Lawmakers Weigh C-Band Legislation, Before FCC Auction Decision

“If we’re going to do something, we’re going to have to do it sooner than later,” said House Communications Chairman Mike Doyle, D-Pa., in an interview. He and colleagues heard chatter about potential FCC action in September, so “hopefully over the break we’ll get into a position where we’re going to know where we’re at” in work among subcommittee Democrats and with Republican colleagues. Doyle and House Communications Vice Chair Doris Matsui, D-Calif., are working to marry elements of their separate C-band bills (see 1907150020). Doyle and others argue proceeds from sales of the spectrum should be used to pay for rural broadband deployment (see 1907250068).

House Commerce Committee ranking member Greg Walden, R-Ore., told reporters he remains “a little skeptical” about the need for C-band legislation given the FCC’s work to reach a decision (see 1907160067). “I know some see [a public C-band auction] as a pay-for for broadband buildout and I’d clearly like to be helpful in that area,” he said. “But we have to be thoughtful about” how Congress gets involved in the debate because incumbents in the swath “aren’t forced to give it up for sale. You’ve got to get the right deal if a deal is to be had.”

“We’re going to continue to work with the Republicans” to reach a consensus, Doyle said. “But at some point, you’re either going to have something we can do with them or not. Otherwise, Pai is going to go with his own plan.”

Doyle's office is circulating a new draft ahead of a likely September filing that's substantially similar to the version first floated last month, communications sector lobbyists told us. Doyle’s draft measure aims to approach C-band reallocation via a “hybrid” approach, with 400 MHz of spectrum on the band repurposed in four phases over a 10-year period. Matsui filed her Wireless Investment Now in (Win) 5G Act this month (see 1908070073). HR-4171 would set up a tiered system for satellite companies to benefit from an FCC-administered auction of C-band spectrum in which freeing up additional spectrum would increase satellite companies share.

Some believe there's likely to be a “sidelining” of Matsui's office in the collaboration with Doyle since the departure earlier this month of Legislative Director Alex Damato, who had been a main driver of work on HR-4171. Damato joined Wilkinson Barker (see 1908120047). Matsui's office will remain an active player in developing a joint measure, but the same degree of pushback is seen as unlikely.

Senate Ponders

Senate Appropriations Financial Services Chairman John Kennedy, R-La., told us he’s still “thinking about” whether he will seek a pro-public C-band auction rider to the subcommittee’s FY 2020 budget bill, which would include annual funding for the FCC. Kennedy has repeatedly raised concerns about the C-Band Alliance’s proposal for a private auction to free up 200 MHz of C-band spectrum. He said in July going with the CBA proposal would be “our generation's 'high-tech'” equivalent of the U.S.' decision to give up control of the Panama Canal (see 1907190051). Sen. Steve Daines and Rep. Greg Gianforte, both Montana Republicans, favor a private C-band auction (see 1907290061).

Senate Commerce Committee Chairman Roger Wicker, R-Miss., told us he hasn’t spoken with Kennedy about C-band issues, but “I’d be happy to hear from him or anyone else on that.” Senate Commerce ranking member Maria Cantwell, D-Wash., believes the committee and Capitol Hill generally should be taking an active role in directing the FCC’s decision. The potential C-band auction proceeds are “an important revenue source and it’s something Congress should be paying more attention to,” she said.

“It’s best to let the FCC deal with” the C-band debate without intervention from Congress, Senate Communications Subcommittee Chairman John Thune, R-S.D., told us. “There have been questions about a potential private auction. But I think whatever they can do to maximize the amount of spectrum we get into commercial use and maximize revenue to the FCC as well would be a good outcome.”

Sen. Cory Gardner, R-Colo., defends his decision to jettison C-band-centric language from his refiled version of the Advancing Innovation and Reinvigorating Widespread Access to Viable Electromagnetic Spectrum (Airwaves) Act. That version of S-2223, which aims to identify spectrum for unlicensed use and free up mid-band spectrum for wireless industry purchase, no longer requires a public auction of C-band spectrum (see 1907240033). Doyle is working on a differing House version of the measure. Gardner told us he decided to take out the public auction requirement as part of his bid to “perfect the bill so that we can get it passed.”

Process Concerns

Supporters and opponents of Hill intervention here agreed the timeline for Congress to weigh in with legislation before the FCC makes its decision will be tight.

"The train is already going down the tracks" since the FCC is likely to make a decision on the path forward this year, said American Action Forum Director-Technology and Innovation Policy Will Rinehart. “I don't really know that there's going to be a desire by Congress to push back against the FCC.”

Congress should let the agency decide without interference since “complicated engineering and economic trade-offs” in the debate are “best answered by an independent expert agency,” said Information Technology and Innovation Foundation Director-Broadband and Spectrum Policy Doug Brake. There's unlikely to be sufficient momentum in Congress to countermand the FCC's decision unless Pai decides to back a plan along the lines of CBA's proposal for a private auction, a telecom lobbyist said.

“I think the House [Democrats] would go ahead and vote on this," said New America’s Open Technology Institute Wireless Future Project Director Michael Calabrese. "If only to send a strong signal to the FCC and to plant the flag for a great campaign issue against Republicans” by arguing a vote against the legislation would be akin to “supporting a windfall for European [satellite] companies rather than rural broadband infrastructure."

Congress doesn't “need to beat the FCC to a decision on this” and could use legislation to rebuke the commission if it chooses a private auction, Calabrese said. Senate Republicans like Kennedy could also claim a “big win ... if they can deliver rural broadband to their states by using essentially free money” drawn from C-band auction proceeds. Opposition to a private auction from Kennedy, Daines and Sen. Dan Sullivan, R-Alaska, makes it surprising they haven't filed legislation, a pro-public auction lobbyist said.