Cantwell, Van Hollen Eye Temporary Return of FCC Spectrum Auction Authority Via CR

Doubters noted the lack of FCC mandate language in the CR version (HR-5525) House Republicans proposed Sunday that would extend federal appropriations through the end of October (see 2309180062). That CR faces extremely long odds of making it through the Senate and its chances of passing the House were still in doubt Tuesday amid a revolt by some members of the GOP caucus. House leadership pulled a procedural vote previously set for that afternoon that would have set rules for floor debate on HR-5525, and lawmakers eyed potential changes to the measure.

“We’re all having conversations” about temporarily bringing back the FCC’s remit, but it will depend on where talks on a broader spectrum package stand by month’s end, said Senate Commerce Committee Chair Maria Cantwell, D-Wash., in an interview. Senate Appropriations Financial Services Chairman Chris Van Hollen, D-Md., told us he’s also “pushing for” a temporary reauthorization as part of a CR but emphasized “it’s hard to handicap” the chances for any provision to make it into such a high-profile measure “these days.”

“Congress should have reauthorized” the mandate “a year ago,” said Senate Communications Subcommittee Chairman Ben Ray Lujan, D-N.M. “I appreciate the progress that’s been made” in talks on a broader spectrum bill, but “it’s important that the U.S. move forward and have a current program so” there can be resolution to “issues that are sitting before the FCC” like the 2.5 GHz licenses the commission feels it can’t issue to T-Mobile while the lapse continues (see 2309050060). “It’s one of many issues that could be” addressed in a CR and “I suspect would be on a lot of people’s lists of things that ought to be included,” said Senate Minority Whip and Communications ranking member John Thune, R-S.D.

DOD Report Prospects

Sen. Mike Rounds, R-S.D., whose push to give DOD time to complete a study on repurposing the 3.1-3.45 GHz band doomed a March bid to temporarily renew the FCC’s mandate (see 2303090074), said he hasn’t heard any serious push to restore the authority now even though the Pentagon is moving closer to releasing its recommendations. The House Commerce Committee-approved Spectrum Auction Reauthorization Act (HR-3565) and similar language congressional leaders attempted to attach to the FY23 appropriations omnibus package (see 2212200077) propose selling major parts of the lower 3 GHz band.

“I’m not sure they want” to bring back the FCC’s remit if they can’t also pursue an auction of the lower 3 GHz band on terms favorable to the wireless sector, Rounds told us. DOD officials are unlikely to brief Defense Secretary Lloyd Austin on the recommendations until the first week of October, but “what I’ve heard through my staff is that” the report won’t be “conducive to what the telecom industry wanted and that it’s going to be extremely challenging to share” the lower 3 GHz band. “The costs will be extremely high and it will not be in all parts of the country,” he said.

The FCC has “been without spectrum authority for more than six months now,” so “we’ve got to get an agreement to do something” to restore it as soon as possible, said House Communications Chairman Bob Latta, R-Ohio. “I don’t know whether” a CR “will be the mechanism” for accomplishing that, but he prefers whatever legislative vehicle will restore it “the sooner the better.” There’s “always talk about” attaching matters like an FCC mandate restoration to a CR, “but the less we say about it, the better chance we have” of accomplishing something, said ranking member Doris Matsui, D-Calif.

“Most of us want a bigger deal” on spectrum legislation mirroring HR-3565, “but that’s not in the offing right now,” Matsui told us. “We need to be getting as much as we can right now” even if it doesn’t encompass the broad range of spectrum issues lawmakers originally envisioned. “We’re going to take any opportunity we can, but it has to be something” that has a strong chance of getting majority support, she said.

Appropriations Interest

Restoring the FCC’s authority, even temporarily, “should be a high priority” as Congress navigates the federal funding process, Van Hollen told us after the Appropriations Financial Services hearing: “The best way to address it is to include it in one of these bills that’s moving right now.” There’s “broad agreement that we need to resolve this issue, because it’s hurting the country every day,” he said. Van Hollen emphasized that point during the hearing, saying he talked to Cantwell about their mutual concerns earlier Tuesday and agreed “we need to get this done in the coming weeks.”

Sen. John Kennedy, R-La., told us he's “looking at” the possibility of attaching a temporary FCC reauthorization to a CR but also wants to “sit down” with other lawmakers, the FCC, NTIA, DOD and the Department of Transportation “and see if we can resolve” what’s become a “turf battle … between three agencies” over jurisdictional authority on spectrum policymaking. “I’m not sure we can pass a permanent reauthorization of the FCC’s authority to grant these licenses … if DOD and DOT are going to lobby against it,” he said. Kennedy first called for the meeting during the Tuesday hearing, drawing Van Hollen’s support.

FCC Chairwoman Jessica Rosenworcel told Van Hollen and other Appropriations Financial Services members the ultimate goal needs to be restoring the FCC’s remit on a multiyear basis, but she wouldn’t object to congressional action on Kennedy’s 5G Spectrum Authority Licensing Enforcement Act (S-2787). That measure would temporarily give the commission clear authority to issue T-Mobile and other winning bidders waylaid 2.5 GHz licenses (see 2309140051). The situation 2.5 GHz purchasers are in “is unfair” and they “deserve” to take possession of the licenses, but the FCC feels there’s a “straightforward” prohibition on moving forward with those transfers while the authority remains lapsed, she told Kennedy.

Pfluger said during the Punchbowl event he believes HR-3565 remains “the right approach” to enacting a swath of spectrum priorities. He’s hoping Congress can pass the measure “before the end of December” but suggested it’s “probably not” going to be able to address it “before the end of the fiscal year.” HR-3565 will allow “spectrum to be auctioned until 2026,” which “is a great step in the right direction,” Pfluger said. CTIA President Meredith Baker during that event also pressed for HR-3565’s passage, saying “we are stymied” by the FCC authority’s expiration.

“We have to sit down with our stakeholders,” including DOD and the wireless industry “and come up with a plan to compete with China because right now I think they're outperforming us.” Pfluger said. “There's a lot of usage of the spectrum in all the bands” DOD currently occupies,” but “it's not all the time and it's not everywhere.” DOD rightfully “protects what they have, but “there must be a less parochial approach to this,” he said: What “I would like to see in” the DOD report is “a realistic view” because "I think there's a lack of trust right now, on what they need, and why they need it.” DOD leaders know “they're going to have to come to the table and work with the commercial side in order to come up with the solutions,” Pfluger said.