Quick 2024 Spectrum Package Deal Unlikely to Follow 5G Sale Act

Congress is unlikely to follow up the 5G Spectrum Authority Licensing Enforcement Act (S-2787) with a near-term agreement on a broader spectrum legislative package, certainly not in time to factor into the upcoming debate over funding the federal government once an existing continuing resolution expires Feb. 2, lawmakers and lobbyists told us. President Joe Biden signed the 5G Sale Act last week (see 2312200061), giving the FCC temporary authority to issue 2.5 GHz band licenses that T-Mobile and others won in a 2022 auction. All sides view the measure as a stopgap, required after months of stalled talks on Capitol Hill for a broader legislative package that would renew the FCC’s lapsed general auction authority (see 2312040001).

“I think there’s room to keep going” on spectrum legislation and enactment of the 5G Sale Act may help increase the momentum of negotiations, said Senate Commerce Committee Chair Maria Cantwell, D-Wash. “It’s all about getting everyone in the same mindset on numbers.” Her office is “trying to get some things square with” the Congressional Budget Office on its scoring of a renewal of the FCC’s mandate. “I think there’s other spectrum we could use” for 5G that could be part of a legislative package while all sides work through what to do about the 3.1-3.45 GHz band given the results of a DOD study on how repurposing parts of the frequency for commercial 5G use would affect incumbent military systems, Cantwell told us.

“Progress is good,” even when it’s a stopgap like the 5G Sale Act, said Senate Communications Subcommittee Chairman Ben Ray Lujan, D-N.M. Given the "stalemate" on spectrum reauthorization that measure “will move the argument forward. And it will still provide some authority where none exists today because of the lack of action" by Congress. “The ideal would be to have a spectrum package move,” but “any movement that pushes the ball down the field and keeps us heading in the right direction is helpful,” said subpanel ranking member John Thune, R-S.D.

The U.S. “is falling behind every day” the FCC’s auction mandate remains lapsed, as it has since March (see 2303100084), said House Communications Subcommittee Chairman Bob Latta, R-Ohio. Whatever lawmakers do next on reauthorization needs to give all stakeholders more certainty and “can’t be another short-term” renewal like the one enacted in December 2022 as part of the FY 2023 appropriations omnibus package (see 2212300046).

Approving the 5G Sale Act was the best way for Congress to “do something” that showed progress during 2023 in the spectrum legislative debate, even though it’s just a stopgap, said House Communications ranking member Doris Matsui, D-Calif. “I don’t want us to look like we’re continually stuck.” The statute “does help” keep the debate going because the focus on the measure has meant “spectrum is always on people’s minds now” as part of what’s needed to keep the U.S. a leader on wireless technology policy, she told us. It also provides assurances to the private sector by demonstrating the federal government has been able to keep its commitment to the 2.5 GHz auction winners.

Senate Commerce ranking member Ted Cruz, R-Texas, described the spectrum bill talks as “stuck at something of an impasse.” He's "still trying to unstick” the talks, but this is “proving more stubborn than it should." Cruz cited DOD’s staunch opposition to a lower 3 GHz auction as a major factor. “Opening up more spectrum for the private sector is critical for ensuring that we compete effectively with China going forward,” he said: “I don’t know that there is another policy at the federal level that can have a greater positive impact on jobs and economic growth than opening up” the airwaves.

What's Ahead

“We’re continuing to work to build up the coalition behind” the draft 2023 Spectrum Pipeline Act (see 2311220063) as an alternative to the House Commerce Committee-approved Spectrum Auction Reauthorization Act (HR-3565), Cruz told us. The draft measure would direct NTIA to identify within two years at least 1,500 MHz of spectrum for nonfederal and shared use. It doesn’t propose using proceeds from the sale of those frequencies to pay for other telecom priorities. Cruz and Thune oppose HR-3565's spending proposals, particularly a proposal to allocate up to $5 billion for middle-mile projects previously included in the 2021 Infrastructure Investment and Jobs Act (see 2306120058).

Latta and Matsui separately confirmed to us DOD is planning a January briefing for House Commerce members on the results of the department’s lower 3 GHz study. Panel Chair Cathy McMorris Rodgers, R-Wash., and others want more details on the DOD report. This will help them decide whether the findings justify ruling out an auction of the frequency, as critics contend (see 2311290001). House Commerce advanced HR-3565 in May with language mandating such an auction with an eye to using the revenue to pay for other telecom projects (see 2305240069).

“We’ll be seeing all of DOD’s data right after we get back” in January, though “I’d have liked to see it” before Congress recessed for the holidays so House Commerce members could get right back into talks with the Senate after the break, Latta told us. “We’re ready to roll and get this done any time, any place, anywhere” once that information is available.

“We always knew” that DOD’s lower 3 GHz study wasn’t going to favor an auction, Matsui said. “When we get more information” on the findings “we can start really talking through” how to move forward on a legislative solution. There are "things we can do” rather than completely abandon hope of putting 5G on the band, including potential mitigation strategies, she said: “The administration understands there are a lot of lawmakers who are concerned about where we are and that we don’t want to lose the kind of leverage” the U.S. has in shaping wireless policy.

The strategy FCC Chairwoman Jessica Rosenworcel and the other commissioners have employed in pushing Congress to renew the auction authority “does not appear to be working so far,” said New Street’s Blair Levin. “Certainly” Congress’ ability to solve the 2.5 GHz licensing mandate issue separately from an overall mandate shows Rosenworcel’s refusal to issue those licenses without Hill action “has failed spectacularly” as a tactic for forcing lawmakers to reach a broader deal. “Everyone is in favor” of reauthorization, but not enough people in Congress seem to believe it’s an urgent issue, Levin said: “It’s baffling.”

“I’m not optimistic about a quick, short-term resolution” of the spectrum bill talks, said Cooley’s Robert McDowell, a former FCC commissioner. Continued delays risk “not only the completion of 5G but also the start of 6G.” There “is spectrum available to auction” that the FCC could tell Congress it would be able to quickly tee up for sale after restoration of its remit, he said. McDowell cited potential sale of some portions of the upper 12 GHz band and the 197 AWS-3 licenses that Dish and its affiliated designated entities returned to the FCC after the agency denied them $3.3 billion in bidding credits (see 2307280046). Sales of that spectrum could collectively generate $6 billion-$7 billion, he said.