C-Band Act Expected to Be Hearing's Marquee Focus; CBA Ups Clearing to 280 MHz, Plus Guard Band

The CBA plan could now clear nearly 300 MHz within about three years, more than the 200 MHz previously estimated. That "includes a 20-MHz guard band to protect existing satellite services from 5G interference," said Intelsat CEO Stephen Spengler in an FCC filing on behalf of CBA. "This solution represents unprecedented coordination among satellite operators, our customers, and the FCC." SES and Telesat are also CBA members.

Lobbyists expect the House Communications hearing to explicitly be a venue to promote the recently filed Clearing Broad Airwaves for New Deployment (C-Band) Act (HR-4855) despite the long odds against C-band legislation passing Congress this year. HR-4855 would require a public FCC auction of 200-300 MHz of “contiguous” spectrum in the C band by Sept. 30, 2022. The bill would require the auction to occur in a way that ensures C-band incumbents “receive equal or better service as before” the sale “continuously throughout the transition process” (see 1910240046). Three of the five witnesses to testify Tuesday favor a public, FCC-led C-band auction.

House Communications Chairman Mike Doyle, D-Pa., insisted before HR-4855's release last week that the subcommittee's panel won't be a “legislative hearing." He noted at that point that he was continuing to pursue a pro-public auction bill with Vice Chair Doris Matsui, D-Calif., and others. Doyle and Matsui had been working since the summer to marry their separate C-band proposals (see 1907150020). The House Commerce Committee Democrats' briefing memo on the hearing mentions both HR-4855 and Matsui's Wireless Investment Now in 5G Act (Win 5G) Act (HR-4171), which would set up a tiered system for satellite companies to benefit from a public auction (see 1908070073).

Auction Concerns

“It seems like [the FCC] may be moving forward in December” on the C-band proceeding “so we want to make sure we weigh in before that happens,” Doyle told us. FCC Chairman Ajit Pai is expected to propose a private auction plan for a vote at the commissioners' Dec. 12 meeting (see 1910100052).

“I obviously favor a public auction where the government would get the proceeds, which could be used as a pay-for for rural broadband deployment,” Doyle said. “I think a lot of members on both sides of the aisle” would support that. “This could be an opportunity to get the spectrum we need” for 5G deployments and simultaneously create a new dedicated funding stream for broadband, so “we want to gauge” whether such a plan has support, he said. Doyle began citing a public C-band auction as a broadband funding source in May (see 1905150061).

Senate Appropriations Financial Services Chairman John Kennedy, R-La., told us he's continuing to pursue a second C-band hearing involving FCC auction-focused staff, amid his separate push for a public auction. “It will happen shortly,” he said. “I'm also moving forward” with a bid to retain Senate Appropriations Committee-backed pro-public auction language (see 1909190079) in the chamber's version of the FY 2020 FCC-FTC budget bill (S-2524) despite opposition from Senate Commerce Committee Chairman Roger Wicker, R-Miss., and Senate Communications Subcommittee Chairman John Thune, R-S.D. “I'm still hoping [Wicker and Thune] will come out on the side of the taxpayers” by backing the nonbinding language, Kennedy said. Wicker confirmed he hasn't reached a resolution with Kennedy in the dispute (see 1909270024).

Public Knowledge Policy Director Phillip Berenbroick and Phoenix Center Chief Economist George Ford said they expect HR-4855 to be the centerpiece of House Communications' discussions Tuesday. They're on opposite sides on the measure and the C-band debate.

HR-4855 “completely ignores the underlying economics of the [CBA] proposal,” Ford said. The group's member satellite companies are “the most knowledgeable about how much spectrum can be repurposed, how much needs to be retained for existing” and other “relevant” issues. HR-4855 is “bound to be an inefficient outcome, not to mention that you just made an enemy of the incumbents,” Ford said. “One of the concerns about the private auction is litigation,” but “you're going to get much more litigation” by enacting the measure.

Berenbroick, one of the witnesses set to testify Tuesday, strongly supports HR-4855. The hearing will be an important gauge of whether additional Republicans will support a public C-band auction, he told us. Doyle got two Republicans -- Reps. Bill Johnson of Ohio and Greg Gianforte of Montana -- to sign on as initial sponsors of the measure. Other Hill Republicans also backed a public sale, but House Commerce ranking member Greg Walden of Oregon has been skeptical (see 1908230049). Walden announced Monday he won't run for re-election in 2020 (see 1910280020).

Testimony

HR-4855 “presents the fastest, most legally sound way for the FCC to repurpose a significant portion of C-Band spectrum for 5G deployments, while also returning tens of billions of dollars of estimated auction proceeds to the Department of the Treasury,” Berenbroick says in his written testimony. “Congress could then allocate those funds to address pressing national priorities, such as closing the digital divide.” A “private auction of new C-Band licenses would run afoul of past precedents where Congress has stepped in to prevent the Commission from proceeding with similar schemes that would enrich a small set of stakeholders at the expense of the public,” he says. It's “also likely to distort competition in the mobile wireless market because it would likely exclude small and rural broadband providers."

Two other witnesses favor a public auction in their written testimony. America's Communications Association Vice President-Government Affairs Ross Lieberman notes the group's proposal, made with the Competitive Carriers Association and Charter Communications, which prefers a public auction and proposes transitioning broadcasters to fiber as an alternative to C-band spectrum 1907150010). “Cable operators and programmers are widely distributing video programming via fiber today,” Lieberman said. “If Congress and the Commission are sincere in making users whole, then cable operators, those that are using more than half of the C-Band today, must be given the option to transition to fiber.”

Citizens Against Government Waste “believes only the FCC may legally conduct any auction of publicly-held spectrum, including spectrum repurposed from” the C band, says Director-Technology and Telecommunications Policy Deborah Collier. “The CBA’s second-price, sealed bid auction proposal is exceptionally complex and lacks transparency in how winning bids would be determined, creating uncertainty for mobile providers.” Any “delay in the sale of the spectrum is a luxury the U.S. government does not have,” she said. “The FCC-conducted public auction process is well-documented and administratively simple, encouraging a broad spectrum of bidders from a variety of incumbents and new entrants.”

ABS Global CEO James Frownfelter appears to seek a middle ground between CBA and pro-public auction advocates. He is testifying on behalf of ABS and two other small satellite operators -- Claro and Hispasat. “Evicting any satellite operator from some or all of its licensed C-band without compensation would be unfair, possibly unlawful and, more importantly, unwise,” Frownfelter says. A compromise would involve a private auction of 300 MHz of C-band spectrum with a mandate that satellite incumbents make “multi-billion-dollar payments to the Treasury” from the sale proceeds. It would also involve providing “financial incentives for U.S. earth station operators” facilitate a fast transition process, he says.

Cisco is “not wedded to any particular mechanism for the transition of spectrum from one use to another,” says Vice President-Government Affairs Jeff Campbell. “We do believe that, historically, government-led spectrum transitions have been tremendously difficult and slow, and that in the case of” the entire 3 GHz band, the U.S. government “needs to put a priority on dispatching this work at a faster clip.” At “best, a government-run auction would likely occur sometime in 2021, and [HR-4855] puts the date sometime in 2022,” Campbell said. “That compares to CBA’s view that it could run an auction by mid-2020.”