Former Republican Commissioners See No Easy Path Forward for Trump on Spectrum

Three former Republican FCC commissioners agreed Thursday that the Trump administration will likely focus on making more spectrum available for 5G and 6G, but conceded that the bands targeted by wireless carriers won’t be easy to address. Harold Furchtgott-Roth, director of the Hudson Institute's Center for the Economics of the Internet, joined Cooley’s Robert McDowell and Mike O’Rielly, now a consultant, during a Hudson forum.

The three agreed that addressing the lower and upper 12 GHz bands, which SpaceX has opposed, could be complicated given the prominent role in the new administration that's anticipated for CEO Elon Musk.

The Biden administration's national spectrum strategy wasn’t a strategy but a study, McDowell said. “You’re going to need senior West Wing of the White House leadership” to get anything done on spectrum. “The hope would be that the FCC gets spectrum auction authority restored, but that means working with Congress,” he said. “That also means having to mediate the conflicts” between federal users and the private sector “to come up with a spectrum pipeline.”

The next FCC chair will be “out there really hawking the need for more licensed spectrum,” which will mean a smaller footprint for federal users, O’Rielly said.

DOD is likely to aggressively defend its spectrum, Furchtgott-Roth said. It will “wave the national security flag, rightly or wrongly,” he said. “I’m not convinced that you’re going to see any DOD spectrum transferred in the next several years.”

In the late 2010s, the FCC allocated thousands of megahertz for commercial use, McDowell said. “We’re not going to see that again, maybe forever,” he predicted. President-elect Donald Trump has said he wants to bolster the military, he said. “You’ll have an empowered Department of Defense” with “friends on the Hill.”

“There will be nothing in the pipeline for the next few years,” Furchtgott-Roth predicted. No auction is likely for years even if the FCC gets auction authority. The top candidates for licensed use are the upper C-band and upper 12 GHz band, he added. “You’re going to see increasing values for licensed spectrum.”

O’Rielly said the next FCC will likely be “very aggressive” generally and probably different from the commission he served on during the first Trump administration. O’Reilly said he supported getting rid of two regulations for every one that was imposed. The ratio next year will be more like four or 10 to one, he predicted.

Musk may not win on everything, the former commissioners noted. “Does Elon get everything he wants at the FCC, or in government generally?” McDowell asked: “I don’t know the answer to that yet.”

O’Reilly said the FCC should allow mobile and fixed wireless use of the lower 12 GHz. “It’s probably a heavier lift now,” he said. Because Musk won’t want to give up control of his assets, his role will likely be limited to being an informal adviser to Trump, Furchtgott-Roth predicted.

“In theory,” Chairwoman Jessica Rosenworcel could defy pencils-down letters from Congress (see 2411080007), but it’s unclear she will, McDowell said.

Furchtgott-Roth noted pencils-down letters are a recent development and a lot of activity occurred during the final months of the Clinton administration, when he was on the commission, in 2000. The FCC approved AOL’s takeover of Time Warner days before George W. Bush was inaugurated (see 0101160003), he said. “It’s a matter of comity -- there’s no legal reason that the commission has to have pencils down.”

McDowell said Commissioner Brendan Carr seems the “odds on favorite” for chair, though the Trump team hasn’t focused on appointments at that level so far.

Said O’Rielly, “There’s always a chance for a wild card -- the last couple of days have proven that.”

They agreed that Rosenworcel could remain at the commission but said she will probably leave when Trump takes office. “She probably nicely steps away,” O’Rielly said.

The U.S. Supreme Court last month declined to hear Consumers' Research, et al. v. Consumer Product Safety Commission, which examined a president's power to fire independent regulatory agencies' commissioners at will (see 2407290027).