More Ligado Expected at Spectrum Hearing; O'Rielly Advances

The Senate Commerce Committee advanced FCC Commissioner Mike O’Rielly’s reconfirmation to a term ending in 2024 Wednesday, as expected (see 2004030072). The committee advanced O’Rielly on a voice vote. Four Democrats asked to be recorded as opposing: ranking member Maria Cantwell of Washington, Communications ranking member Brian Schatz of Hawaii, Richard Blumenthal of Connecticut and Amy Klobuchar of Minnesota. Cantwell cited spectrum policy.

O’Rielly “has recently injected … politics into part of the spectrum issue, which I find disturbing,” Cantwell said. Lobbyists said it was likely a reference to a letter O’Rielly sent President Donald Trump in April seeking intervention to force DOD to free up more mid-band spectrum for 5G (see 2004090047). Cantwell also cited O’Rielly’s comments at the 2018 Conservative Political Action Conference in favor of Trump’s re-election, which the Office of Special Counsel found violated the Hatch Act (see 1805010083).

Blumenthal, Klobuchar and Schatz didn’t comment on their reasons for voting against O’Rielly. All sought follow-up questions to O’Rielly after a June confirmation hearing (see 2007210057).

Commerce Chairman Roger Wicker, R-Miss., hoped the full chamber “soon” confirms O’Rielly and other Trump nominees the committee advanced Wednesday. "I appreciate” O’Rielly’s “commitment not only to the speedy deployment of broadband services, but also his commitment to ensuring we are targeting the areas that need it most,” Wicker said. “Technologies like telehealth and remote learning are advancing rapidly” in response to the pandemic but “without reliable broadband, the digital divide will only become wider.”

O’Rielly thanked Senate Commerce for advancing his reconfirmation, saying he’s “pleased to have garnered the support of a bipartisan majority.” ACA Connects, Charter, the Wireless Infrastructure Association and others lauded the committee’s action.

Lawmakers' Plans

Cantwell told us it’s likely she and others will bring up the FCC’s Ligado decision during the Thursday hearing since a final resolution is “still outstanding.” Cantwell criticized the commission for approving the plan (see 2005150061). The dispute is part of the “larger issues” of “how you have fair spectrum allocation without interference” and how “we move forward on broadband” during the pandemic “when people need access to distance learning and telehealth” services, Cantwell said.

Communications Chairman John Thune, R-S.D., believes the Ligado debate “could come up” since it’s “obviously an issue that relates to the availability of spectrum” for 5G. “Midband spectrum” generally will be a major focus, though the hearing is meant to be “a more free-ranging discussion about where we are,” he said in an interview. “Hopefully, we can discuss a little bit about government sharing” of its spectrum allocations for commercial use and NTIA’s role.

Sen. Marsha Blackburn, R-Tenn., said she intends to focus on “spectrum utilization” issues. It’s something she raised during a May Commerce markup of the Spectrum IT Modernization Act (S-3717), saying DOD needed to be more efficient in its use of its existing frequency allocations (see 2005200037). “Of course the FCC’s spectrum auctions are important, but inventory and utilization … are the things I think really matter” in assessing the government’s management role, Blackburn told us.

Commerce staff expect “quite a bit of commentary and questions about” the Ligado plan because it has become the main telecom policy issue in the debate over the FY 2021 National Defense Authorization Act, said a lobbyist who follows committee activities. Both NDAA versions (HR-6395/S-4049) have anti-Ligado language (see 2007010070). The House passed HR-6395 Tuesday with its Ligado language intact (see 2007210060). Rep. Michael Burgess, R-Texas, said he voted for HR-6395 despite it including the language, noting Congress “should not be allowing [DOD] to undermine the management of commercial spectrum by” the FCC. Burgess unsuccessfully proposed amendments to the measure to strip out the Ligado text (see 2007170059).

The GPS Innovation Alliance wrote Wicker and Cantwell before the hearing to correct what they view as misstatements by Pai and others about the Ligado plan. The FCC’s decision rejected the 1 dB standard for determining harmful interference to GPS championed by the GPS industry and others (see 2004230001). Pai’s past testimony that the FCC never embraced the 1 dB standard and that NTIA rejected it is “inaccurate” and highlights the approval order’s “fundamental flaws,” GPSIA Executive Director David Grossman said.

Ligado said it spent $1.51 million on lobbying in Q2, an increase of 122% over the same period in 2019 and 106% more than in Q1 2020. Seventeen outside firms lobbied on Ligado’s behalf, including former ex-House GOP members former Armed Services Committee Chairman Buck McKeon of California, ex-Judiciary Committee Chairman Bob Goodlatte of Virginia and ex-Transportation Committee Chairman Bill Shuster of Pennsylvania. Entities representing at least 15 companies and groups besides Ligado lobbied on the company’s L-band plan, including the American Farm Bureau, Association of the U.S. Army, FedEx, Incompas, Iridium and UPS.

Expectations

“I expect you're likely to hear from one of the witnesses in an opening statement or response to questions that the Ligado issue is similar to other FCC versus federal users fights” like those on the 5.9 GHz, 6 GHz and 24 GHz bands, emailed Cooley’s Robert McDowell, who represents decision challenger Iridium. The L-band “is almost exclusively licensed to” private sector licensees “that not only serve government customers but serve mainly private sector customers.” That's “different from the other fights,” he said. “This is not a matter of a federal incumbent gripping its own spectrum and never wanting to let it go.”

There should be testimony about how DOD and other federal agencies “are basically just not giving the FCC enough breathing room to pursue 5G” given the technology’s potential economic impact, said Taxpayers Protection Alliance Policy Director Ross Marchand. “This is too important of an opportunity for agencies to stymie and prevent the FCC from pursuing.” Ligado “remains the single largest area of contention between these agencies,” so it’s likely to be the most prominent discussion topic Thursday, he said. “This process just repeating itself, where the FCC makes usually a sound decision and then agencies push back after the fact with basically no facts.”

Commerce “definitely seems to want to explore the state of U.S. spectrum management” and “there’ll probably be questions raised about some of the recent proceedings involving federal spectrum,” said New America’s Open Technology Institute Wireless Future Project Director Michael Calabrese, who’s among those set to testify at the hearing. Calabrese said he intends to focus on the need for more sharing between federal incumbents and commercial entities, such as the FCC’s proposal to allow sharing of the lower 45 MHz of the 5.9 GHz band for unlicensed Wi-Fi operations.

Other witnesses are CommScope Senior Director-Business Development Mark Gibson, Aalborg University Visiting Researcher Roslyn Layton and CTIA General Counsel Tom Power.