Senators Hope for September Spectrum Legislation Compromise

Communications sector officials and policy experts we spoke with believe a deal is more possible than it appeared before the Senate Communications hearing, but hurdles are still ahead in the process. Both chambers will have mere weeks once they return from recess to advance new spectrum legislation before the FCC’s existing auction authority expires Sept. 30. The Senate is to return Sept. 6, and the House Sept. 13. The Senate began its recess Sunday after passing (see 2208080062) the Inflation Reduction Act reconciliation package as a substitute amendment to the earlier scuttled Build Back Better Act (HR-5376).

Cantwell told reporters she needs to determine if there’s “enough common ground” among Commerce members to seek an even shorter-term authority renewal to be a temporary stopgap while talks on a bigger legislative package continue. She later told us she believes much of that negotiation can happen before the Senate returns. Cantwell mentioned an extension through “the end of the year” or up to “six months” as a possibility. It’s one of several issues Senate Commerce ranking member Roger Wicker, R-Miss., “and I will have to talk about” in deciding “what might be a good strategy going forward” on legislation, Cantwell said.

“Predictability gets more economic investment the way you want it,” so “a longer period of time is beneficial,” Cantwell said. She wanted Senate Communications’ Aug. 2 hearing to focus on high-level issues, because “the challenges we have today are just going to be multiplied” in the future. “One can say that would argue for a longer” renewal period, but “I think we have to take into consideration where some of our House members are and talk to people” during the recess, Cantwell said.

“There’s interest from” Cantwell, Wicker and Communications ranking member John Thune, R-S.D., in finding a middle ground, “so that’s the making of something promising,” said Communications Chairman Ben Ray Lujan, D-N.M. “The question is, can everyone come together to author” a compromise bill “now that the House has passed” HR-7624 (see 2207280052). Lujan told us he hasn’t spoken with House Communications Subcommittee Chairman Mike Doyle, D-Pa., about Doyle’s concerns about the Senate potentially diverging from the deal worked out on HR-7624 (see 208010030).

“The next step would be to take the contents” of the Aug. 2 hearing, “plus the work that’s already been done” in the House and see if a deal can be made on an extension length and other matters lawmakers would like to address in a comprehensive bill, including setting up a pipeline for future FCC spectrum auctions, Lujan said: “I hope folks will do that, because” the hearing “showed there’s a lot of interest” in a compromise. CTIA President Meredith Baker, who in testimony backed an 18-month extension, told Lujan near the end of the hearing she would support a longer timeline if parties committed to quickly setting up a pipeline.

GOP 'Sweet Spot'

“I think there’s a compromise out there and I’ve talked to” Lujan about that already, Thune said in an interview. “I’m hoping we can find a sweet spot and negotiate something that can actually get done, because Lord knows we need to extend the authority and build the pipeline.” It “would be nice if it’s something that’s ready and teed up to go” when the Senate returns “so we could just figure out a way to fast-track it on some vehicle, but we have to get everything” negotiated to make that happen, he said.

“There’s certainly a deal to be made” on a spectrum package, but talks will need to continue during the recess to flesh that out, Wicker told us: Cantwell “is trying to get” a 10-year renewal, but “that’s way too long.”

Thune acknowledged lawmakers would need to look at repealing language from the Infrastructure Investment and Jobs Act that gave DOD more power to identify how much of the 3.1-3.45 GHz band the federal government makes available for commercial 5G use and subsequent auction. The law empowers DOD to identify available frequencies in the band along with the Commerce Department and White House Office of Science and Technology Policy. HR-7624 and a previous version of the bill (HR-5378/S-4117) would repeal that IIJA language and instead give NTIA authority to identify how much of the band to use, in consultation with DOD, the FCC and OSTP.

“Any law can be changed,” Thune told reporters after the Aug. 2 hearing. “We do it all the time,” though “obviously there would have to be support for doing that,” including from Senate Armed Services Committee members. DOD raised concerns about the language just before House floor consideration of HR-7624, lobbyists said. DOD “has a big stake, as we all do” in “making sure that spectrum is allocated wisely and doesn’t in any way compromise national security, but I just think there are better ways that these agencies can work together.”

Thune is continuing to press Senate Commerce to advance the Improving Spectrum Coordination Act (S-1472), which would require the FCC and NTIA to regularly update their memorandum of understanding, including to add language on a process for addressing interagency policy differences and instituting a resolution process. Wicker pulled S-1472 from a May Senate Commerce markup (see 2205250063) amid an amendment dispute with Sen. Deb Fischer, R-Neb. “I don’t” know that the measure is any closer to getting a Senate Commerce markup, but “it’s important that we be doing everything we can to get that sort of coordination, because there’s a finite amount of spectrum out there,” so “ensuring that NTIA, the FCC and other government agencies are working together to make sure it’s being used in the most efficient way possible has got to be a top priority,” Thune told reporters.

Compromise 'Price'

“The closer we get” to the Sept. 30 deadline, “the higher the price will be for what is increasingly being viewed as ‘must-pass’ legislation to extend” the FCC’s auction authority, said Cooley’s Robert McDowell, a former commissioner. “The main question is what concessions will be extracted to satisfy all sides? Given the lack of fiscal discipline in Congress, odds are the ‘quid’ for auction authority extension will include a big ‘quo’ in spending for a variety of interests.” It "would be an unnecessary and unforced error on Congress’s part to let the FCC’s auction authority lapse," he told us.

New America Open Technology Institute Wireless Future Program Director Michael Calabrese would welcome a deal that goes past an 18-month extension. That “would be nothing but an agreement to kick the can down the road” that’s “clearly intended to just delay” work on a more comprehensive spectrum package in the hope that Republicans will win back control of the House in the November elections, Calabrese told us. “The best policy is to combine a requirement for them to study and report back” to Congress within a set amount of time “on what can be auctioned or made available or unlicensed sharing” and then allocate “enough time to actually move forward with those plans.”

There’s “no magic formula” for an optimal longer-term compromise extension, but it should be “long enough that the FCC and NTIA can actually plan a portfolio of bands that make both additional licensed and unlicensed spectrum” available, Calabrese said: It should give the agencies a “strong nudge to do the work and report back” to Congress expeditiously. A five-year extension could be “long enough to require the FCC and NTIA to work together” to identify available bands and “then the committees could take further action” within two or three years afterward, he said.

Senate Commerce leaders can easily complete work on a compromise bill before Labor Day by cobbling together language that “already exists” in current legislation, including HR-7624, Calabrese said. He cited the 2020 Spectrum Management and Reallocation for Taxpayers Act, an unsuccessful attempt by Cantwell and other lawmakers to designate the proceeds from the since-completed C-band auction for rural broadband and next-generation 911 tech upgrades (see 2001280063). Several lobbyists and other officials also cited a draft spectrum pipeline bill Thune and Sen. Ed Markey, D-Mass., floated last year but didn’t introduce after IIJA gained momentum.