Upton, Walden Sign Off on House-Passed, Modified NDAA Spectrum Language

The amendments ruled in order and ultimately included in modified form included one from Reps. Mike Rogers, R-Ala., and Jim Cooper, D-Tenn., that would have updated “current law concerning the management of spectrum auctions and the protection of" GPS "adjacent frequency bands.” Armed Services Committee Chairman Mac Thornberry, R-Texas, introduced another that purported to assure “the management of spectrum auctions and national security equities.” Initial versions of both became public last week, and CTIA objected before the Rules Committee (see 1605180071).

“We were OK with what ultimately happened,” Commerce Committee Chairman Fred Upton, R-Mich., said in an interview Thursday. “We met with them.”

“It all worked out,” Communications Subcommittee Chairman Greg Walden, R-Ore., told us. “We have pretty top-notch talent on our subcommittee that looks at these spectrum issues because we have principal jurisdiction. We were able to work with Mr. Thornberry and his team to perfect the amendment to accomplish their goal and maintain appropriate oversight over spectrum.” There was a classified briefing Monday “so everyone got a better understanding of the programs,” Walden added.

CTIA said the tweaks are acceptable. The wireless association “appreciates the collaboration between the Energy and Commerce Committee and the Armed Services Committee to ensure that provisions of the NDAA relating to spectrum policy appropriately balance the interests of the Defense Department and the commercial wireless industry,” CTIA Vice President-Government Affairs Jot Carpenter said Wednesday following passage of the NDAA. “The Rogers and Thornberry amendments adopted by the House reflect a reasonable balancing of equities and we thank Chairmen Upton and Thornberry, as well as Subcommittee Chairmen Walden and Rogers, and their staffs, for their efforts to reach agreement on both amendments.”

The Commerce Committee became involved due to jurisdictional interest, a GOP committee aide told us Thursday. He framed the NDAA amendment as one to address a national security spectrum problem. The committees' collaboration produced a version that allowed that amendment's goal to happen in a slightly different manner that satisfied both committees, the aide said. He said it’s normal for such collaboration to happen due to the two committees’ overlapping spectrum interests.

On the chamber floor Wednesday night, lawmakers fixated on Thornberry’s amendment before its adoption. Democrats opposed the amendment on grounds of its inclusion not following regular order. Top Democrats on the Commerce and Armed Services Committee countered Thornberry and mentioned concerns about how the provision will advance beyond this week’s vote. The Senate hasn't voted on its version of NDAA.

“The Spectrum Pipeline Act was included in the Bipartisan Budget Agreement of 2015 that we passed in December,” Thornberry said on the floor. “Apparently there has developed some disagreement among lawyers about whether that had some effect on Section 1062(b) of the FY 2000 National Defense Authorization Act related to spectrum. My amendment simply clarifies what everyone that I know of agrees on -- and that it was never intended to have any effect. We have assurance from the Office of Management and Budget that was their intention.” He called the proposal a “technical amendment to resolve some disagreement among lawyers” and mentioned working with Upton to produce the latest version, accepted by CTIA.

“It’s imperative that we continue our bipartisan management of this valuable national asset but to do that we must follow regular order through the proper committee of jurisdiction,” countered Commerce Committee ranking member Frank Pallone, D-N.J. That amendment version was “made public one day ago” and the process “runs counter” to how the lawmakers traditionally handled business, he said. Stakeholders and the agencies can’t weigh in, he said. Pallone appreciated efforts by colleagues “to improve” the language but these spectrum issues “cannot be put together overnight,” he said. “If there are issues of national security underlying this amendment, the Democrats on the Energy and Commerce Committee stand ready to work on them expeditiously.”

Armed Services Committee ranking member Adam Smith, D-Wash., said he wants to address some of his concerns in the conferencing process. Smith lamented the “eleventh-hour” entry of DOD requesting a change in the language, which he said compels closer examination. “We thought we had it worked out,” Smith said. “Now, we’re hearing a slightly new argument. I certainly want to make sure the Department of Defense interests are protected. But I also want to make sure they don’t have absolute veto power on auctioning spectrum. That was sort of the law before all the Energy and Commerce Committee and others worked on, and it really tied up a very valuable national asset, as Mr. Pallone points out. I hope that as we get into conference committee, we’ll figure out how to both protect the interests of national security and defense but also make sure as spectrum can be safely made available, it is made available.”

Democrats stood together in opposition, one Democratic House staffer told us. They questioned how the spectrum amendments were essentially air-dropped into the NDAA due to the concerns from the Department of Defense, the staffer said. They were not part of the Commerce Committee negotiations in tweaking of the language, the staffer added.