Cantwell, Wicker Draft Spectrum Bill Proposals, as Lame-Duck Session Begins

Senate Commerce Committee Chair Maria Cantwell, D-Wash., and ranking member Roger Wicker, R-Miss., are believed to be readying separate proposals for a larger spectrum legislative package as Congress returns this week from the long pre-election recess. The bills would grapple with how to address a renewal of the FCC’s auction authority before a short-term extension expires Dec. 16, among other things. CTIA Senior Vice President-Regulatory Affairs Scott Bergmann and others cited the FCC renewal as the priority lawmakers should focus on as they grapple with whether to move forward on the House-passed Spectrum Innovation Act (HR-7624) or another measure as a compromise vehicle, during a Monday R Street Institute event.

Cantwell’s proposal includes a more extensive spectrum pipeline and is more open to keeping the Infrastructure Investment and Jobs Act’s original 3.1-3.45 GHz auction framework than House Commerce Committee lawmakers envisioned in HR-7624, several lobbyists told us. The version of HR-7624 the House passed in July (see 2207280052) calls for identifying ways to use all 350 MHz on the band for either nonfederal use or shared use with federal incumbents, which got DOD criticism in the days leading up to its approval in the chamber. IIJA gave DOD more power to identify how much of the band the federal government makes available for commercial 5G.

Wicker’s proposal looks to “push the envelope” on commercial use of 3.1-3.45 GHz, said one telecom lobbyist. Some officials believe a likely compromise will end up close to how the Senate-side version of the Spectrum Innovation Act (S-4117) dealt with the 3.1-3.45 GHz band. S-4117 envisions an FCC auction of at least 200 MHz on the frequency. Lead S-4117 sponsors Communications Subcommittee Chairman Ben Ray Lujan, D-N.M., and ranking member John Thune, R-S.D., previously expressed misgivings with HR-7624’s language (see 2208090001).

There are still “issues with the timing” of an FCC auction renewal “and what the pipeline looks like,” but “there’s an openness to an extension that’s longer than" the 18-month extension HR-7624 proposes, "and there’s an openness to a pipeline that looks beyond the lower 3 GHz” band, said Public Knowledge Government Affairs Director Greg Guice in an interview. “Everybody recognizes” the 2012 spectrum law that authorized FCC auctions through Sept. 30 was passed as part of an omnibus package that year and “the parties are keenly aware that the leadership is going to turn to” Cantwell and Wicker “in the near future and ask, ‘What have you got for us this time?’”

The U.S. needs to make “a great spectrum comeback” and “start getting going with the same pace and cadence” in making additional spectrum available for commercial wireless use as happened at the FCC in 2017-2019 under ex-Chairman Ajit Pai, Commissioner Brendan Carr said during the Monday R Street event. “We’re not refilling the spectrum pipeline” right now as quickly as happened during that period and continuing to lag behind is “going to be a problem” in the future. Congress should also “reaffirm the primacy of the FCC’s decision-making” on spectrum matters, he said.

The FCC’s auction authority “has never expired and there’s no reason that it should” now, Bergmann said. “We really have an acute need” to refill the spectrum pipeline, but “now’s the time when we need to be focusing on reupping the FCC’s auction authority” given the upcoming expiration deadline. “If we were in a perfect world,” then “incremental steps” like HR-7624’s 18-month renewal proposal wouldn’t be necessary, “but we’re definitely not in that perfect world,” said Information Technology and Innovation Foundation Broadband and Spectrum Policy Director Joe Kane.

A longer-term renewal like Cantwell seeks is “obviously a much better thing” for the FCC, but it would likely mean the Congressional Budget Office would issue a lower estimate for potential revenue from future auctions and lawmakers would have a lower “amount of money that you can put towards investing in various projects” like next-generation 911 tech upgrades, said The Brattle Group consultant Paroma Sanyal.