Wicker Growing Pessimistic About Prospects for C-Band Legislative Deal
Senate Commerce Committee Chairman Roger Wicker, R-Miss., believes there’s a rapidly decreasing likelihood lawmakers will reach a deal on legislation allocating the proceeds of a coming FCC auction of spectrum on the 3.7-4.2 GHz C band before or after the commission's planned Feb. 28 vote on Chairman Ajit Pai’s proposal (see 2002060057). House Commerce Committee leaders don’t share Wicker’s pessimism. The House-side lawmakers plan further talks this week on a coming bill, which has become their main telecom policy priority (see 2002070044).
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“There is a real possibility we will not get a bill to [President Donald Trump’s] desk,” Wicker told reporters Monday. Vice President Mike Pence and National Economic Council Director Larry Kudlow endorsed Pai’s proposal soon after its formal release Friday (see 2002070016). That “makes me think if the Congress in its wisdom sent the president something that is too different from that approach, [Trump] might not be disposed to sign it," Wicker said. "In that case, the decision of the FCC is the law of the land.”
Wicker said he and Senate Communications Subcommittee Chairman John Thune, R-S.D., are continuing to “advocate” for a legislative solution like their 5G Spectrum Act (S-2881): “I’m just looking down the pike” at the likely endgame if a compromise isn’t readily available. S-2881 would set a graduated scale for amounts the FCC would be required to return to the Treasury from C-band proceeds, beginning with “not less than 50 percent” of the first $40 billion. Wicker unsuccessfully attempted to attach language from S-2881 to an FY 2020 appropriations law passed in December (see 1912160061).
The Spectrum Management And Reallocation for Taxpayers (Smart) Act (S-3246) is also “something to look at,” but “I don’t think it would clear the full Senate” as written, Wicker said. “The signals coming out of the White House” from Kudlow and others indicate they believe Pai’s “approach is far better.” S-3246 would set aside some sale proceeds for relocation, incentive and U.S. Treasury payments. It would reserve the bulk of the money for rural broadband and next-generation 911. Senate Appropriations Financial Services Subcommittee Chairman John Kennedy, R-La., and Senate Commerce Democratic leaders are spearheading the measure (see 2001280041).
Kennedy told us he’s “very optimistic” about reaching a legislative deal, noting his ongoing talks with House Commerce Committee leaders on a consensus between their own pending legislation and S-3246. “I’d love to have [Wicker] join with us” on a compromise, Kennedy said. House Commerce Chairman Frank Pallone, D-N.J., ranking member Greg Walden, R-Ore., and House Communications Subcommittee Chairman Mike Doyle, D-Pa., are collaborating on a measure that could somewhat mirror S-3246. It’s likely to include a much higher incentive payment figure (see 2002050057).
Kennedy fully intends to hold additional C-band-centric Senate Appropriations Financial Services hearings “within weeks” now that the chamber has concluded the Trump impeachment trial, as expected (see 2001090021). Kennedy intends to use the hearing to amplify his criticism of Pai’s auction proposal, so Pai “needs to sharpen his pencil” and make sure FCC officials can explain the decision. “Before we start giving away taxpayer money, I want to know what the basis is for it,” Kennedy said. Pai “can get a lot better deal here than what he’s getting.”
“The main problem that I have with [the proposal] is that [Pai is] giving away too much money” via accelerated relocation payments, which are expected to total $9.7 billion, Kennedy said. Pai is aiming to use the incentive payment to avoid litigation, but “there’s going to be litigation no matter what he does.” The “issue is going to be whether somebody can get an injunction to shut down a public auction,” but “I don’t think a judge will do that,” Kennedy said.
“I’m not ready to get in my pessimistic mode yet” about C-band legislation, despite what Wicker says, House Commerce ranking member Greg Walden, R-Ore., told us. “Legislating in this space is always hard, but we’ve got some good discussions going on” among committee leaders that will continue this week. Walden said he doesn't expect the measure to be ready for filing this week. Congress will be on recess next week and won’t reconvene until Feb. 25.
“I don’t think any of us ever believed that getting consensus in the House and Senate was going to be easy,” Doyle said. “I’m not suggesting we’ve got a clear pathway,” but “we’re still doing our work in the House” to find a compromise. Lawmakers shouldn’t see the FCC’s Feb. 28 vote as an artificial timeline that cuts off Capitol Hill’s ability to legislate on the auction, he said. “Once we pass legislation, that’s what they have to do,” and “we’ve got time” since the auction wouldn’t happen until Dec. 8.
“We still think it’s necessary to have a bill” to allocate money from the sale and shape the contours of the auction itself, Doyle said. “It looks like Pai is talking about just doing an emerging technologies auction where they bid for the right to negotiate, which I think also could depress the amount of money coming in” from the auction.