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Subpanel Clears Broadband Permitting Package

Rounds Sees Senate Trouble for Bill Restoring FCC Auction Authority Through June 30

Sen. Mike Rounds, R-S.D., threw a wrench in Senate prospects for quickly passing a new proposal from House Commerce Committee Chair Cathy McMorris Rodgers, R-Wash., to restore the FCC’s spectrum auction authority through June 30 (HR-3345) before the House Communications Subcommittee unanimously advanced it during a Wednesday markup session. The mandate expired in early March after Rounds objected to Senate leaders' bid to pass a House-cleared bill to extend the mandate through May 19 (HR-1108) by unanimous consent (see 2303090074). Rounds told us Tuesday he still won't allow UC passage of any bill to restore the FCC's remit unless it goes through Sept. 30 to give DOD time to complete a study of its systems on the 3.1-3.45 GHz band.

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HR-3345's short restoration timeline appears aimed mainly at giving the FCC legal assurance for enough time to issue T-Mobile the 2.5 GHz licenses it bought in an auction last year and isn’t an indication that parties are at all close to a deal on a broader spectrum legislative package, lobbyists and others told us. Senate Commerce Committee ranking member Ted Cruz, R-Texas, has apparently “diverged” from panel Chair Maria Cantwell, D-Wash., and House Commerce leaders, who all support bringing back legislation as identical as possible to the Spectrum Auction Reauthorization Act proposal they failed to attach in December to the FY 2023 appropriations omnibus package (see 2212190069), said one lobbyist following deliberations.

Cruz supports mandating a 3.1-3.45 GHz auction but “does not want to designate any of the proceeds to pay for telecom priorities like” providing an additional $3.08 billion to fully fund the FCC's Secure and Trusted Communications Networks Reimbursement Program and money for next-generation 911 tech upgrades, said a lobbyist following Senate talks. That was “much of the motivation” among House Commerce and some other leaders for vigorously pursuing the lower 3 GHz as part of a spectrum package, especially because they hoped it would help boost the Congressional Budget Office’s scoring of the proposal. “They’re afraid that after” DOD releases its recommendations for the band, the CBO score “may go down,” the lobbyist said. Cruz’s office didn’t comment.

The “conventional wisdom is that they are seeking” the June 30 “extension to give the FCC time to issue T-Mobile’s 2.5 GHz licenses, but at the same time they realize that the larger package around extending the authority for a longer period is going to happen after DOD submits their report on the lower 3 GHz band in August or September,” said New America’s Open Technology Institute Wireless Future Project Director Michael Calabrese in an interview. “It was considered certainly unfair, if not unreasonable, for the FCC to hold T-Mobile’s licenses hostage just to put pressure on the Hill to extend the auction authority.” The FCC “has the authority to hand them the licenses they’ve already purchased” even though “the statutory provisions on auctions don’t apply anymore,” he said.

'Need to Act'

Rodgers told us before the House Communications markup session there wasn’t any particular significance to the proposed June 30 expiration date. “We need to act” to restore the FCC’s authority, even if it’s just for a short time, she said: “Every day that goes by” with the mandate still lapsed, the U.S. loses “more of our leadership position” on 5G and “it costs us more of our technological advantage” to the benefit of China and other adversaries. She said during the meeting her goal remains to reach consensus on a “broader” spectrum package and suggested HR-3345 could become a placeholder for such language at a future full House Commerce markup if lawmakers are able to quickly reach a legislative deal.

It wasn’t clear whether House Commerce leaders had buy-in from Cantwell, Cruz and other Senate Commerce leaders on HR-3345. House and Senate Commerce didn’t comment.

Cantwell and Senate Communications Subcommittee ranking member John Thune, R-S.D., separately expressed surprise when we asked them about the bill given the short extension it proposes. “I’ll have to check on that,” Thune said Wednesday in a brief interview. Cantwell was to meet with Senate Commerce aides Wednesday to talk through the proposal but told us Tuesday “we’re making some progress” in legislative talks. “We weren’t opposed to a shorter” extension if it provided enough time for lawmakers to successfully finish negotiations, she said.

Rounds is adamantly opposed to HR-3345 and said Tuesday he hadn’t received word from Rodgers’ office that the new proposal was coming. “You’re getting to just over a month-long extension and I don’t see that going anyplace at least over here” in the Senate, he said. “If they want to run it until after” the DOD’s lower 3 GHz band study is finished around Sept. 30, as he proposed in S-650, “I have no problem with that. But I want it clean.” Rounds has concluded “there is no need for auction authority at this point” since the FCC has no new sales teed up in the near future. “We want to do this right and I have no interest in allowing them to sell parts of” the lower 3 GHz band “until we know for sure what the impact is on our national defense,” he said.

House Commerce ranking member Frank Pallone, D-N.J., and House Communications leaders also emphasized HR-3345 is a stopgap measure. It “is a short-term bill” and “we must renew” the FCC’s “authority for the long term,” Pallone said: “We must also restore” NTIA’s “place as the clear manager of federal spectrum and ensure that the proceeds from future auctions be used to fund important projects that benefit the public.”

It’s “vitally important that we continue to push for a long-term spectrum auction authority solution and this legislation is a step in that direction,” said House Communications Chairman Bob Latta, R-Ohio. Reinstating the FCC’s mandate “is a national security imperative” and leaving it lapsed in the run-up to the Nov. 20-Dec. 15 World Radiocommunication Conference “sends a dangerous message to the rest of the world,” said subcommittee ranking member Doris Matsui, D-Calif. She warned that “without a willing partner in Senate,” even HR-3345 “may not be enough.”

Markup Disagreements

House Communications advanced on voice votes five broadband permitting bills that leaders identified as having strong bipartisan support: the Facilitating the Deployment of Infrastructure with Greater Internet Transactions and Legacy Applications Act (HR-3283), Expediting Federal Broadband Deployment Act (HR-3293), Deploying Infrastructure with Greater Internet Transactions and Legacy Applications Act (HR-3299), Standard Fees to Expedite Evaluation and Streamlining Act (HR-3309) and Federal Broadband Deployment Tracking Act (HR-3343).

Pallone, Matsui and other Democrats voiced strong support for the bipartisan broadband bills but excoriated House Communications Republicans for moving forward on a set of more than 20 GOP-backed connectivity permitting bills combined into a substitute amendment to the Proportional Reviews for Broadband Deployment Act (HR-3291) that renamed the measure the American Broadband Deployment Act. Rodgers and other Republicans defended the measures as necessary to ensure wise and swift spending of connectivity money from the 2021 Infrastructure Investment and Jobs Act. House Communications members similarly divided along party lines on the bills during an April hearing (see 2304190068).

House Communications voted 16-12 along party lines Wednesday to advance the HR-3291 package. House Commerce Republicans “have introduced these proposals for the last two Congresses and even the Biden administration has put out a permitting action plan to roll back permitting requirements to ensure effective use of the billions of dollars dedicated for infrastructure buildout,” Rodgers said. It’s “disheartening that my colleagues on the other side of the aisle were unwilling to work with us on” the measures now combined in HR-3291, Latta said. “Our proposals make meaningful, commonsense reforms to many permitting processes that are barriers to broadband deployment.”

Democrats offered a series of amendments that failed along party lines. “While I am happy to support a small handful of bipartisan bills that improve certain processes at federal agencies that deal with broadband permitting, I am disappointed to say that” HR-3291 “would run roughshod over critical environmental and cultural protections,” Pallone said. “It is partisan legislation that will ultimately do nothing to ensure that the historic broadband investments Democrats delivered as part of” IIJA “reach all communities that need it.” The measures combined in HR-3291 are “partisan and counterproductive,” Matsui said. She unsuccessfully sought an amendment to expressly clarify that unobligated money in the rip and replace program will remain available after HR-3291’s enactment.

House Communications will examine broadband, spectrum and other tech issues under NTIA’s purview during a May 23 hearing, Commerce said Tuesday. Lawmakers will examine a set of NTIA bills, including the Simplifying Management, Access, Reallocation and Transfer of Spectrum Act (HR-1677) and Next-Generation 9-1-1 Act (HR-1784). The hearing will begin at 10 a.m. in 2123 Rayburn.