Lawmakers, Officials Brace for Coming DOD Report's Impact on Spectrum Bill Deal Prospects

“The plan now” on the Senate side “is to wait” until DOD sends its 3.1-3.45 GHz study results to Congress before moving further in spectrum legislation talks, said Senate Communications Subcommittee ranking member John Thune, R-S.D. That report will “really inform where we want to go” in including any language to authorize selling portions of that spectrum as part of a larger bill. The House Commerce Committee-approved Spectrum Auction Reauthorization Act (HR-3565) and similar language congressional leaders attempted to attach to the FY 2023 appropriations omnibus package (see 2212200077) propose selling major parts of the lower 3 GHz band.

“We’re going to have all the data we need” to clarify lawmakers’ positions on spectrum legislation once the DOD study comes out, said Senate Commerce Committee Chair Maria Cantwell, D-Wash., in an interview. Rounds and others “said they needed more time” to reach a conclusion on the lower 3 GHz question, but once DOD releases the findings “we need to move forward” in those talks. “It’s going to be a busy September” for Congress in part because of a compressed timeline for averting a government shutdown once FY23 appropriations expire the night of Sept. 30, she said.

Rounds told us he expects DOD to finish its report “sometime in August” but isn’t sure how soon afterward the department will deliver it to Congress. “We’re going to see what DOD comes up with,” including “what the possibilities are of sharing some of [the band] in some geographic areas,” Rounds said. Areas “along the coastlines, which is where a lot of” that spectrum is in “real” DOD use, are “also the same areas that some of the telecom companies might have hoped to utilize,” which could result “in a conflict.”

“I’m really hoping” release of the DOD report will mean Rounds and others will clear the way for a deal on spectrum legislation, but “before that time there should already be some basic understanding” of the issues at play, said House Communications Subcommittee ranking member Doris Matsui, D-Calif. “Sometimes people wait for a report to come out, and then it doesn’t really help” their argument for or against a bill, which may be the case for opponents of commercial use of the lower 3 GHz band.

FCC Commissioner Brendan Carr referenced the ongoing stalemate during the commission’s Thursday meeting (see 2308030075), which several congressional staffers attended. If those aides could “find some good spectrum auction authority somewhere” during the current recess “we would be happy to put it to good use,” he said. “The FCC’s Office of Legislative Affairs provides periodic educational programming for House and Senate telecom staff members in which they visit FCC facilities, meet and hear from policy experts and attend an Open Meeting,” a spokesperson emailed Friday.

Sharing Possibilities

“Everyone expects that" DOD's report will recommend a sharing apparatus for the lower 3 GHz band, but it “might be at much lower power levels than what the mobile industry traditionally uses for its business model,” said New America’s Open Technology Institute Wireless Future Project Director Michael Calabrese. “That doesn’t mean there can’t be an auction” covering some portions of the spectrum, with the current citizens broadband radio service band model being one potential path forward. Rounds and other Senate Armed Services Committee members “really circled the wagons around” protecting DOD’s interests on the lower 3 GHz band after what they consider an unsatisfactory outcome of previous spectrum battles involving defense systems, Calabrese told us.

Groups that favor an eventual spectrum package allocating some future sales revenue to close the FCC’s $3.08 billion Secure and Trusted Communications Networks Reimbursement Program funding shortfall and pay for next-generation 911 tech upgrades are particularly interested in the DOD study’s results. HR-3565 would allocate up to $14.8 billion in future auction proceeds for NG-911. It would give the FCC the rip-and-replace money up front and use some future auction revenue to cover the loan (see 2305240069). “Not only can Congressional action on” spectrum legislation “fund important priorities, including the ‘rip and replace’ shortfall, but it will also remove uncertainty regarding granting” remaining licenses from the 2022 2.5 GHz auction (see 2307070042), a Competitive Carriers Association spokesperson emailed.

“I suspect and believe that we should be seeing some more movement on the Senate side” on spectrum legislation once the DOD recommendations reach Congress, said National Emergency Number Association Government Affairs Director Jonathan Gilad. An adverse DOD assessment of possible commercial use of the lower 3 GHz band “would require a conversation” about potential NG-911 funding alternatives. NENA’s “objective is not so much the particular band” the FCC could auction to fund telecom projects as it is “the revenue” such a sale could generate, he told us: If different spectrum “is identified, we are fine with that.”

“If the Commerce committees don’t feel they’ll be able to mandate a large high-power auction” of lower 3 GHz band spectrum, “it may not bring in as much revenue” as those hoping HR-3565 would result in maximum proposed funding for rip and replace, NG-911 and other priorities, Calabrese said. “It’s complicated because” HR-3565 “doesn’t take into account DOD’s costs for clearing” parts of the band. “Those costs could be so high that a high-power auction might not result in net revenue,” while a low-power sale might result in a more positive outcome, he said.

“Restoring auction authority should not get gummed up and delayed by tussles over specific bands,” said Cooley’s Robert McDowell. If House and Senate Commerce leaders “don't agree on a compromise soon, the U.S. is looking at a year or maybe two-year shutdown in the spectrum pipeline just as we are trying to complete 5G build-out and plan for” 6G. “That could take the better part of a decade to recover from, putting America at a global competitive disadvantage," he said.

“It's frustrating that the weeks go by and we are no closer to a resolution on this issue,” said Jonathan Cannon, R Street Institute policy counsel-technology and innovation and a former acting aide to FCC Commissioner Nathan Simington. HR-3565 “is definitely a step in the right direction,” but its prospects depend on “the results of the DOD report.”