Spectrum and National Security Act Talks Fluid as Wednesday Senate Markup Looms

A Senate Commerce Committee spokesperson said Tuesday afternoon the panel remains on track to mark up the Spectrum and National Security Act (S-4207) Wednesday, but negotiations between leaders signaled the situation remained extremely fluid, lobbyists told us. Senate Commerce postponed two May markups of S-4207 amid strong opposition from top committee Republicans (see 2405010051). The measure would restore the FCC’s spectrum auction authority through Sept. 30, 2029. It would lend the commission more than $10 billion in FY 2024 funding for the expired affordable connectivity program and fully pay for the Secure and Trusted Communications Networks Reimbursement Program. The Senate Commerce meeting will begin at 10 a.m. in 253 Russell.

Senate Commerce Chair Maria Cantwell, D-Wash., hadn’t agreed to updating an S-4207 manager’s amendment as of Tuesday afternoon, but changes appeared likely. She was considering revisions that could get ranking member Ted Cruz of Texas and other Republicans to back the measure, lobbyists told us. The slate of other potential amendments remained unchanged Tuesday from the 50-plus proposals committee members sought ahead of a scuttled May 16 meeting (see 2405160066), lobbyists said. Many of the amendments were GOP messaging proposals, including a rescission of the FCC’s April net neutrality order (see 2404250004) and a Cruz-led attempt to significantly scale back ACP’s scope.

Democratic leaders were considering expanding the amount of bandwidth that S-4207 would mandate the FCC sell, albeit not to the level Cruz seeks in his alternative 2024 Spectrum Pipeline Act (S-3909), lobbyists said. S-4207 as currently filed requires that the FCC sell licenses only on the 12.7-13.25 GHz band but also directs that NTIA assess the 7 GHz, 8 GHz and 37 GHz frequencies. S-3909 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. It wasn’t clear whether Cruz would back pipeline language that didn’t go as far as S-3909, but it appeared to be enough to potentially sway some of Senate Commerce’s 12 other GOP members, lobbyists told us.

The revisions would make “a sufficient amount” of spectrum available for auction to offset the proposed funding for ACP and rip and replace, along with a few other telecom projects lawmakers have been pushing, a communications sector lobbyist said. That could be enough for support from some Senate Commerce Republicans, though they face enormous pressure not to break with Cruz if he’s not on board, lobbyists told us. It wasn’t clear whether Cantwell had agreed to include at least part of the language from the pro-ACP amendment Senate Communications Subcommittee Chairman Ben Ray Lujan, D-N.M., unsuccessfully tried to include in the FAA Reauthorization Act (see 2405090068). That measure would pair stopgap funding with changes to the broadband program’s rules.

Senate Commerce leaders were also considering how to address concerns S-4207 could provide a loophole for sales of spectrum on the 3.1-3.45 GHz band, lobbyists said. That issue stymied progress last year (see 2306120058) on the House Commerce Committee-cleared Spectrum Auction Reauthorization Act (HR-3565), which mandated an auction of band licenses. A rider temporarily precluding 3.1-3.45 GHz sales could help sway several Senate Armed Services Republicans who are part of the Commerce panel, most notably Sen. Deb Fischer of Nebraska, lobbyists told us. They noted several Armed Services subcommittees will be marking up their portions of the FY 2025 National Defense Authorization Act at the same time as the Senate Commerce meeting.

It's “a difficult set of policy principles to bridge,” said Digital Progress Institute President Joel Thayer. “Cruz wants something that we all want: a path forward on a spectrum pipeline. If there are elements” added to S-4207 “that get us one step closer to that, even if that means developing a report on what spectrum bands can be part of the pipeline, that’s a middle ground. At least they’re on the table,” even if it’s not a definitive mandate. “We’ve done this dance so many times” already, he said.

Expanding S-4207’s spectrum sales mandate would “move us closer to a bill that could sustainably fund ACP,” but it could be difficult for Senate Commerce leaders to find a “happy medium” between that bill and Cruz’s S-3909 that doesn’t upset pro-DOD lawmakers, said Joe Kane, Information Technology and Innovation Foundation director-broadband and spectrum policy. “The more prescriptive you get with spectrum coming from DOD-incumbent bands, the more pushback there’s going to be” from Senate Armed Services members.

Engine, TechNet and six other tech groups told Cantwell and Cruz Tuesday they support S-4207’s proposal to allocate $2 billion in future spectrum auction revenue to fund the Commerce Department’s Regional Technology and Innovation Hubs Program. The groups also praised S-4207’s proposal for allocating $3 billion for Chips and Science Act-authorized semiconductor manufacturing incentive grants and $5 billion for other National Institute of Standards and Technology and National Science Foundation research programs. Senate Commerce should continue "prioritiz[ing] Regional Tech Hub funding” as it moves forward on S-4207, the groups said in a letter to Cantwell and Cruz. “Ensuring America’s global competitiveness requires sustained investment across important programs such as this.”