Wireless Spectrum Auctions

WILLIAMSBURG, Va. -- Quickly restoring FCC spectrum auction authority is critical with the World Radiocommunication Conference approaching in late fall, said government officials at the FCBA annual seminar Friday and Saturday. FCBA members heard from FCC commissioners and NTIA officials on a variety of other issues, including possible "Buy America" waivers for the broadband equity, access and deployment (BEAD) program.

Congressional telecom policy leaders said in interviews last week there still isn’t consensus for passing legislation from Sen. Mike Rounds, R-S.D., to temporarily restore the FCC’s spectrum auction authority through Sept. 30 (S-650), despite recent indications from House Commerce Committee Chair Cathy McMorris Rodgers, R-Wash., that she was reconsidering her earlier opposition to the proposal (see 2304210069). The FCC’s remit lapsed March 9 after Rounds objected to approving a House-passed bill to reauthorize it through May 19 (HR-1108) by unanimous consent and chamber leaders refused his counterbid to swiftly advance S-650 (see 2303090074).

T-Mobile CEO Mike Sievert shot down a question during the company’s analyst call Thursday (see 2304270079) on whether Dish Network will soon be in a position where it has to sell its spectrum to the highest bidder.

Based on history, the FCC is within its legal rights to award T-Mobile the licenses it won in the 2.5 GHz auction (see 2304060062), the company says in a new filing in the FCC’s universal licensing system. “Four former General Counsels of the Commission recently wrote to explain why they believe that the Commission continues to have authority to grant spectrum licenses notwithstanding the expiration of its power to conduct auctions,” T-Mobile said: “Their conclusion is supported by the actions the Commission and the Office of General Counsel took when the Commission’s authority to conduct lotteries to select from among mutually exclusive applicants expired as the result of an act of Congress.” T-Mobile cites the example of the Balanced Budget Act of 1997, which required the FCC to use competitive bidding and ended its ability to use a lottery system for awarding most spectrum licenses. “Then, the Commission confronted materially the same situation it faces today: did it have the authority to award licenses to applicants that had been selected via a lottery prior to the expiration of the lottery statute,” the carrier said. At the time, “the Commission held that it had the authority to continue to process the pending applications of successful lottery winners and conduct the necessary public interest review under section 309(a) of the Communications Act,” T-Mobile said Tuesday. Similarly now, the commission has “authority under section 309(a) to process the applications of T-Mobile, a successful bidder in the 2.5 GHz auction, even though that auction authority has now expired,” it said. The Wireless Bureau said “despite the sunset of lottery authority, the applications for already-conducted lotteries could still be processed.” T-Mobile also cited language in the 2003 Ranger Cellular case before the U.S. Court of Appeals for the D.C. Circuit, which challenged awarding of licenses from the lottery system (see 0307030034). The D.C. circuit “noted the Commission’s conclusion ‘that, although the Balanced Budget Act barred it from conducting new lotteries after July 1, 1997, the Act did not bar the FCC from processing [a company’s] application by using the results of a lottery that had taken place prior to that date,” T-Mobile said.

The White House National Security Council led a 6G summit Friday at the National Science Foundation’s Alexandria, Virginia, headquarters aimed at ensuring the U.S. leads the coming wireless technology’s standards research development and deployment. Officials in part cited a need to prevent China from gaining a foothold on the emerging technology like it has on 5G. FCC Chairwoman Jessica Rosenworcel pushed during the summit for restoring the FCC’s spectrum auction authority as one means of cementing the U.S.' 6G role.

The FCC approved 4-0 Thursday “high-level principles” for spectrum management, focused on receivers. Industry observers say the effects could be limited (see 2304050046). Commissioners at the open meeting also approved a Further NPRM looking at more requirements for wireless emergency alerts, as expected (see 2304190027), which has proven more controversial.

CTIA, NTCA and eight other groups urged the leaders of the Senate and House Armed Services and Commerce committees Thursday “to restore FCC auction authority to safeguard our national security and promote our economic security with clear planning for future commercial spectrum opportunities.” The FCC’s mandate expired in March amid a Senate impasse on two competing bills to extend the remit that turned on related negotiations on a larger spectrum legislative package that Sen. Mike Rounds, R-S.D., feared would result in a deal that would repurpose parts of the 3.1-3.45 GHz band for commercial use before DOD finishes a study of its systems on the frequency (see 2303090074). FCC Chairwoman Jessica Rosenworcel and other commissioners similarly encouraged Congress Wednesday to bring back the commission’s mandate (see 2304190069). “Congress has acted decisively to promote our national security and unlock domestic innovation with the CHIPS Act and similar efforts to promote U.S. and trusted allies in the wireless equipment market,” the groups said in a letter to Senate Commerce Chair Maria Cantwell, D-Wash.; Senate Armed Services Chairman Jack Reed, D-R.I.; House Commerce Chair Cathy McMorris Rodgers, R-Wash.; House Armed Services Chairman Mike Rogers, R-Ala.; and the panels’ ranking members. “A similar bipartisan effort is needed now to address spectrum policy, because we are at risk that key 5G innovations will be pushed overseas, particularly to China, if we do not recommit to a spectrum policy that ensures that both government and commercial interests have sufficient access to key spectrum bands.” China “is poised to have over 400 percent more 5G spectrum than the United States available for commercial use by 2027, and is working now to drive other nations to make available the same bands that are already available in China,” the groups said: Reauthorization will “safeguard our national security and promote our economic security with clear planning for future commercial spectrum opportunities.”

FCC Chairwoman Jessica Rosenworcel and the other three commissioners appealed directly to the leaders of the House and Senate Commerce committees to “restore” the commission’s lapsed spectrum auction authority. The FCC’s mandate expired in March amid a Senate impasse on two competing bills to extend the remit that turned on related negotiations on a larger spectrum legislative package that Sen. Mike Rounds, R-S.D., feared would result in a deal that would repurpose parts of the 3.1-3.45 GHz band for commercial use before DOD finishes a study of its systems on the frequency (see 2303090074). “Restoring this authority will provide the United States with the strongest foundation to compete in a global economy, counter Chinese technology leadership ambitions, and safeguard our national security,” Rosenworcel and the other commissioners said in a letter released Wednesday to Senate Commerce Chair Maria Cantwell, D-Wash., House Commerce Chair Cathy McMorris Rodgers, R-Wash., and their ranking members. The U.S. “cannot afford to wait. The global community will soon convene for another World Radiocommunication Conference,” Nov. 20-Dec. 15 in Dubai, “to determine the future of spectrum policy, and we must send a strong signal in advance of that meeting of our continued commitment to lead in coming generations of wireless technologies.” In previous years, Congress has always acted to extend the Commission’s auction authority without interruption,” the commissioners said. They said they need the authority so "we can once again use this authority in service of consumers, businesses, and national security.”

Rep. Ben Cline, R-Va., criticized the FCC Tuesday for not issuing T-Mobile licenses it bought in the 2022 2.5 GHz sale once the commission’s spectrum auction authority lapsed in March (see 2303220077). The FCC is effectively “a bottleneck” to U.S. work to continue to make spectrum available for wireless efforts,” which has become a national security issue due to competition with China to lead on 5G, Cline said during a House Appropriations Commerce, Justice and Science Subcommittee hearing on the Commerce Department’s FY 2024 budget request. Commerce Secretary Gina Raimondo sidestepped the issue, saying she wasn’t “going to speak to what the FCC is doing or not doing.” It’s “very important to have spectrum available to advance innovation” and NTIA is working “hand in glove” with DOD “to make sure” it “has what it needs to advance its” priorities, she said. The FCC’s mandate expired in a Senate impasse on two competing bills to extend the remit that turned on related negotiations on a larger spectrum legislative package that Sen. Mike Rounds, R-S.D., feared would result in a deal to repurpose parts of the 3.1-3.45 GHz band for commercial use before DOD finishes a study of its systems on the frequency (see 2303090074). “National defense also depends on America out-innovating our competitors and we need spectrum in order to move forward” on important commercial priorities, Raimondo said. The FCC didn't immediately comment.

As NTIA tries to craft a national spectrum strategy, advocates are far apart on whether exclusive licenses for spectrum or reuse and sharing should be the primary focus, per comments submitted this week (docket 2023-0003). It continued to get pushes for repurposing bands including 3.1-3.45 GHz (see 2304170009).