Lawmakers Eye Pivot on Spectrum Legislation After DOD 3.1-3.45 GHz Study

Lawmakers are beginning to talk about how to pivot from the House Commerce Committee-approved Spectrum Auction Reauthorization Act (HR-3565) text as Capitol Hill continues digesting findings of DOD's study about the potential effects commercial 5G use of the 3.1-3.45 GHz band will have on incumbent military systems (see 2311290001), lawmakers and lobbyists told us. Senate Commerce Committee Chair Maria Cantwell, D-Wash., acknowledges the unpublished DOD study’s findings likely mean lawmakers must forgo authorizing an auction of lower 3 GHz spectrum as part of a near-term compromise package.

Cantwell and other HR-3565 backers we spoke with won’t say how substantially they may have to alter their plans because of DOD’s findings. Revenue from HR-3565’s proposed lower 3 GHz auction was one of the ways its backers proposed paying for several telecom projects. These included up to $14.8 billion in future auction proceeds for NG-911 and up to $3.08 billion to repay a loan fully funding the FCC’s Secure and Trusted Communications Networks Reimbursement Program. Senate Armed Services Committee member Mike Rounds, R-S.D., and other HR-3565 critics are eyeing alternative proposals, including the draft Spectrum Pipeline Act of 2023 (see 2311220063) but haven’t coalesced around a consensus measure.

House Commerce leaders tacitly acknowledge the likelihood of further delays in reaching a broad spectrum legislative deal that would renew the FCC’s lapsed auction mandate by scheduling a Tuesday vote on HR-5677, the chamber's companion to the Senate-approved 5G Spectrum Authority Licensing Enforcement Act (S-2787), lobbyists said. The measure 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 markup will begin at 2 p.m. in 2123 Rayburn, House Commerce said Friday night.

That House Commerce is “looking at” HR-5677/S-2787 as a viable stopgap while talks continue on restoring the FCC’s full authority “means we’re making some progress, because it means everyone understands what the stakes are,” said House Communications Subcommittee ranking member Doris Matsui, D-Calif., in an interview. “We believe we need to do something” to complete the 2.5 GHz license transfers because the auction winners “have been waiting a long time.”

Seeking 'Commonalities'

Cantwell confirmed she’s among those briefed by DOD and the Commerce Department just before the Thanksgiving recess on the spectrum study results. “People have agreed that” the lower 3 GHz band “has to be put aside for the moment” because of those conclusions, she told us. “We saw a lot of commonalities about how people wanted to move forward, so we plan to talk among ourselves about how to do that” in legislation. House Commerce leaders got Cantwell’s backing for HR-3565 earlier this year before they even filed the bill, which mirrors an amendment they jointly attempted to attach to the FY 2023 appropriations omnibus (see 2212190069).

“We’ll have to think about what we can do in the short term” with spectrum, including whether there’s consensus about allocating revenue from selling other spectrum bands to pay for telecom priorities as proposed in HR-3565, Cantwell said. She’s not ruling out that lawmakers could decide on a clean FCC mandate reauthorization measure given almost nine months have passed since the remit lapsed in March amid objections from Rounds related to the lower 3 GHz band (see 2303090074).

Backers of a lower 3 GHz auction are “going back to the drawing board” following DOD’s report “to see what other options they have,” Rounds said. “I don’t think they liked the outcome of the study, but the reality is they were looking at a part of the spectrum that is so deeply ingrained into the tools DOD uses that they have to realize it’s not going to be possible” for commercial 5G use in the way the wireless industry sought. “We need more spectrum available to be able to maintain U.S. leadership” on wireless, so if other bands can be sold or shared with federal incumbents, “we would have an interest in pursuing that,” he said.

Senate Communications Subcommittee ranking member John Thune, R-S.D., confirmed he’s partnering with Commerce ranking member Ted Cruz, R-Texas, on the Spectrum Pipeline Act draft given their shared misgivings with HR-3565’s approach, including its spending language (see 2306130040). The measure would direct NTIA to identify within two years at least 1,500 MHz of spectrum for nonfederal and shared use but doesn’t propose applying proceeds from sales of those frequencies to pay for other telecom priorities as HR-3565 does.

Cruz Factor

Cruz’s draft “would obviously be a preferable option in my view,” Thune told us. “We’ve got to fill the pipeline with both licensed and unlicensed spectrum,” especially given perceived shortcomings in the Biden administration’s national spectrum strategy (see 2311130048). The timeline for formally filing the Spectrum Pipeline Act remains uncertain, “but we’re getting feedback from stakeholders” now, Thune said: “I don’t know where Cantwell will fall” on the draft, which could determine its prospects for clearing Senate Commerce. Cantwell and House Commerce Chair Cathy McMorris Rodgers, R-Wash., told us they hadn’t fully reviewed draft language that Cruz’s office began circulating just before Thanksgiving but were aware of its existence.

“We’re fully committed to getting the FCC’s spectrum auction authority going again,” but “we’re still working on what the best path forward is,” Rodgers said. “I’m concerned about American leadership in 5G and believe it is critical that we get this worked out. It should never have expired” and it’s important that any deal be something that “we can get through the Senate.” Lobbyists expect Rodgers and other House Communications members will use a Tuesday NTIA oversight hearing to probe how the agency and the Commerce Department interpret DOD's lower 3 GHz band report.

“Everybody needs to talk this through and see what exactly we can and can’t have” in a spectrum package because of what DOD is saying, said House Communications Chairman Bob Latta, R-Ohio. “What we can’t allow to happen is for the U.S. to fall behind” on wireless policy. The priority will still be restoring the FCC’s mandate, because “no one would have anticipated it would still be lapsed” this close to the end of 2023, he said.

“We just have to get through this” and “figure out how to move forward,” Matsui told us. “I don’t think conversations helped” when lawmakers didn't know what the DOD report would say, but having the findings may provide more clarity. She doesn’t believe the Biden administration “will let DOD fully dictate” what happens on the lower 3 GHz band but “we’re going to have to figure something out,” she said: “I don’t want that to take forever, because we don’t have forever.” Rep. Anna Eshoo, D-Calif., advised lawmakers “see what happens in the Senate” since there’s “been some movement” in the chamber from Cantwell on spectrum talks.

Clean Renewal?

“There are serious long-term implications hanging in the balance” as the U.S. inches close to nine months with the FCC’s authority lapsed, including “America's global competitiveness and the race to 6G,” Cooley’s Robert McDowell said in an email. “But the quickest practical option is a clean auction reauthorization, even if for a limited time.” Getting a comprehensive pipeline bill out of Congress is “a pipe dream,” but lawmakers will feel increasing pressure as the March expiration anniversary approaches, he added.

The DOD report is unlikely to have a significant effect on legislative talks because it says what everyone expected, but its circulation will at least remove uncertainty about the outcome as a sticking point, said Joe Kane, Information Technology and Innovation Foundation director-broadband and spectrum policy. The apparent restart of talks makes an FCC mandate renewal “more likely than it has been for months.” Kane expects a “push” for a pipeline that “adds bands for study and ensures any studies focus on finding significant bandwidth for commercial use.”

Cruz’s draft bill fills a gap but may face “an uphill battle” because it doesn’t delineate use of auction proceeds, Kane said. Kristian Stout, International Center for Law & Economics director-innovation policy predicted congressional politics might not work in favor of the Cruz bill, but the measure could gain traction “if it aligns with broader national security and technological competitiveness goals.”

A “clean” FCC authority reauthorization may become “more likely as a compromise solution given the variety of contentious issues surrounding the whole process,” Stout added. Recon Analytics’ Roger Entner believes there’s momentum for HR-5677/S-2787, but a clean reauthorization is unlikely because the “whole purpose of” setting a time limit on the mandate “is to enshrine a spectrum pipeline.”