Cantwell Eyes Potential Changes to Spectrum and National Security Act After Markup Delay

Senate Commerce Committee Chair Maria Cantwell, D-Wash., said Wednesday she's talking to a range of lawmakers seeking potential changes to an amended version of her draft Spectrum and National Security Act after the panel pulled Cantwell’s bill and 12 others from a planned Wednesday markup session Tuesday night (see 2404300072). The potential for the spectrum bill to make it into the bipartisan 2024 FAA Reauthorization Act “got precluded weeks ago,” Cantwell told reporters. The Senate voted 89-10 to invoke cloture on the motion to proceed to the FAA bill as a substitute for Securing Growth and Robust Leadership in American Aviation Act (HR-3935). Lawmakers are still eyeing other vehicles for allocating stopgap money to keep the FCC’s ailing affordable connectivity program running through the remainder of the year. Those proposals include a bid from Sen. J.D. Vance, R-Ohio, that would attach an amendment to the FAA package appropriating ACP $7 billion (see 2405010055).

Cantwell told reporters Wednesday she decided to postpone the Senate Commerce markup when “we had a bunch of amendments filed” that would have taken too much time to work through. Her measure would restore the FCC’s spectrum auction authority through Sept. 30, 2029, and use future sales revenue to fund ACP and a range of other communications and technology priorities (see 2404250061).

Cantwell said during the Commerce meeting she intends to “take up” her bill and others originally on the agenda “at a future time.” The other postponed measures include: the Rural Broadband Protection Act (S-275), Network Equipment Transparency Act (S-690), Protecting Kids on Social Media Act (S-1291), Create AI Act (S-2714) and Future of AI Innovation Act (S-4178).

Senate Commerce received 24 amendments to the Spectrum and National Security Act by Tuesday night, including eight led by Sen. Deb Fischer, R-Neb. "We're talking to a lot of people" about potential changes, Cantwell told us. She said Fischer thanked her for postponing a vote on the bill because “‘we need more time.’” Lobbyists told us Fischer is strongly leaning toward backing Cantwell's bill once it comes up for a panel vote, as expected (see 2404300052). Two other Commerce Republicans also are leaning toward backing the measure: Armed Services Committee ranking member Roger Wicker of Mississippi and Vance. All 14 Senate Commerce Democrats will likely back Cantwell’s bill.

GOP Wild Cards

Fischer remained tight-lipped about her intentions on the Cantwell bill, telling us after the Senate Commerce meeting the matter “didn't come up today.” Cantwell reportedly already backed two of Fischer's proposed amendments, lobbyists told us. One would strike language from a “sense of Congress” provision referencing DOD and NTIA as agreeing with the Biden administration’s national spectrum strategy (see 2311130048).

The other Fischer amendment Cantwell accepted would remove language instituting an incumbent informing capability, an advanced sharing system that has been a DOD and NTIA focus (see 2010160062), as part of the Commerce Department’s spectrum management protocols. Another of Fischer’s proposed amendments aimed to give DOD strengthened veto power over plans for dynamic sharing of spectrum on the military-controlled 3.1-3.45 GHz band. That band has been a focus for Fischer and other Senate Armed Services members (see 2306120058).

Vance told us it’s “extremely difficult to say” whether he would have voted for the Spectrum and National Security Act if Senate Commerce had raised the measure Wednesday as planned. “How you vote depends on how other amendments go and what the overall policy looks like,” he said: “I can’t say whether I would have voted for it. I do think we should figure out the spectrum problem.” He didn’t offer amendments to the measure. Wicker declined an interview request. He proposed two amendments aimed at striking or altering the Cantwell bill’s ACP language.

House Commerce Committee Chair Cathy McMorris Rodgers, R-Wash., told us she needs to “look at what [Cantwell is] proposing” before deciding whether to back the Senate-side measure. House Commerce moved on its now-stalled Spectrum Auction Reauthorization Act (HR-3565) last year with Cantwell's blessing (see 2305240069). HR-3565 mirrors Cantwell’s bill in using airwaves sales revenue to pay for major telecom projects but doesn't address ACP. House Commerce GOP staff “provided a lot of edits and more information as to what we would need" to support Cantwell’s bill, an aide told us Tuesday night.

Thune Sees 'Problems'

Senate Communications Subcommittee ranking member John Thune of South Dakota confirmed to us he would have voted against the Spectrum and National Security Act had it come up Wednesday. He believes most other Commerce Republicans would have done the same. Cantwell “knew there were going to be problems on our side” about her bill and she proceeded to pull “all the legislative items that were going to be on the markup” in response, Thune told us.

Senate Commerce ranking member Ted Cruz, R-Texas, chastised Cantwell during the meeting for striking the entire legislative slate from the agenda given all but one of the measures “would have moved unanimously by voice vote. I suspect my disappointment is shared by members on both sides of the dais. I hope we'll reconvene quickly and pass [the bipartisan bills] by consent, which every member was prepared to do” Wednesday. He filed an amendment to the Spectrum and National Security Act that would have replaced Cantwell's proposal with his 2024 Spectrum Pipeline Act (S-3909). That bill would require NTIA to identify at least 2,500 MHz of midband spectrum the federal government can reallocate for nonfederal or shared use within the next five years (see 2403110066).

It was always going to be “tricky” to address restoring the FCC’s spectrum auction mandate and ACP funding in a single bill like Cantwell and other Democrats now back because “they’re the most complicated, contentious issues in telecom right now,” said Joe Kane, Information Technology and Innovation Foundation director-broadband and spectrum policy. “I think there’s a way that they can work together,” although Cruz “has been pretty clear” about opposing using auction proceeds to pay for telecom projects. Incorporating provisions from Cruz’s S-3909 “identifying specific bands for auction could help” smooth the path toward consensus, Kane said.

AT&T’s DirecTV, Intelsat and three other satellite companies urged Cantwell to remove language from her bill mandating the FCC sell licenses in the 12.7-13.25 GHz band before the end of 2027. That frequency, along with the adjacent 12.2-12.7 GHz band, “is essential for continued development of satellite services for consumers,” the satellite entities said in a Tuesday letter to Cantwell. “Allowing mobile and other terrestrial services at these frequencies through an auction would interfere with millions of users in the lower 12 GHz band, would disrupt current and future uses of the upper 12 GHz band, and has serious national security and commercial implications.”