Likely Amendments on Deck Targeting Mobile Now's Scope, Unlicensed Provisions

“We’ve got some amendments that we’re going to be a part of and looking at,” Sen. Cory Gardner, R-Colo., said in an interview Thursday. “I want to see as robust a bill as possible. I think the more spectrum we have out there, the better we’re going to be, particularly on areas of licensed spectrum where I don’t know that this version goes far enough. … I think there’s going to be some efforts by us to try to get some work done on expanding the scope.”

The current version lacks two provisions prized by wireless industry stakeholders, one that would provide federal agencies a big financial incentive to give up spectrum to auction and another that would increase the spectrum mandated for auction by 2024. Gardner was one of the six Commerce Committee Republicans backing last year’s Wireless Innovation Act, which took a more aggressive approach to spectrum. Sen. Marco Rubio, R-Fla., had introduced S-1618, which was backed by Gardner and Sens. Kelly Ayotte of New Hampshire, Ted Cruz of Texas, Ron Johnson of Wisconsin and Roger Wicker of Mississippi. Thune first circulated drafts of Mobile Now in November, and it became less ambitious after negotiations with the Obama administration and other lawmakers.

Schatz, meanwhile, has hoped for months to tack his Promoting Unlicensed Spectrum Act (S-2278) on to Mobile Now. CTIA raised concerns in November about the bill allowing unlicensed underlays in licensed spectrum bands, although defenders insisted the bill lacked hard requirements that would harm industry (see 1511120046).

'Hour-by-Hour' Negotiation

“It’s not day by day, but hour by hour,” Schatz, ranking member of the Communications Subcommittee, said in an interview, speaking of the negotiation over his proposal. “We are getting very close, but we’re not done.”

“I’m sure he’ll offer it,” Thune told us. “We’ve been working with his office on that issue. Hopefully by the time we mark it up, we’ll have something worked out.” Nelson was also aware of the negotiation. “We’re working that out,” Nelson said in an interview.

Some wireless industry stakeholders argue that Schatz is quietly appeasing those with concerns about the proposal, making it more palatable as an amendment. Members of the Competitive Carriers Association “are most appreciative of Senator Schatz’s responsiveness to our concerns and support moving forward with the amendment and MOBILE Now,” emailed President Steve Berry, stressing the need for licensed and unlicensed spectrum. “We are hopeful that there is a bipartisan path forward for MOBILE Now, to address spectrum demand for consumers and ease barriers to deployment for competitive carriers.” CTIA declined comment Thursday.

Schatz told us it’s too early to say whether inclusion of his amendment would be a dealbreaker determining some of the Democratic support for Mobile Now. "The committee staff and the chair and the ranking [member] have been working really hard to make this work, and I’m confident that they will, but there’s certainly a number of members who care about Wi-Fi," he said. "We think it ought to be taken care of in this bill, and I’m confident but not over-confident that we’ll get there." Of the negotiation, "there are legitimate concerns about the equities of government agencies, and it’s one thing to remunerate government agencies through the auction process indirectly but when you’re creating Wi-Fi, it’s the commons," he said. "You just have to make public policy choices about providing Wi-Fi to enable the private sector to innovate and grow, but it’s a little bit tougher of a challenge in terms of the government agencies making that spectrum available.”

Thune, third-ranking Republican in his caucus, anticipates getting Mobile Now to the chamber’s floor “fast,” depending on how this markup goes. He said in an interview Thursday that there is likely going to be an attempt to advance Mobile Now by a hotline clearance process to the floor, which can happen more quickly than processes involved in invoking a cloture vote but requires the unanimous consent of all 100 senators. “We will probably try that, if we can bring it out of the committee with a big vote, that would be certainly the most ideal, if we can hotline it,” Thune told us.

House Consideration?

The far greater unknown that many observers and industry lobbyists have pointed to for months is the lack of a precise Mobile Now House companion bill. Lawmakers in the House Commerce Committee have developed some similar broadband deployment measures but nothing along the lines of many of Thune’s provisions, such as language on millimeter wave spectrum. Many observers have also pointed to the year’s tight legislative calendar and the distractions of the presidential election. Lawmakers will be gone for a long recess for half of July and all of August.

House Communications Subcommittee Chairman Greg Walden, R-Ore., didn’t rule out taking up Mobile Now directly. “Let’s see what they get out in the Senate,” Walden told us Wednesday. “I’ve never worried too much about whose name’s on a bill, whether it’s House or Senate, it’s the policy that matters. It might be a vehicle to get other things done, too.”

Walden said he doubts the process could happen quickly and pointed to such issues as Congressional Budget Office scoring as a factor. “It depends -- how does it score,” he said. “Scoring always helps move a spectrum bill, depending on what it is, how it might score, because they’re always looking for pay-fors. But the issue around some of this, too, is it’s not that easy just to say here’s a big broad band we can go get. You’ve got often FAA [the Federal Aviation Administration], you’ve got the Defense Department, you’ve got agencies that have really specialized uses in some cases in some of these bands. Like we did to free up AWS-3, that was a yearlong project, working monthly with the agencies, everybody involved, including the broadcasters, to eventually get to the point where they say, yeah, we can do this. Then it went to auction, and it was very successful. So I think that’s kind of the pattern that works. This isn’t something you’re going to rush into.”

The expectation is that Mobile Now will proceed to CBO for scoring following committee markup, a GOP Senate Commerce Committee spokesman said. But spectrum scoring issues typically come into play when there are auctioning provisions, and the current Mobile Now text would no longer force the allocation of spectrum.

Spokespeople for other Commerce Committee members and members themselves on Capitol Hill didn’t reveal what amendments they may want to file, if any. Sen. Jerry Moran, R-Kan., had considered last year trying to attach one to Mobile Now when it was tentatively up for markup (see 1511130036), but his office provided no update. He had introduced legislation last year with Sen. Tom Udall, D-N.M., that would expand the Spectrum Relocation Fund. Sen. Amy Klobuchar, D-Minn., advanced a bipartisan broadband deployment package last fall that included far more aggressive dig-once provisions than what made it into Mobile Now. Klobuchar and Sen. Deb Fischer, R-Neb., also back the Rural Spectrum Accessibility Act (S-417), and Fischer had paired with Sen. Ed Markey, D-Mass., on legislation that would have provided a lesser incentive than what was originally in Mobile Now for agencies to give up spectrum to auction. Udall also introduced a bill in September called the Spectrum Challenge Prize Act, which would create a prize awarded for spectrum efficiency efforts.

Not all Commerce Committee members will likely be present for markup. Cruz and Rubio are in the midst of a fierce battle for the GOP nomination for president and have been frequently absent from the Capitol. Sen. Claire McCaskill, D-Mo., will also be gone due to treatment in Missouri for a recent breast cancer diagnosis. The markup is scheduled to begin at 10 a.m. Thursday in 253 Russell.

“Happy to work with the Senate Commerce Committee and Senator Thune, we’re good friends, and they’ve got a more difficult path in the Senate -- or it goes automatically,” Walden remarked of Mobile Now’s path forward. “There’s no in between, and that’s just the way that place operates. The more we can all work together and make progress on this, the better.”