Less Interagency Spectrum Policy Dysfunction Likely No Matter Next President

FCC Chairman Ajit Pai will likely continue pursuing at least one major spectrum policy initiative after the election, regardless of its outcome. He’s expected to announce Tuesday that commissioners will vote at their Nov. 18 meeting on an order reallocating the 5.9 GHz band, which the Department of Transportation opposed (see 2010190040). DOT is the latest to line up against the FCC: DOD, NOAA, the Education Department and other agencies were also unhappy with various decisions. The FCC mindset was reflected in Pai's comments last month that no matter the band, some incumbent claims no one else can use it safely, and this FCC has been unique in its willingness to make tough decisions (see 2009150069).

“I think we’ll be obliged to” do more to address the contentious spectrum management apparatus in the next Congress, said Senate Commerce Chairman Roger Wicker, R-Miss. The Trump administration’s spectrum infighting first burst into public view during a 2019 committee FCC oversight hearing (see 1906120076). Congressional involvement in the fracas later expanded to matters like federal agencies’ objections to FCC approval of Ligado’s L-band plan (see 2010010022).

“I hope that once the dust settles and smoke clears” after the election, “we’ll be able to work together in a bipartisan way on some of these issues that are overdue to be addressed,” said Senate Communications Subcommittee Chairman John Thune, R-S.D. He’s interested in pursuing legislation to maintain the FCC’s role in regulating nonfederal spectrum use while improving its relationship with NTIA and other federal entities (see 2007230073).

“Collaboration is the name of the game,” said Senate Commerce ranking member Maria Cantwell, D-Wash. “What we need to do is get these agencies to realize they have to resolve these issues” instead of “having one mandate something and then have other agencies object and then have the legislative branch participate,” as happened in the spectrum policy feud. Getting that to happen will require changes in leadership at the FCC and other agencies, because “you can’t force it” through legislation, she said.

Senate Communications ranking member Brian Schatz, D-Hawaii, believes “we need a new FCC chairman” more willing to listen to the concerns of other federal agencies rather than legislation to mandate cooperation.

'Competing' Agendas

There will be no easy fix, regardless of what happens in November, experts said. The Commerce Spectrum Management Advisory Committee approved a report in July on potential changes to federal oversight of spectrum (see 2007300063), which didn’t reach conclusions but teed up a broader discussion of whether one agency alone should be in charge (see 2007280047). A working group was handicapped by the failure of the Trump administration to release its long-promised spectrum strategy (see 2006160055).

It’s “reasonable to expect we’d go back to a more coordinated,” unified government stance on spectrum issues if Democratic presidential nominee Joe Biden prevails over Trump, said MoffettNathanson’s Craig Moffett. “The most important issue” in 2021 is “going to be to clarify the future” of DOD’s September request for information on dynamic spectrum sharing of the 3.45-3.55 GHz band (see 2009210056) because it’s “so tangential to the tradition” of spectrum policymaking. GOP senators and conservative groups raised concerns that the RFI could be a 5G nationalization vehicle (see 2010070045).

Even a second Trump administration “will see that issue resolved by Congress," because there has been no widespread support from Congress for “DOD, NTIA and the FCC to pursue competing spectrum agendas," Moffett said. "There’s insufficient support” among Republicans for any proposal that smacks of nationalization. The U.S. “now seems to be well underway” in its bid to “catch up” to other countries in reallocating spectrum for commercial 5G use, and the “current confusion” about the 3.45-3.55 GHz band “throws a wrench into everything,” he said.

“The process worked during” former President Barack Obama’s administration because it “put a lot of work at the highest level to find a way forward on spectrum policy that respected both the FCC's role as decision-maker and the legitimate interests of federal agencies,” said Public Knowledge Senior Vice President Harold Feld. “After four years, there is absolutely zero trust in the process.” Making repairs “means investing time to rebuild that trust,” he said: “The next administration needs to invest real effort in [this], from the president himself to the political appointees.”

The Obama administration deserves “credit for having its leaders all on the same page” on spectrum policy, said Aalborg University visiting researcher and American Enterprise Institute visiting scholar Roslyn Layton. “It was like clockwork precision.” She believes a Biden administration is likely to still face trouble convincing DOD to part with full control over some of its spectrum allocation: “You don’t change very much at the Pentagon” simply by bringing in a new defense secretary.

Fights will continue regardless of who the next president is, said Cooley’s Robert McDowell, a former FCC commissioner. "The stewards of federal spectrum and the FCC ... have different missions,” he said: “The rivalry entered a new phase with the fight over 24 GHz,” the first of the major interagency conflicts (see 1907160067).

“Federal agencies are charged with keeping and using their spectrum, while the FCC has a mandate to manage private sector and public safety spectrum,” McDowell said: “The FCC must also carry out periodic legislation from Congress to repurpose and auction more spectrum ... that mission often pits the FCC against federal spectrum licensees, causing them to fear losing" more spectrum, "so they dig in.”

The process suffered from the lack of a permanent NTIA administrator for more than a year, said Free State Foundation Policy Studies Director Seth Cooper. NTIA needs a chief whose decisions are backed by the president and Commerce Department, he said. “Disagreement doesn't mean there necessarily is a problem with the structure of the interagency process." It "may mean that NTIA -- or the president, if NTIA doesn't do the job -- needs to develop a unified administration position and enforce it through the executive branch," Cooper said.

Weighing Fixes

“You’d see a far greater convergence” under a Biden administration between the FCC and other federal agencies on spectrum sharing “as being the preferred way forward” for the 3 GHz band and others, said New America’s Open Technology Institute Wireless Future Program Director Michael Calabrese. The primary reason there has been so much “tension" on spectrum is that the Trump administration “has no coherent spectrum policy.” A return to the Obama administration’s spectrum policies would mean “not only would those tensions largely go away, but there’d be an opportunity for a very constructive convergence between the administration and FCC,” he said.

No incumbent “wants to face an increased risk of harmful interference, nor do they want to invest their own resources to mitigate potential interference,” said R Street Institute Technology and Innovation Policy Fellow Jeffrey Westling: “This includes federal users.” Ideally, disputes should be resolved through NTIA's Interdepartment Radio Advisory Committee, he said. “As no entity wants to lessen their legal rights to operate, some of these fights have spilled out into the public,” he said.

Capitol Hill will likely want to watch to see if the relationship between the FCC and other agencies “gets better on its own” in either a Biden or Trump administration, said Covington & Burling’s Gerry Waldron, a former House Communications Subcommittee senior counsel: “If the system corrects itself on its own,” the scuffle was purely a “personnel problem” rather than “an institutional problem” that could require legislation to correct.

Congress would likely need to legislate only “if a new administration and the FCC didn’t adopt many of those measures on their own,” including updating the existing memorandum of understanding between the FCC and NTIA, Calabrese said. "There’d be a really strong chance a new administration and FCC chairman would want to get out ahead of” legislation “and show Congress that they’ve gotten their act together.”

Congress could “take some more broad steps to reform the spectrum management regime,” including creating a new agency in charge of everything, Westling said. Improving collaboration between the FCC and NTIA could also help, he said. “One solution could simply be to have additional technical resources, perhaps independent of the FCC or NTIA, which can help investigate the specific technical details of a dispute or proposal, as often these disputes include differing perspectives on the engineering,” he said.

Congress should consider updating the Communications Act as a solution to the infighting, said Information Technology and Innovation Foundation Director-Broadband and Spectrum Policy Doug Brake. “Friction with other agencies is an inevitable cost of getting things done in spectrum policy, but certainly governance structures could be improved."

“More than 90% of the FCC’s” spectrum decisions, even during the Trump administration, have been bipartisan or unanimous, so “in some respects, I don’t expect a major shift” on most spectrum policies under either a Biden or Trump administration, Layton said. The Trump administration carried over many of the fundamental spectrum policies from Obama, and a Biden administration would likely “have the same focus, the same vigor, the same robustness” on those matters. She’s concerned a Biden administration may face pressure to place too much focus on spectrum sharing at the expense of generating revenue via auctions.

Bipartisanship remains “overwhelmingly” the status quo in Capitol Hill spectrum policymaking, notwithstanding outliers like the 5.9 GHz dispute, Waldron said. “I don’t expect any dramatic, profound changes” in lawmakers’ “desire to make spectrum available” for 5G and unlicensed use, though there will of course be “some differences in priorities and outcomes” within that framework. The “amount of concern” about whether the U.S. can beat China to be the global leader in 5G development will remain a “motivator” for lawmakers to reach a consensus on spectrum matters, he said.