Senators Eye Replicating Spectrum Deal in 2023 Amid 3.1-3.45 GHz Text Fracas
Senate Commerce Committee leaders who spearheaded a stymied bid to attach the Spectrum Auction Reauthorization Act (see 2212190069) to the FY 2023 appropriations omnibus bill (HR-2617) are divided on whether they will be able to advance the proposal largely in its current form in the next Congress. The reauth package included modified language from the chamber's version of the Spectrum Innovation Act (S-4117) and other related measures. President Joe Biden signed off Friday night on a continuing resolution that extends the FCC's spectrum auction authority through Dec. 30 (HR-4373) to allow further time for HR-2617's enrolled version to make it to his desk. Congress included language in the omnibus that renews the FCC's remit through March 9, in lieu of the spectrum deal language. The March 9 deadline is spurring lawmakers’ interest in quickly reaching a new deal when talks reconvene at the start of the 118th Congress.
All lawmakers backing the spectrum deal we spoke with pointed to language modifying the Infrastructure Investment and Jobs Act’s framework for deciding how to repurpose spectrum on the 3.1-3.45 GHz band, which sank the proposal’s attachment to the omnibus, as the marquee issue they’ll need to grapple with when they return in January. Other parts of the deal, including proposed funding for the FCC's Secure and Trusted Communications Networks Reimbursement Program and other telecom priorities, are firmer but may depend on the outcome of the 3.1-3.45 GHz talks, lawmakers said.
“We thought we had DOD agreeing” with the 3.1-3.45 GHz language “and that we were in a place to get this done” as part of the omnibus, but because Sen. Mike Rounds, R-S.D., objected to the proposal “we’re in extra innings now,” said Senate Commerce Chair Maria Cantwell, D-Wash., in an interview last week before Congress adjourned for the holidays. “We’re going to have to take the extra days” afforded by the omnibus’ FCC authority renewal “and see what’s very close and see if we can finish that out. We had a lot of great conversations” already in the leadup to reaching the deal that Rounds rejected. Rounds said he would prefer to keep the existing band framework from IIJA in place and believes modifying it will unduly reduce DOD’s power to maintain its systems that use the frequency (see 2212200077).
“We had four-corners agreement between” House Commerce Committee Chairman Frank Pallone, D-N.J., ranking member Cathy McMorris Rodgers, R-Wash., Senate Commerce ranking member Roger Wicker, R-Miss., “and I, so that’s a hard task” itself, Cantwell told us. “We also spent the last week with people at various agencies, which is the larger problem” in resolving spectrum policy disputes. “We need more data, more information to get everyone comfortable that we’re going to do this the right way,” she said: It will be important to emphasize the need for the U.S. “to be the smartest about spectrum and really understand the issues” that Rounds and other DOD supporters “have and see if we can resolve” the dispute, she said.
Cantwell expects Rodgers and Pallone will continue to agree with the substance of the proposal next year even with the flip of House party control. “The idea would be to figure out how to get” a revised version of the proposal enacted by the March 9 expiration of FCC authority, but “who knows what will happen in the new year,” Cantwell said.
Cruz, Wicker Factors?
It’s unclear whether Sen. Ted Cruz of Texas, who will take over from Wicker in January as lead Senate Commerce Republican, will back the proposal in its entirety, Cantwell said: “He hasn’t been” present on Capitol Hill much in recent weeks, “so I haven’t had a chance to talk to him” about the spectrum language. Cruz’s office didn’t comment.
Cruz “is always read in” on spectrum policy issues, said S-4117 lead sponsor and Senate Communications Subcommittee Chairman Ben Ray Lujan, D-N.M. “He is a very astute and active member” of Senate Commerce, so “I expect he will want to get things done” in that policy area. “In this specific area, it’s been my experience” that “there’s much more agreement to get these compromises passed,” he told reporters: “I’m optimistic that in this particular space, that there will continue to be bipartisan agreement.”
“The agreement really is a compromise and it takes a lot of differing perspectives into consideration,” Lujan said. “I imagine that many of those elements will be included” in a revised package next year, “but then again I thought that everything had been agreed to” in December, “so I was surprised to see” the deal fall apart. The three-month extension of FCC authority “will require action” to happen “sooner rather than later, so this will get done soon,” he said.
Wicker doesn’t expect his spectrum package negotiation priorities to shift because of his impending move to be lead Senate Armed Services Committee Republican. “I like to look at things from a consumer and a national defense standpoint,” so that’s not going to change come January, he told us: “I’m going to have to sit down” after the holidays “and see where we are” given Rounds’ objections to the 3.1-3.45 GHz language and other factors, but “we don’t want to leave things hanging” too long. Wicker wouldn’t comment on whether it will be difficult to rewrite the proposal to satisfy Rounds because “that would be getting too far into the negotiations.”
“Let’s hope” a spectrum legislative package similar to what lawmakers agreed to this month can pass early in the next Congress, but “next year is another year,” said Senate Communications ranking member John Thune, R-S.D. Rounds “has strong views” on how the scuttled proposal altered DOD’s decision-making power for the 3.1-3.45 GHz band “and we’re definitely going to have to figure out a way to work this out with DOD requirements and priorities” while also opening up the band for commercial use, Thune told us: “It’s going to require a fine balance.”
‘Tricky’ Predictions
It's going to be “tricky” to predict the prospects for a new spectrum legislative proposal mirroring the one lawmakers reached earlier this month given the potential for “performative activity of the next Congress, particularly the House,” said New Street’s Blair Levin. "There is an opportunity to produce a bipartisan comprehensive spectrum reform package that will enable both public and private enterprises to have a clearer and improved road map for spectrum use in the decade ahead.”
Omitting the spectrum proposal from the omnibus was only a win for the largest national carriers, said New America’s Open Technology Institute Wireless Future Project Director Michael Calabrese. “The three big mobile carriers have all the spectrum they really need given the financial failure so far of their 5G business model, so they are quite willing to delay access to more spectrum for their many competitors and substitutes such as private 5G networks that rely on shared spectrum.”
Calabrese noted the scuttled proposal included provisions tasking NTIA with immediately studying and reporting on the feasibility of opening large portions of the “very underutilized” 4 and 7 GHz bands for a total of more than 1,700 MHz of mid-band spectrum. “Now that progress is derailed, as is the authorization and funding for” the “incumbent informing capability needed by NTIA,” which would have served as a “new federal spectrum sharing coordination mechanism,” he said.
“The failure of Congress to adopt legislation that continues the FCC’s auction authority and that establishes a multiyear pipeline for spectrum for commercial use not only reflects poorly on Congress but also jeopardizes the U.S. position as a leader in 5G,” said Free State Foundation President Randolph May: “There are plenty of contentious issues where it’s understandable that bipartisan, bicameral agreement is difficult to obtain. But ensuring the availability of adequate spectrum, including mid-band spectrum, with sufficient lead time to facilitate efficient and effective use should not be one of them.”