Legislative Clock Ticks Down Amid Shifts in Cantwell-Wicker Spectrum Package Talks

House Communications Subcommittee leaders are monitoring from afar Senate Commerce Committee negotiations on a potential compromise spectrum measure with an eye on the legislative clock as they question if a viable alternative to the existing Spectrum Innovation Act (HR-7624) is achievable amid the jam-packed lame-duck session. Fraught talks are underway aimed at reaching a deal on an FY 2023 appropriations omnibus package seen as a potential vehicle for passing spectrum legislation and allocating new funding for two bipartisan telecom priorities: the FCC’s Secure and Trusted Communications Networks Reimbursement Program and next-generation 911 tech upgrades. Hill leaders released a compromise version of the FY 2023 National Defense Authorization Act Tuesday without language authorizing funding for the telecom priorities (see 2212070056).

A continuing resolution to again extend federal appropriations past Dec. 16 looked increasingly likely Wednesday as omnibus talks remained stalled over disagreement on top line spending figures, lawmakers and lobbyists told us. Congressional leaders floated several new deadlines, including a one-week CR that would end Dec. 23 and a slightly longer extension that would mean revisiting appropriations in January as Republicans reclaim the House majority. Some lawmakers also floated the possibility of a CR extending through Sept. 30, 2023. Any of those scenarios could include a commensurate extension of the FCC’s auction authority, lobbyists said.

Senate Commerce Committee Chair Maria Cantwell, D-Wash., said Wednesday she’s “hopeful” she and panel ranking member Roger Wicker, R-Miss., can reach a deal on a spectrum package, but “there’s still a lot of discussion” about various aspects of the measure. “We have to see what the House and Senate can agree to, and then we can figure out about processes and procedures” for moving it as part of must-pass legislation, she said: “We’ve been trying to focus on closing something out,” but another short-term extension of the FCC’s auction authority “may be” necessary since just over a week remains until the current authorization expires. Most lawmakers realize “we’re probably going to be here a little while longer,” Cantwell said.

Wicker was more tight-lipped. “I’ve not given up,” but “I’m not going to negotiate in public,” he said: “I’d rather not get into the details of what’s been offered and counteroffered” in his talks with Cantwell, he said.

Negotiation Insights

Cantwell confirmed to us that she and Wicker are looking at a potential auction reauthorization period of three to five years. She has proposed a four- or five-year renewal in recent negotiations (see 2211300074), and Wicker has lengthened his reauthorization timeline to three years, lobbyists said. Cantwell, FCC Chairwoman Jessica Rosenworcel and others initially sought a 10-year extension, in contrast to HR-7624’s proposal for extending the commission’s remit through March 31, 2024 (see 2207260063). “We still think longer is better,” Cantwell said.

The Senate Commerce leaders still need to resolve how to structure language outlining a 3.1-3.45 GHz auction, including how much of the band Congress allocates exclusively for commercial 5G use and how much it reserves for shared use, lobbyists said. The use balance could affect whether carriers can operate at full power on that portion of the frequency, lobbyists said. Cantwell and Wicker are also continuing to haggle over how to deal with a spectrum pipeline, lobbyists said. “Everything else will fall into place” if Cantwell and Wicker can iron out a broad structure for the spectrum pipeline, said one lobbyist who follows Democratic deliberations.

“Members of Congress want the executive branch to play a larger role in settling” interagency disputes on spectrum, including interference claims, Cantwell said: “Making sure the processes we’ve already outlined for spectrum auctions and things of that nature” function within a new legislative framework is also important.”

Cantwell wants to do feasibility studies of whether and how to repurpose those bands and there hasn’t been an agreement on how much time it would take to complete that process, lobbyists said. She has also continued to press for the package to allocate some auction proceeds for more middle-mile broadband backbone funding, in line with her Grant to Rapidly Invest and Deploy Broadband Act (S-4763) to incentivize building the infrastructure along the existing U.S. electricity grid (see 2210130074), lobbyists said.

House Communications Vice Chair Doris Matsui, D-Calif., and other subpanel leaders told us they haven’t been involved in recent negotiations. “We haven’t engaged yet; we want to see what [Senate Commerce] can do,” Matsui said: “We would like to have something bigger and better” than the House passed in HR-7624, “but we didn’t think it was going to be achievable at that time. Something’s going to have to happen” with at least the FCC authority extension since its current mandate expires Dec. 16 in conjunction with the current appropriations CR (see 2209300058).

“If they’re going to do something” on spectrum legislation, “we need to know about it” and agree to it if it diverges from what was in HR-7624, said House Communications ranking member Bob Latta, R-Ohio. “We’re looking at less than two weeks left” before the chamber’s last scheduled day in session “and we don’t currently have any hearings scheduled in committee. Hopefully, they’ve been in communication with [House Commerce staff] but I haven’t seen anything cross my desk yet.” Spectrum stakeholders “need to have some certainty, so these short-term extensions” of the FCC’s authority “aren’t good,” he said: “In the lame duck, anything is possible,” but a deal is going to have to come together soon if lawmakers don’t want to punt the issue into the next Congress.

House Commerce Committee leaders and aides “are being kept in the loop” on the Cantwell-Wicker negotiations, but “they’re not actively involved,” a wireless lobbyist said. “They can’t really be negotiating against” what they included in HR-7624 because “they’re on record” with that approach, but “they’ll engage” once Senate Commerce leaders strike a deal. House Commerce leaders will likely “have to swallow whatever Cantwell and Wicker come up with,” the lobbyist said.

Funding Uncertainty

Nothing on NG-911 or rip and replace stopgap funding “has come together yet” due to the state of omnibus and NDAA talks, said Senate Communications Subcommittee ranking member John Thune, R-S.D. HR-7624 proposed allocating up to $10 billion in 3.1-3.45 GHz auction proceeds to NG-911 and up to the $3.08 billion in rip and replace funding needed to cover what the FCC estimates it will need to fully reimburse participants in that program (see 2207150067). Members of the Public Safety NG-911 Coalition voiced optimism about funding prospects in a November letter to congressional leaders.

“They’re still negotiating on top-line” appropriations spending figures “and how much is going to be allocated for defense versus nondefense,” said Thune, who’s also Senate minority whip. “The various potential riders that could go on any bill, whether it’s an omnibus or CR is still pretty much up in the air.” There “will be opportunities to add provisions” even on an all-year CR, but they would have to be things that have broad support,” he said.

The “live discussion” on spectrum legislation means it’s still premature to gauge whether either rip and replace or NG-911 funding makes it into either an appropriations omnibus or a CR, a wireless industry lobbyist said. All circulating spectrum proposals currently would provide the full $3.08 billion for rip and replace, but there’s still discussion about potentially including the funding in year-end legislation even if a spectrum deal fails to materialize, lobbyists said.

“I’m not sure if we’ll get it done by Dec. 16, but I am optimistic” there will be a deal to pass a longer-term auction authority extension and allocate the additional rip and replace money by year’s end, Competitive Carriers Association Senior Vice President-Legislative Affairs Tim Donovan told us. “All options are on the table” for getting those goals accomplished, including the possibility of funding rip and replace through appropriations, he said: “Not getting something done or a longer-term extension without any policy changes is very problematic, especially for the rip and replace applicants. ... The difference of funding being added in December versus next year” could mean “a massive difference in the success of” rip and replace.

A yearlong reauthorization “that doesn’t tee up feasibility studies of any future bands that could be targeted, that doesn’t create a spectrum pipeline” won’t “produce the revenues that you’d need to fund some of the priorities that different members of Congress have been pushing” to draw on future auction proceeds, Donovan said. It also wouldn’t “advance our spectrum policy at a time when mid-band spectrum is playing a huge role in closing the digital divide, especially for rural carriers. It’s really important that they continue to get access to enough of that to really be able to expand wireless connectivity.”

The Wireless ISP Association and more than 200 of its members in a Wednesday letter urged Cantwell and Wicker against backing “proposals that would restrict the use of spectrum to only the largest national mobile cellular carriers and leave millions of Americans behind.” Support legislation “that allows small and medium-sized businesses like ours to continue providing broadband to customers who would otherwise lack access,” the ISPs wrote. “We urge you to support an approach to spectrum use similar to the successful” citizens broadband radio service “spectrum sharing model used in the 3.55-3.7 GHz band for future spectrum bands, including 3.1-3.45 GHz.” The lawmakers should “reject calls by those asking for the entire band to be auctioned for use by only a few of the largest companies who have repeatedly turned a cold shoulder to Americans living in the nation’s most rural and hard-to-reach areas,” WISPA members said.