Kennedy, Others Resuming Push for House Action to End FCC Pause on 2.5 GHz Licenses

Sen. John Kennedy, R-La., and other backers of his Senate-passed 5G Spectrum Authority Licensing Enforcement Act (S-2787) are resuming their push for the House to pass the measure now that the chamber has resolved the leadership crisis that halted all legislative activity for most of October. The measure’s backers believe its enactment may be the easiest way to blunt the short-term effects of the FCC losing its spectrum auction authority, a lapse that began almost eight months ago. Lawmakers are continuing to press for full restoration of the mandate but believe that will be difficult until DOD releases its much-anticipated report on repurposing the 3.1-3.45 GHz band for commercial 5G use.

“We’re working on getting” House leaders to take up S-2787 following the chamber’s election last week of new Speaker Mike Johnson, R-La., said Kennedy, the bill’s lead sponsor, in an interview. S-2787 would give the FCC authority for 90 days to issue T-Mobile and other winning bidders the licenses they bought in the 2.5 GHz band auction last year (see 2309220057). The chamber was set to return Wednesday night but planned to focus this week on an Israel-focused aid package and FY 2024 appropriations measures.

Kennedy noted leadership interest in moving S-2787 through the House under suspension of the rules before the chamber jettisoned Rep. Kevin McCarthy, R-Calif., as speaker Oct. 3. House Commerce Committee member John Joyce, R-Pa., has since filed companion measure HR-5677. Kennedy said he has a “very good” relationship with Johnson and while “I’m not going to bother him” with a request to move HR-5677/S-2787 immediately, “I will be reaching out to him on it soon.”

House Communications Subcommittee Chairman Bob Latta, R-Ohio, told us he and other leaders are still sorting through how to move forward following the recent leadership turnover, which has left Majority Leader Steve Scalise, R-La., and Majority Whip Tom Emmer, R-Minn., remaining in their respective positions. Spokespeople for Johnson and Scalise didn’t immediately comment.

“We are looking at” moving HR-5677/S-2787, but there’s no certainty yet whether House leadership will agree to move it under suspension, said House Communications ranking member Doris Matsui, D-Calif. “We’re looking at anything that can pass right now” to alleviate all or part of the FCC’s mandate expiration. “We can’t hold this up forever” while lawmakers await further word from DOD on the report, Matsui told us. Officials believe the report is likely to hurt the push to advance spectrum legislation most top leaders of the House and Senate Commerce committees back (see 2309190001).

DOD-Commerce Briefing Push

Senate Commerce Committee Chair Maria Cantwell, D-Wash., told us she’s still “pushing for” DOD and the Commerce Department to brief her and other panel members on the Pentagon's findings after the agencies delayed presentation of the report earlier this month (see 2310180062). “You’d think somebody could come up” to Capitol Hill to tell lawmakers what DOD is recommending, she said: “Everybody’s looking for creative ways to solve problems” caused by the FCC authority’s lapse in the meantime, including HR-5677/S-2787 and the House Commerce Committee-cleared Spectrum Auction Reauthorization Act (HR-3565), which Cantwell backs (see 2305240069).

Senate Commerce ranking member Ted Cruz, R-Texas, also acknowledged the briefing delay in a short interview. “I’m not sure when it is scheduled” to take place, “but I would like it to happen sooner rather than later,” he said: “I don’t want to jump to conclusions” about why Commerce and DOD delayed the briefing because “I’m not aware of the circumstances” that led to that decision.

Sen. Mike Rounds, R-S.D., whose push to give DOD time to complete the lower 3 GHz study doomed a March bid to temporarily renew the FCC’s authority (see 2303090074), told us he’s “had informal conversations with leadership within the Pentagon” and expects “they will have the full report to us here” before the end of November.

“They’re just trying to figure out how they're going to explain” DOD's findings “because it comes out very clearly that the impact" of commercial wireless operations on the lower 3 GHz band would be "significant” for defense incumbents, Rounds said. “They're trying to figure out the next step to actually get additional spectrum someplace else that could fill the void.” Commerce doesn't like “the outcome of” the DOD study, and it's “my expectation they'll attack the report,” he said: “It's like getting a bad report card. You can't change it simply because you don't like it.” Commerce didn’t immediately comment.

'Move Forward'

“We need to move forward right away” to restore the FCC’s auction authority even with the question of the lower 3 GHz band still unresolved, said Senate Appropriations Financial Services Subcommittee Chairman Chris Van Hollen, D-Md. “There’s still an opportunity to resolve the other equities, but we should at least pursue” a legislative solution in “areas where there’s already agreement. We haven’t had the authority since March, and it’s already hurting the competitiveness of the U.S. The longer this goes on, the more it will undermine” U.S. leadership on wireless issues.

“I don’t see why” the House “would sit on” HR-5677/S-2787 when the Senate has already unanimously “signed off on” it, said Digital Progress Institute President Joel Thayer. “If someone were to give me a magic wand and asked, ‘What would you like to clear off your desk?’” he would say, “Let’s take the easiest things off first. And this seems to be a pretty easy one” to clear. “I don’t see a lot of pushback from either Republicans or Democrats on this,” Thayer told us: “It doesn’t take away from any of the other conversations that they want to have” about spectrum.

“The brakes have been on for a long time on all spectrum things on the Hill,” said Joe Kane, Information Technology and Innovation Foundation director-broadband and spectrum policy. The prospects of that changing remain low until the Biden administration “does whatever they’re going to do” on both the DOD report and an NTIA-led national spectrum strategy” (see 2309210043). “It would be very helpful for the U.S. to be speaking with one voice” on those matters given the World Radiocommunication Conference is supposed to begin in less than three weeks, including backing up its position with consensus legislation, he told us: “There doesn’t seem to be a whole lot of interest in that” given where DOD and their allies on the Hill stand right now.

T-Mobile and five entities lobbying on its behalf reported advocating for HR-5677/S-2787 or 2.5 GHz licensing during Q3, including Capitol Venture and Owen Evans Ingols. Ex-Rep. Ryan Costello, R-Pa., said he also advocated for HR-5677/S-2787 and a bill the House passed in February (see 2302280068) that would have renewed the FCC’s mandate through May 19 (HR-1108). Kountoupes Denham said it lobbied for T-Mobile on both HR-5677/S-2787 and generally on “the extension of FCC spectrum auction authority.” Washington2 Advocates reported lobbying for the carrier on “2.5 spectrum auction issues.” Several other firms mentioned lobbying for T-Mobile on spectrum issues. The Competitive Carriers Association, NCTA and Mercury Strategies, advocating on behalf of AT&T, also mentioned HR-5677/S-2787 in lobbying reports.