “The biggest question is will there be any strings attached to what a reauthorization will look like,” including “specific plans for what” projects the revenue will fund, he said: “Giving the FCC this authority is not a controversial thing” in itself.

Lawyers who represent wireless carriers said there was some anxiety the FCC would stop processing 2.5 GHz licenses if auction authority lapsed, though that seemed unlikely. T-Mobile dominated the auction, which ended Aug. 29 (see 2209010060). The FCC hasn't awarded licenses. Down payments by winning bidders were due Sept. 16, final payments Friday. The process is now expected to keep moving forward, industry lawyers said. The FCC declined comment Friday.