3.1-3.45 GHz 5G Structure Deal Elusive in Spectrum Bill Talks' Waning Days

Senate Commerce Committee leaders hadn’t resolved a longstanding disagreement Thursday night over how hoped-for compromise spectrum legislative language would structure repurposing parts of the 3.1-3.45 GHz band for commercial 5G use, a hurdle that could derail a bid to attach the proposal to an FY 2023 omnibus appropriations measure (see 2212070068). Those leaders made progress on some parts of the measure, including moving closer on amounts of spectrum auction revenue they will allocate to fully fund the FCC’s Secure and Trusted Communications Networks Reimbursement Program and finance next-generation 911 tech upgrades.

Congress moved closer Thursday to give those talks another week, after the Senate voted 75-20 on a motion to proceed to a motion to concur with a continuing resolution that would extend the FCC’s auction authority through Dec. 23 (HR-1437). The House passed the CR 224-201 Wednesday. The FCC’s authority would otherwise expire Friday, along with federal appropriations. Senate Majority Leader Chuck Schumer, D-N.Y., filed cloture Wednesday on HR-1437 and the compromise FY23 National Defense Authorization Act (HR-7776) that includes language to restrict the federal government’s use of products with semiconductor manufacturers deemed to be Chinese military contractors (see 2212070056). The Senate planned to vote on HR-7776 Thursday night.

Senate Commerce Chair Maria Cantwell, D-Wash., described the situation Thursday as still “to be determined” after meetings as recently as Wednesday night. “We’re still trying to get a little more specificity from all parties” on some of the legislative language, Cantwell told us. “We’re having four-corners discussions” that include both House Commerce Committee Chairman Frank Pallone, D-N.J., and ranking member Cathy McMorris Rodgers, R-Wash. “We’re making good progress,” but a further extension of the FCC’s authority past Dec. 23 is a distinct possibility, she said: “I don’t know” how long a further short-term renewal would last, but it will depend on “where we are” next week.

A renewal of the FCC’s auction authority in a broader package is likely to be closer to three years, as Wicker has pushed, rather than the five-year timeline Cantwell proposed in recent weeks, lobbyists said. The thinking is that would be less likely to upset Rodgers, who was the main force behind language in the House-passed Spectrum Innovation Act (HR-7624) reauthorizing the mandate through March 31, 2024 (see 2207280052), lobbyists said.

DOD Objections

Cantwell confirmed lobbyists’ reports that DOD “definitely objected” to a bid by ranking member Roger Wicker, R-Miss., for 3.1-3.45 GHz language that would mirror what CTIA and others in the wireless industry want. Wicker, who’s on deck to be lead Republican on the Armed Services Committee in January, still wants to clear the Pentagon off at least the top 150 MHz of the band, lobbyists said. That approach would harmonize the U.S. with more than 70 other countries that have agreed to target spectrum for 5G at 3.3 GHz and up, lobbyists said.

Cantwell and the Biden administration are backing DOD’s position on the band and favor slightly amending the Infrastructure Investment and Jobs Act’s original 3.1-3.45 GHz auction framework, lobbyists said. IIJA gave DOD more power to identify how much of the band the federal government makes available for commercial 5G. HR-7624, by contrast, calls for identifying ways to use all 350 MHz on the band for either nonfederal use or shared use with federal incumbents. DOD indicated it’s willing to study relocation in the band's top portion but doesn’t want Congress to mandate it, lobbyists said. They indicated the department is, meanwhile, agnostic on how the FCC structures sharing on the band.

“We’re trying to find some more common ground” on 3.1-3.45 GHz, Cantwell said: “Everybody wants us to be the smartest nation on spectrum uses that we can be. Getting everybody on that same goal and figuring out how to move forward with a really data-driven discussion is something we just need to figure out. It’s something we can all accomplish. We just need to keep talking.” It’s going to be difficult to reach a deal if Wicker isn’t willing to change his position on the frequency, lobbyists said.

“There’s a window” to get a deal done this year while meetings are still occurring, but based on the pace of talks thus far, “the odds are” there will be bipartisan agreement only on including “a short-term extension” of the FCC’s authority in a CR, Wicker told us: “I would advocate for something longer” than an extension into January or February “just to give the new Congress time to get our feet under us.”

There’s still significant “back-and-forth” among Senate Commerce leaders, Senate Armed Services “and the defense community” on aspects of spectrum legislation due to concerns about the 3.1-3.45 GHz language, said Communications Subcommittee ranking member John Thune, R-S.D. “I don’t get the sense that there’s anything coming together yet,” which in turn calls into question amounts of potential revenue from auctioning parts of the band that lawmakers can allocate for the rip and replace program, NG-911 or other priorities.

'Waiting' on Senate

“We’re waiting to see what the Senate comes back to us with,” but “we’re running short on time,” said House Communications Subcommittee Vice Chair Doris Matsui, D-Calif., who will take over the lead Democratic seat on the subpanel in the next Congress. “We know something has to happen” and “eventually we’ll get something,” she said: “We don’t know exactly how long” an FCC auction reauthorization “will be” and “we’ve always wanted to have a longer” extension.

“I hope” the 3.1-3.45 GHz language fracas doesn’t kill chances for a package passing this year, Matsui said. “I was involved in” Hill-convened collaborative meetings leading up to the AWS-3 spectrum auction and that process showed “it’s very difficult” to balance DOD’s concerns with other factors. “DOD’s always worried about security” of their operations, “but honestly we all know NTIA needs to be the lead dog” in handling interagency spectrum coordination, she said: “I’ve made my positions clear, so we will have to see how that ends up.”

“We’re still talking” and House Commerce staff have been meeting “extensively” in recent days, including over last weekend, but “we’re running out of time,” said House Communications ranking member Bob Latta, R-Ohio. “There are a lot of things that expire at the end of the year” beyond the FCC’s auction authority. Latta may take over the subcommittee gavel next year, but there’s continued uncertainty since he would be able to fill that role only through the beginning of 2025 due to GOP caucus term-limit rules, lobbyists said. He has been lead subpanel Republican for two terms, since the beginning of 2019.

Public interest entities “would rather see no bill” on spectrum pass as part of an omnibus “than one that mandated clearing DOD off a large portion of” the 3.1-3.45 GHz band “for an exclusive auction tailored so that only the three big mobile carriers could possibly win the licenses,” said New America’s Open Technology Institute Wireless Future Project Director Michael Calabrese. “That would likely freeze the rest of the band while DOD takes an enormous amount of time to move systems further down the band, which would degrade the band with respect to its use for all other wireless operators.”

Spending Proposals

Cantwell and Wicker are eyeing how to allocate 3.1-3.45 GHz sales revenue based on the $10.175 billion score the Congressional Budget Office provided for the auction in its 2021 analysis of IIJA, lobbyists said. They also anticipate including language to require an NTIA study of how much frequency on the 4 GHz and 7 GHz bands the federal government can make available for commercial use, albeit without specifically mandating auctions, lobbyists said. A future bill addressing those bands would likely be more prescriptive based on what the NTIA study determines, lobbyists said.

Cantwell and Wicker expect to include the entire $3.08 billion the FCC needs to fully reimburse rip and replace program participants, lobbyists said. They're examining potentially $3 billion for NG-911 and $3 billion for the Cantwell-led Grant to Rapidly Invest and Deploy Broadband Act (S-4763) to incentivize building middle-mile broadband backbone infrastructure along the existing U.S. electricity grid (see 2210130074), lobbyists said. HR-7624 proposed up to $10 billion for NG-911. Lawmakers may also include smaller outlays for other priorities, lobbyists said.

Few NTCA members participate in rip and replace since much of the suspect equipment is on rural wireless networks rather than ILECs, but “the ones it does impact, it impacts greatly,” said CEO Shirley Bloomfield. “They’re panicked. They’re basically asking ‘what do I do? Who’s going to lend to help me rebuild my network?’ which is tough. So, it would be nice if” Congress can include the extra $3.08 billion in an omnibus.

“It is one thing to put down a mandate and say, ‘you’ve got to pull this equipment off your network,’ and another to figure out how you’re going to afford to do that” without more federal funding, Bloomfield told us. “If you’re not getting that support, there’s only one place to go, and that’s your customer base. And customers won’t be able to afford the cost of a completely rebuilt network, particularly if you’re in a market that has needed government support to actually make the business case” for broadband deployments.