Tight Congressional Schedule Could Delay Hill Action on Broadband Plan

FCC Chairman Julius Genachowski is likely to press forward on a 700 MHz D-block auction regardless of whether Congress acts in a timely manner to approve legislation that would pay for the startup costs of a nationwide interoperable network. The D-block auction and public safety funding are largely decoupled in the plan, an FCC official said. The former is on a list of steps the commission can do on its own and the latter is on a list of items recommended for congressional action.

The D-block auction has already been scored by the Congressional Budget Office as part of the budget baseline. So it can’t be used to offset the costs of a public safety network. Reallocating the D-block to public safety would have a net negative effect on the budget. The FCC has estimated that building out an interoperable network for public safety would cost between $12 billion and $16 billion. Operating costs would be offset by a recurring fee on broadband subscriber bills, similar to the E-911 surcharge. “If there’s anything that would get bipartisan support on the Hill, it’s helping first responders,” said an FCC official. “Historically, that’s always been the case."

It’s too early to predict how quickly Congress can pass broadband legislation, and it depends how much support there is for specific legislation, Hill officials said. It’s possible Congress will return for a lame duck session in late November or early December, but legislators may want to start with a clean slate in the 112th Congress, said a Senate staffer. If Congress hopes to secure appropriations for fiscal year 2011 starting Oct. 1, it will have to authorize funding by Sept. 30.

Senators are waiting for the April 14 Commerce Committee hearing on the plan, said a Senate staffer. Afterward, depending on what comes out of it, certain senators will probably start moving forward on parts of the plan or areas they feel are lacking, the staffer said. The House Communications Subcommittee had a hearing before Easter recess, and Commerce Committee Chairman Henry Waxman, D-Calif., said he hopes to hold a series of follow-up hearings drilling down on specific recommendations in the plan.

It’s hard to imagine quick Hill action on many items in the broadband plan, said Tom Wacker, government affairs vice president of the National Telecommunications Cooperative Association. Broadband is on the back burner for most of Congress, and House Subcommittee Chairman Rick Boucher, D-Va., seems to be the only member interested in acting soon, he said. In an election year, it’s usually tough to tackle issues that are controversial and not deemed high priorities, Wacker said. Boucher faces a tough election in November, analyst Jeff Silva of Medley Global Advisors said. The Democrat voted against health care legislation, which may indicate he’s approaching every bill very carefully, the analyst said.

Expect a “ton of hearings” on specific issues in the plan, but appropriations and the upcoming elections will make it tougher for Hill action on any of the plan’s recommendations this year, said a telecom industry official. Republicans may be less interested to work on legislation because many appear to believe they have a shot at taking control of Congress and would rather enact legislation when they're in charge, the official added. Even if Congress comes back after the elections for a lame-duck session, getting bipartisan support will be tough if the Republicans have added more seats, agreed Jot Carpenter, CTIA government affairs vice president.

Action this year seems unlikely since the summer is usually a slow period and in the fall legislators’ focus will be the elections, said another telecom industry official. Boucher has stated he wants to do a telecom law rewrite next year, and it’s possible broadband plan recommendations could be included in that package, the official said. The Hill seems to be seriously interested in public safety legislation, said a telecom industry official. At the House Communications Subcommittee hearing, Waxman said he directed aides to start drafting public safety legislation, and Boucher said legislation would authorize the FCC to use proceedings from a D-Block auction to fund the national network.

While passing a bill authorizing a D-Block auction is doable, it may be tough politically to answer the FCC’s request for an additional $12 billion-$16 billion for the network from the U.S. Treasury through appropriations, industry officials said. President Barack Obama’s 2011 budget didn’t provide money for a public safety network, so legislators would have to find the money somewhere else, said Carpenter. Disagreement on the part of public safety with the FCC’s recommendations (CD March 22 p1) could make passing legislation even tougher, he added.

"There are very few legislative days left in this Congress,” an FCC official said. “Congress will be focused primarily on passing appropriations measures and other meat and potatoes business of government. Couple that with new calls for fiscal discipline and mix in election year politics and it severely decreases the likelihood of any comprehensive public safety legislation passing this year."

"I think the FCC calling for a $10 billion subsidy is a very heavy ask in this budget environment,” said an industry lobbyist and former Senate staffer. “The deficit is the largest versus our [gross domestic product] in history … looking for huge dollar figures is difficult."

"The problem is we don’t know yet exactly how the legislation is going to be drafted,” said Chairman Harlin McEwen of the Public Safety Spectrum Trust. “Both Boucher and Waxman have said they're working with the FCC to draft legislation, but they haven’t talked to me yet or anyone I know in public safety.” Public safety needs two things -- access to spectrum and funding, he said. “Without either of those, there is a high likelihood that we can’t be successful."

"I can’t predict nor read where the Hill is,” said Brian Fontes, president of the National Emergency Number Association. “I'm sure the FCC has been discussing this with the Hill. I would hope that even in an election year” it has a chance. “The need for public safety to have broadband capability is well recognized."

The current budget deficit will make it tough to secure appropriations for any broadband item this year, said Silva. But Wacker said money for public safety could be approved. Legislators usually are more open to funding for public safety, and $12 billion to $16 billion is small request relative to the overall budget, he said.

Boucher’s USF bill may be doable, said Silva, because a discussion draft last fall was thoroughly vetted with stakeholders. Then again, Congress may end up shying from that issue in an election year because with any USF revamp, “someone’s gain could be someone else’s loss,” Silva said. Boucher’s bill could move through the House, but the Senate doesn’t seem to have much of an appetite for USF reform, said a telecom industry lobbyist. At minimum, USF legislation will likely be a subject of in-depth House committee hearings as early as this May, said a telecom industry official.

It may be possible to pass bicameral “Dig Once” bills by Rep. Anna Eshoo, D-Calif., and Sen. Amy Klobuchar, D-Minn., that were cited in the plan, Carpenter said. The bills, S-1266 and HR-2428, would require states to install broadband conduits in certain highway construction projects. No one objects to the bills, Carpenter said.