Wicker Eyes Ligado Hearing; No Armed Services Consensus

A Senate Commerce Ligado hearing is “something I’m actively considering,” said Wicker, also a Senate Armed Services member, in an interview. “There’s a lot to be said for that idea” because “there are certainly two sides to almost every issue. And it’s hard to imagine that there’s not a way to accommodate 5G buildout and GPS.” He’s “listening” to DOD and the FCC and hasn’t decided whether he believes Congress needs to intervene. Senate Armed Services Chairman Jim Inhofe, R-Okla., and others are exploring legislative vehicles given their concerns (see 2004230001).

“Some action has to be taken,” though Senate Commerce needs to weigh in since it’s the committee with jurisdiction over spectrum policy, Inhofe told us. “I would assume” Commerce will hold a hearing. Armed Services’ panel “confirmed what I suspected from the beginning, that the process and procedure” the FCC used to evaluate Ligado’s proposal “was wrong,” he said. The executive branch is “thinking about challenging” the agency’s decision via a petition for reconsideration, so interested lawmakers should monitor how that progresses, he said.

Senate Armed Services needs to first “take all the information” it gathered at the Wednesday hearing and “look carefully at it,” said ranking member Jack Reed, D-R.I.: The panel helped in “getting a lot of information on this" out to the public and lawmakers. A recon petition “would reopen the matter and it might be resolved administratively” without Congress needing to intervene, he said. The committee needs to “be careful that we’re operating appropriately under our jurisdiction” and not encroaching on Senate Commerce’s purview.

DOD Chief Information Officer Dana Deasy told reporters his initial preference remains an NTIA-led recon petition, which must be filed by late May. “We would go back to NTIA like we would anytime you have a difference of view with the FCC releasing a change in spectrum,” he said. “We're spending … a lot of time looking through [the FCC’s] order, and specifically identifying the areas and the reasons why we believe reconsideration is necessary.” If that process fails, the other “avenue could be legislative action,” Deasy said. That “still has to be pursued, and there [are] conversations going on to look at that.”

Legislative Uncertainties

There “are a variety of ways we could address” concerns about the Ligado decision if the petition process fails, including via the FY 2021 National Defense Authorization Act, said Sen. Jeanne Shaheen, D-N.H. She also noted the possibility of legislation on limiting FCC power in situations involving DOD. Attempts to attach telecom-related language to previous versions of NDAA bills have at times been resisted by members of the Commerce committees (see 1909180048).

Sen. Richard Blumenthal, D-Conn., told us he believes an FCC reversal on Ligado would be “highly unusual,” but “I don’t know enough yet about whether there are legitimate grounds to challenge on procedural grounds.” Senate Commerce would be justified in holding hearings “if there are the sorts of procedural irregularities” the Pentagon claims, he said. “I’m going to be talking with” Wicker about that.

Sen. Marsha Blackburn, R-Tenn., doesn’t believe legislation is needed now, but the FCC, DOD and others need to “find a way forward” on Ligado. “What we’re going to have to do is get everybody to the table,” she told us. “There is not the degree of trust” among the FCC, DOD and other agencies “that ought to be there. There is concern about past actions.”

“I’d be concerned” about seeking legislative intervention now, said Sen. Kevin Cramer, R-N.D. “I’m not convinced” yet because he hasn’t “heard the other side of the story” from the FCC and Ligado. “I have talked to some stakeholders who are very concerned” and “others who are less concerned,” he said. “What gets at me” is commissioners’ unanimous backing of the Ligado plan. Cramer noted he has “been a telecom regulator” as part of the North Dakota Public Service Commission, so he recognizes the recent rarity of unanimous policy decisions. The recon process should “play out first” before Congress intervenes because “one thing the people don’t want is Congress micromanaging the government” when it’s unnecessary, Cramer said.

Information Request

House Armed Services Chairman Adam Smith, D-Wash., ranking member Mac Thornberry, R-Texas, and others noted their “deep concern” about the Ligado decision, in a letter to FCC Chairman Ajit Pai and other commissioners. “Our committee is actively seeking solutions that will facilitate and direct [DOD] to share as much spectrum as possible for commercial use, but the nation faces threats that will require [the department] to continue to use parts of the spectrum needed for 5G,” the lawmakers said. “The concerns of national security experts must inform our efforts.”

The House Armed Services members seek copies of the FCC’s “legal analysis that led the commissioners to their determination despite the unanimous concerns of the national security community, and whether that decision is consistent with the FY17 NDAA requirement to resolve concerns of widespread interference with GPS devices prior to permitting the commercial use of this spectrum.” They want to know if commissioners received a DOD briefing “on the classified test data contained in the classified report of DoD testing to accompany” the April 2018 Transportation Department adjacent band compatibility assessment. The lawmakers also want Commissioners Jessica Rosenworcel and Geoffrey Starks to explain their statement “indicating a less than full endorsement of the approval and said the decision was a close call.”

A petition from NTIA, DOD or jointly wouldn't be surprising due to the amount of fire Defense focused on the approval, an FCC official told us. Such a petition could slow opponents as it gets put out for comment, he said. NTIA and the FCC didn’t comment.

The most recent NTIA recon petition we found was in 2016 for a tech transition order about challenges federal agencies face as telecom customers (see 1612090061). It also sought a redo in 2003 of an order setting dates for moving to narrowband equipment in spectrum below 512 MHz (see 0308150053).

The FCC’s 5-0 approval of Ligado will be tough to overturn, and that members of Congress are on both sides of the issue makes prospects for a legislative fix questionable, said spectrum and satellite consultant Tim Farrar. Ligado has sizable debt and needs to monetize its spectrum far sooner than the FCC would likely act on a recon petition, meaning such a petition would be largely meaningless, he said: The most likely option now for the spectrum is as L-band uplinks to pair with C-band downlinks, but there are no uplink deployment guardrails under the FCC order. Neither NTIA nor DOD is likely to object on that basis, Farrar said.

A coalition of primarily aeronautical GPS interests that opposed Ligado approval (see 1909090035) is discussing options, including members' own recon petitions and challenging the order in court, a lawyer for a coalition member said: It is also looking at the possibility of legislation.