FCC Spectrum Auction Authority Extension Past March 9 Seen Likely Amid Slow Talks Restart

Another short-term extension of the FCC’s auction authority is the likeliest scenario amid a slow return to negotiations on a broader spectrum legislative package earlier this month and dwindling time left before the commission’s current mandate expires, lawmakers and other observers said in interviews. President Joe Biden signed off in December on a renewal of the FCC’s auction remit through March 9 that Congress enacted as part of the FY 2023 appropriations omnibus package after a deal to attach spectrum legislative language to the measure fell through at the last minute (see 2212300046).

Talks on the legislative package didn’t begin in earnest until near the end of January, weeks later than lawmakers’ hopes of a quick restart once the new Congress began Jan. 3 (see 2212280044), lobbyists said. Formal talks couldn’t begin until both chambers’ Commerce committees formally organized, lobbyists said. House Commerce convened in late January and Senate Commerce organized in early February (see 2302080043). Senate Commerce in particular has been slow to restart talks because new ranking member Ted Cruz, R-Texas, “is still formulating his position” on whether to pursue a legislative deal that mirrors the Spectrum Auction Reauthorization Act proposal agreed to in December (see 2212270029) or “go in another direction,” said a telecom lobbyist who follows GOP deliberations.

Senate Commerce Chair Maria Cantwell, D-Wash., told us last week she’s “not sure” whether an additional short-term FCC spectrum reauthorization will be necessary but emphasized “people keep talking” about the issue as the chamber began a weeklong recess set to end Monday. “We were at the goal line” on the December deal before Sen. Mike Rounds, R-S.D., objected to including it in the omnibus, “so I would hope we can get all of our colleagues” to agree to a similar “final product” now, Cantwell told us: “Lots of things are being considered” as part of a new consensus, but the emphasis needs to be on “moving forward on the important” spectrum policy matters “that we need for competitiveness and security.”

Another short FCC mandate renewal past March 9 “is certainly possible and perhaps even likely” given where talks stand, Cruz told us. “After that, I hope a more significant, long-term extension” will become “part of a package opening up significant spectrum to commercial use.” He has “real optimism that we will move forward” on a broader bill since it’s “an area where there can be real bipartisan cooperation and there could be enormous benefits to the economy and to job creation.” Cruz and Senate Communications Subcommittee ranking member John Thune, R-S.D., urged lawmakers last week not to rush “into a bad deal just to secure any deal” on spectrum legislation (see 2302170053).

Renewal Into Fall?

An increasing number of lawmakers are interested in an additional FCC remit extension to last through the remainder of FY23, which ends the night of Sept. 30, lobbyists said. Rounds told us he’s pushing Congress for a renewal “at least” through Oct. 1, while other leaders haven’t voiced preference for a particular date. Tying the authority’s expiration date to the end of FY23 would in part ensure a clear must-pass vehicle for enacting a new spectrum package, lobbyists said. Leaders are likely to pursue enacting a post-March 9 extension as a stand-alone measure because no larger must-pass bill is looming in the immediate future, congressional aides said. The Senate would be able to move a stand-alone renewal by unanimous consent, while the House could pursue it under suspension of the rules that allows for speedy floor consideration, aides said.

“I’ve had a series of meetings” with Senate Commerce leaders, DOD officials, wireless industry executives and “members of the defense industrial base” on amending the Infrastructure Investment and Jobs Act’s framework for deciding how to repurpose spectrum on the 3.1-3.45 GHz band, Rounds told us. Some lawmakers are eyeing whether to completely jettison the band framework language Rounds objected to in December, lobbyists said. The December package would have given the Commerce Department the ability to override DOD’s recommendations for the frequency based on a pending study on relocating its systems off the band. The proposal would have allowed DOD to appeal Commerce's decision to the White House (see 2212200077).

“I still have real concerns about the availability of that particular part of the spectrum” given the potential impact of allowing commercial use on the band for defense incumbents, Rounds said. "This is something we shouldn’t make a decision on without having full knowledge of what the impacts are,” so a “clean” extension of the FCC’s auction mandate would allow DOD to complete its IIJA-mandated analysis of the band. “I want to see the outcome of that analysis before any portion of that spectrum is released or shared.”

Telecom lobbyists are hopeful former Senate Commerce ranking member Roger Wicker of Mississippi will be a key mediator in talks because he’s now lead Armed Services Committee Republican and still a senior Commerce member. Wicker told us he’s not involved in those deliberations now because he’s “not one of the lead negotiators anymore” since the leadership shift.

“I’m hopeful” the upcoming March 9 deadline “will help encourage people to come together” on a deal now, though another short-term renewal is also a real possibility, said Communications Subcommittee Chairman Ben Ray Lujan, D-N.M. “I do not believe” involved parties “were that far apart” even with Rounds’ concerns, “so that gives me hope” that “we can get a bill passed” soon. “There’s been time for work together, for staff to talk to one another, for input to be embraced and adopted,” he said: “There’s more of us who said yes than no” to the December language.

“We’ve got to get something done” given the March 9 deadline, but it’s not clear a full package is possible if lawmakers have to pursue it as a “stand-alone bill,” said House Communications Subcommittee Chairman Bob Latta, R-Ohio. “This is why these short extensions don’t work” and why the Commerce committees’ leaders were so eager to reach a deal in December. “We need something that’s a lot more permanent” than even the seven-month renewal Rounds advocates, but “time is running out” to do that, Latta said.

House Communications ranking member Doris Matsui, D-Calif., said in a brief interview before the chamber began a two-week recess that she, Latta and other Commerce leaders were still working through how to proceed. She emphasized that the December spectrum deal would be her starting point in negotiations with Senate leaders since it was previously acceptable to all sides.

'Easy Way' Out

The legislative “clock isn’t a friend” to efforts to reach a broader deal by March 9, said Public Knowledge Government Affairs Director Greg Guice. The December deal “isn’t fully baked” as lawmakers’ consensus offer, so it's not surprising there's interest in “forgoing” alterations to the IIJA's 3.1-3.45 GHz framework “given that DOD is pretty far along in its reporting” on the band. He cautioned that leaving "the status quo” in place on the frequency could “disrupt” efforts to solidify NTIA’s position as “the voice of the executive branch on spectrum policy."

Jettisoning changes to IIJA’s 3.1-3.45 GHz language “would be a quick and easy way” of reaching a deal that won’t draw Rounds’ ire, but it would come with costs, said New America’s Open Technology Institute Wireless Future Project Director Michael Calabrese. The Commerce committees’ leaders would be “giving up the auction package’s” goal of generating an additional $3.08 billion to fully fund the FCC's Secure and Trusted Communications Networks Reimbursement Program and pay for next-generation 911 tech upgrades. It would also undermine efforts to “clarify NTIA’s jurisdiction” since the IIJA alterations would have removed DOD’s “explicit veto” on repurposing any part of its spectrum, he said.

The FCC doesn’t have any auctions scheduled that could be subject to delays if its authority expires, but industry observers believe questions remain about a few past auctions, including the 2.5 GHz band sale that ended in August (see 2208290043). Follow-up work on that auction remains. The FCC is examining some long-form applications, a process that often takes months. AT&T still has a pending challenge of licenses won by T-Mobile, raising competition issues and the FCC’s spectrum screen (see 2211210085).

Lawyers active on auctions said FCC top staffers appear prepared to take the legal position the commission can award licenses from a completed auction if authority lapses. The FCC could be moving into “uncharted territory,” said Recon Analytics’ Roger Entner: “Nobody knows what happens with the licenses not yet awarded. … Only the courts can tell us.” The FCC declined comment.

“My impression is that legislative efforts will do everything possible to preserve the status quo until a final deal is struck, and that includes completion of existing auctions,” emailed Information Technology and Innovation Broadband and Spectrum Policy Director Joe Kane. If sold 2.5 GHz licenses “would be imperiled, I'd expect a provision that explicitly authorizes the completion of that proceeding to accompany a temporary extension of the March deadline.”