Additional FCC Auction Reauth Into 2023 Possible; Spectrum Bill Sticking Points Remain

An additional short-term extension of the FCC’s spectrum auction authority past Dec. 16 is looking increasingly likely amid congressional negotiations that have made some progress since late September but haven’t bridged gaps on policy issues like the structure of a proposed auction of the 3.1-3.45 GHz band, said lawmakers and others in interviews. Congress temporarily renewed the FCC’s authority in September as part of a continuing resolution to extend federal appropriations, in hopes an additional two months of talks would yield a broader deal on spectrum legislation (see 2209300058).

“We’ll see if we can get everyone closer to an agreement” once Congress returns next week from the week-long Thanksgiving recess, said Senate Commerce Committee Chair Maria Cantwell, D-Wash. “There’s been a little progress since Election Day” earlier this month and “there are people who are still earnestly talking.” An additional extension into the beginning of 2023 is “definitely a possibility” if a larger deal doesn’t appear to be near then, she said: “Everyone has a better understanding now of what a lame-duck deal looks like versus” what a package might look like in 2023 with divided control of Congress, which may color negotiations in the weeks ahead.

Cantwell confirmed she and Senate Commerce ranking member Roger Wicker, R-Miss., have been readying separate proposals for a larger spectrum legislative package (see 2211140075) aimed at being the chamber’s alternative to the House-passed Spectrum Innovation Act (HR-7624). She noted Democrats’ proposal favors keeping the Infrastructure Investment and Jobs Act’s original 3.1-3.45 GHz auction framework, which gave DOD more power to identify how much of the band the federal government makes available for commercial 5G. Aides were working on an updated version of Democrats’ proposal before the Thanksgiving recess, lobbyists said.

Senate Commerce Democratic and Republican aides have been the people primarily involved in talks about the proposals in recent weeks, Cantwell told us: Senate Commerce Democrats continue to “want a longer time period” of FCC auction reauthorization than HR-7624’s proposed 18-month extension “so there’s more certainty” for stakeholders. “We want to make sure that we have spectrum for the future that is unencumbered” and ensure “strong leadership” from NTIA in future executive branch spectrum coordination, she said.

“We want to make sure that we’re taking into consideration” a range of intergovernmental issues “that haven’t really gotten dealt with in the past,” such as DOD concerns that have repeatedly led the Armed Services committees to wade into spectrum policymaking via annual National Defense Authorization Act renewals, Cantwell said. House Science Committee leaders wrote FCC Chairwoman Jessica Rosenworcel and other commissioners earlier urging the commission to stop considering a proposal for sharing of the 1675-1680 MHz band (see 2006010057), citing a NOAA-contracted study that said the plan would cause significant risks to weather data collection by agency satellites.

It “certainly seems there should be a middle ground” on the spectrum issues that has been elusive over months of talks, Wicker told us. He believes the prospects for a deal will become clearer after the Thanksgiving recess, and hopes to meet with Cantwell to discuss the path forward. How legislation would handle the 3.1-3.45 GHz band remains a “major moving part” in the talks, Wicker said. His proposal seeks to auction off a larger swath of the frequency, lobbyists said.

“The window is closing pretty rapidly on legislative efforts” during the remainder of this Congress, which makes a temporary auction authority extension into 2023 much more likely, said former House Commerce Committee Chairman Greg Walden, R-Ore. What Congress does about a longer-term renewal as part of a spectrum package will come down to “what the budgetary implications” will be. “If you extend it out a decade,” as Congress did in the 2012 spectrum law, “you’ve locked in” a specific amount of money based on forecasted sales proceeds that can be used to pay for other telecom priorities, he said: Republicans will likely factor in “whether to wait until they’re in the majority” next year to make a bigger spectrum deal in hopes they can shape how revenue is parceled out to conform with their policies.

“I’m mildly optimistic that a spectrum bill can get through” Congress, but lawmakers will likely have to again “kick the can down the road” on auction reauthorization into 2023 to make that happen, said New Street’s Blair Levin. The incoming GOP House majority will have to “go through a political cycle to get people to understand that this is something” Capitol Hill “can make progress on.”

After finishing Biden administration investigations, House Republicans will say ‘maybe we should actually do something that can get through and will be popular, and spectrum is something” that there’s a reasonable chance for lawmakers to reach bipartisan agreement on, Levin said. “There’s a broad consensus” on at least some spectrum policy solutions that could result in meaningful changes to the process, as shown by the Aspen Institute’s September report calling for the federal government to issue a 10-year spectrum plan with clear national goals to release more frequencies into the commercial marketplace (see 2209150076).