Receipt of DOD 3.1-3.45 GHz Study Likely to Increase Spectrum Focus at House FCC Hearing

DOD’s recent transmission to Congress of its study of the potential effects of commercial 5G use of the 3.1-3.45 GHz band on incumbent military systems likely means spectrum policy will be a larger focus during the House Communications Subcommittee’s Thursday FCC oversight hearing than earlier thought given Republican opposition to some agency actions since it gained a Democratic majority in September, lawmakers and lobbyists said in interviews. Subpanel members’ opinions about the FCC’s proceeding aimed at restoring most of its rescinded 2015 net neutrality rules and the commission’s adoption of digital discrimination rules earlier this month are still highly likely to be the central feature of the hearing (see 2311210073).

House Communications members will get a chance to revisit net neutrality, digital discrimination and spectrum policy issues during a planned Dec. 5 NTIA oversight hearing with Administrator Alan Davidson. That panel will begin at 10:30 a.m. in 2322 Rayburn, the House Commerce Committee said Tuesday night. House Communications’ FCC hearing will begin at 10:30 a.m. Thursday in 2123 Rayburn.

DOD dealt a new blow to prospects for the House Commerce-approved Spectrum Auction Reauthorization Act (HR-3565) when it transmitted the lower 3 GHz report and held a classified briefing for some lawmakers about its findings just before the Thanksgiving recess, Senate Armed Services Committee member Mike Rounds, R-S.D., and two congressional aides told us. “We’ve got folks looking through” the more than 1,000-page study report “right now,” Rounds said. The “bottom line is that there is no path forward” for allowing high-power 5G use on the band for either licensed or shared use “that could be implemented in a short period of time or that would not be extremely expensive.”

DOD “delivered” the lower 3 GHz band report to interested lawmakers and congressional aides “earlier this month” and “provided a briefing on the report's findings and recommendations,” a spokesperson emailed us. The briefing, which the Commerce Department also participated in, included members of the Senate Armed Services and Commerce committees, congressional aides said. DOD delayed transmission of the report last month amid chatter about disagreements between it and Commerce officials on the study’s conclusions (see 2310180062).

Many lawmakers are also still trying to digest the DOD report. Senate Armed Services ranking member Roger Wicker, R-Miss., and others acknowledged Capitol Hill has the findings but demurred from divulging much about them. “The executive branch and the legislative branch should be working together in cooperation as patriotic Americans, and it makes no sense nor is there any justification for the Biden administration withholding information from our branch,” Wicker told us.

'Expected' Negativity

House Communications Chairman Bob Latta, R-Ohio, said he didn’t “want to get into” what information DOD provided his office on the lower 3 GHz study, but acknowledged the report’s delivery to Congress. He expects subcommittee members will delve into the effects of the FCC’s spectrum authority lapse and related policy matters given “it’s absolutely important that we broaden” the amount of bandwidth available for 5G and other purposes. “We need more, not less” spectrum and the FCC’s mandate lapse is a “problem” that could hinder U.S. leadership on wireless policy, Latta said.

House Communications ranking member Doris Matsui, D-Calif., said she “wasn’t briefed” on the DOD report but knows “the summary” indicating the department opposes an auction of the lower 3 GHz band. “We expected that,” but “we know” a unilateral Pentagon veto is “not going to happen,” Matsui said. “Everybody understands what the stakes are” on spectrum. She expects that to be a major theme during the subcommittee hearing. “Hopefully we can get some bipartisan solutions” moving forward, she said.

Lobbyists told us they will be listening closely during the hearing for the extent to which Latta and other House Communications members mention HR-3565, the Senate-passed 5G Spectrum Authority Licensing Enforcement Act (HR-5677/S-2787) or the draft Spectrum Pipeline Act of 2023 from Senate Commerce ranking member Ted Cruz, R-Texas (see 2311220063). Positive reaction to HR-5677/S-2787 from subcommittee members would be particularly notable because of the push for House consideration of the measure, which would give the FCC 90 days to issue T-Mobile and other winning bidders the licenses they bought in the 2.5 GHz band auction last year (see 2311010001).

There’s been no public reaction so far to the Cruz draft, but AT&T CEO John Stankey emphasized Wednesday in an opinion piece on The Messenger website that “Congress must act soon to free up 1500 megahertz of full-power, licensed spectrum for commercial networks over the next decade.” Cruz’s proposal would require NTIA to reallocate that amount of spectrum for nonfederal and shared use.

Written testimony from FCC Chairwoman Jessica Rosenworcel, Republican Commissioner Brendan Carr and the other commissioners find rare common ground in urging congressional action to renew the FCC’s spectrum auction mandate. “Restoring this authority will provide” the U.S. “with the strongest foundation to compete in a global economy, counter our adversaries’ technology ambitions, and safeguard our national security,” Rosenworcel says. She hopes “we can do it soon.” It “will ensure our technological leadership continues on a global stage,” says Democrat Anna Gomez, who will appear before House Communications as a commissioner for the first time Thursday.

House Commerce is “doing good work to try and resolve” the FCC’s spectrum mandate lapse, Carr says. He suggests it’s among several impediments to U.S. spectrum leadership, which also include the Biden administration’s “failure to free up” bandwidth via its recently-released national spectrum strategy (see 2311130048). “It is a spectrumless spectrum plan,” he says. Carr made similar comments during an American Enterprise Institute event earlier this month (see 2311170056).

Title II Battle Lines

Latta expects a “vibrant” discussion with Rosenworcel and the other FCC commissioners, including about the net neutrality NPRM, during Thursday's hearing. “That’s an issue that we thought we’d put behind us” when the agency rescinded its 2015 rules under former Chairman Ajit Pai, Latta told us. “We’ve got a very vibrant internet out there” and consumers are “getting a better deal out there. But if we put the heavy hand of government into this again, then we’re going to see a pullback of private investment.”

“There’s always been a negative response” from Republicans to net neutrality proposals Democrats favor, so “I expect that they’ll” voice that opposition Thursday, Matsui told us. “Now that there’s a full complement at the FCC, I hope they’ll be taking on a more assertive role” on a range of telecom policy priorities the commission delayed for more than two years while it was in a 2-2 tie. “We need to move on anything we can” while that Democratic majority remains in place, she said: “Time’s a-wasting and we still have concerns about how we move forward” on a range of issues.

Rosenworcel and Carr used their written testimony as platforms to respectively trumpet and deride the new net neutrality proceeding, its proposal to again reclassify broadband as a Communications Act Title II service and the digital discrimination rules. Gomez and Democratic Commissioner Geoffrey Starks only briefly mention the net neutrality NPRM, but Starks lauds the digital discrimination rules. Republican Commissioner Nathan Simington’s testimony makes only a passing mention to the rulemakings.

The FCC is “taking steps to restore open internet policies and create a uniform legal framework that applies to the whole country, not just a few states,” Rosenworcel says. The commission “is still unable to track and engage companies to resolve internet outages. We have acted to stop new and emerging threats posed by bad actors and foreign adversaries have risen in the national security space, but our efforts do not reach broadband networks thanks to the last administration’s retreat from authority.”

The digital discrimination rules “fulfill Congress’ clear and broad directive” in the 2021 Infrastructure Investment and Jobs Act, Rosenworcel says. “As the law requires, we did this in a way that is fair and reasonable, ensuring that we have a process to address these matters and recognize genuine issues of technical and economic feasibility for broadband providers, thoughtfully and carefully on a case-by-case basis.”

The FCC’s move to advance the new net neutrality proceeding and the digital discrimination rules are “fraternal twin” instances where it “has chosen partisan ideology over smart policy,” Carr says. “The new justifications for Title II that have been conjured up this time around are just as farfetched as the ones activists made up in 2017” in the lead-up to the FCC’s rescission of the 2015 rules. “Congress never contemplated the sweeping regulatory regime that” the Biden administration “asked the FCC to adopt” via the digital discrimination rules, “let alone authorized the agency to implement it,” Carr says.