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Intra-GOP Disagreements on Lower 3 GHz

Cantwell Eyes Path Forward on Clean 5-Year FCC Spectrum Reauthorization After Hearing

Senate Commerce Committee Chair Maria Cantwell, D-Wash., told us Thursday she hopes to soon file legislation on a five-year renewal of the FCC’s lapsed spectrum auction authority without language authorizing sales of specific bands, despite Republican criticism during a Thursday hearing about omitting an airwaves pipeline. Senate Commerce ranking member Ted Cruz, R-Texas, and Communications Subcommittee ranking member John Thune, R-S.D., emphasized their 2024 Spectrum Pipeline Act (S-3909) as an antidote to concerns about the Biden spectrum strategy, as expected (see 2403200001). The hearing also revealed clear divisions among panel Republicans about continuing to explore 5G use of the 3.1-3.45 GHz band, which has drawn opposition from DOD and top Capitol Hill allies (see 2403200061).

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The Senate Commerce hearing also served as a venue for lawmakers who back allocating an additional $3.08 billion for the FCC’s Secure and Trusted Communications Networks Reimbursement Program and stopgap funding for the commission’s ailing affordable connectivity program to vent frustration about Congress’ failure thus far to address either matter (see 2403210067). The Further Consolidated Appropriations Act FY 2024 minibus spending bill, which congressional leaders released early Thursday morning as an amendment to legislative vehicle HR-2882, includes neither ACP nor rip-and-replace funding, as expected (see 2403190062).

We’ll try to work with our colleagues” post-hearing “to see if we can come to some terms” on legislation reflecting the reauthorization-only proposal, Cantwell said after the Thursday panel. “We’ve been waiting for a score” from the Congressional Budget Office reflecting that plan “for a long time. We finally got some data and information about that.” CBO’s analysis of the proposal (see 2403140066) valued a clean five-year restoration of the FCC’s mandate at $12 billion-$15 billion because it would give the commission latitude to sell spectrum already in inventory, lobbyists said. Cantwell’s proposal would allow Congress to initiate a “bridge” loan to advance the FCC money to keep ACP running for a year, end the rip-and-replace funding gap and provide at least a “down payment” for next-generation 911 tech upgrades, one telecom lobbyist said.

Cantwell emphasized the need for FCC spectrum reauthorization during the hearing. Senate Commerce should also discuss “what we can do to make sure spectrum is made available now to continue to increase capacity, expand the opportunities for new technology and IoT, and leverage the opportunities for areas that aren't covered today to grow our economy of the future,” Cantwell said. She pointed to “outer bands” as a potential area for swift movement, including portions of the upper 12 GHz band and the 197 AWS-3 licenses that Dish and its affiliated designated entities returned to the FCC after the agency denied them $3.3 billion in bidding credits (see 2307280046).

Republican Criticism

Cruz said S-3909 “is vital for the U.S. to stay ahead of our adversaries and to advance strong economic growth.” S-3909 would require NTIA to identify at least 2,500 MHz of midband spectrum the federal government can reallocate for nonfederal or shared use within the next five years. The measure would renew the FCC’s auction mandate through Sept. 30, 2027 (see 2403110066). The Biden administration’s spectrum strategy “offers perpetual studies, bureaucratic dithering and no action to free” bandwidth, while S-3909 offers “certainty,” said Cruz.

Thune suggested S-3909 will let Congress “act to provide a real spectrum implementation plan,” as opposed to the Biden strategy. “It's clear to me that the Biden administration is not taking our mid-band spectrum deficit seriously,” he said: “While China and our rivals are freeing up this crucial” spectrum, the Biden strategy “committed to freeing up zero megahertz.” The U.S. needs “to make more advanced spectrum available for commercial, licensed and unlicensed uses to maintain our global competitiveness,” Thune said.

Cruz drew support for S-3909 from several witnesses. “We need action,” said Hudson Institute Center for the Economics of the Internet Director Harold Furchtgott-Roth, a Republican former FCC commissioner. “We don't need more studies ... more committees or bureaucracies.” Center for Strategic and International Studies senior fellow Clete Johnson praised the Biden spectrum strategy but believes a pipeline, like the one S-3909 proposes, is necessary to complement administration actions. “We can't get to a pipeline without a statute,” which also needs to restore the FCC’s authority, he said. CTIA and the Wireless Infrastructure Association told Cantwell and Cruz ahead of the hearing it's “critical that Congress enact legislation expeditiously that couples an auction authority extension with a spectrum pipeline.”

Cruz separately cited his filing with Sen. Jacky Rosen, D-Nev., of a companion version of the House Commerce-cleared Satellite and Telecommunications Streamlining Act (HR-1338). The measure, which the House voted down in July under suspension of the rules (see 2307260037), would require the FCC to issue performance requirements for satellite licensees to meet on space safety and orbital debris. It would also require the commission to set a 180-day shot clock to limit the timeline for reaching decisions on license applications. “We must promote American innovation on all fronts, and that includes maintaining U.S. leadership in next generation satellite technologies,” Cruz said during the hearing.

'Myriad' Opinions

The hearing showed “there’s a myriad of opinions” about moving forward on spectrum legislation, but “I think we can make some progress and keep going,” Cantwell told us. The White House in December 2022 “tried to push forward” on a scuttled spectrum legislative deal between Cantwell and other leaders of the House and Senate Commerce committees (see 2212190059), but Senate Minority Leader Mitch McConnell, R-Ky., and Sen. Mike Rounds, R-S.D., “shut that down.” Since then, “people have come to the table on more dynamic spectrum sharing,” Cantwell said. Only “through collaborative spectrum management and technological innovation, I believe, can we create a true pipeline,” she said during the hearing. “A sustainable, responsible vision will allow us to move forward.”

Senate Armed Services Committee ranking member Roger Wicker, R-Miss., appeared more open during the Commerce hearing to continuing to eye the lower 3 GHz band than some other senators who serve on both panels. He queried whether DOD could again “compress its systems” on the band as it did in response to the 2020 Beat China by Harnessing Important, National Airwaves for 5G Act’s mandate for an FCC sale of the 3.45-3.55 GHz frequency (see 2012210055). “We can do it again and the better we get at doing it … the stronger we will be,” Johnson said.

We should not continue to see DOD only as the pot of spectrum gold at the end of the rainbow,” said Sen. Deb Fischer, R-Neb., a Senate Armed Services and Commerce member. “Boosting spectrum efficiency cannot come at the cost of harming systems” DOD “depends on to keep this country safe. Vital missile defense radar systems operate in Alaska and in Hawaii using the same key mid-band spectrum that many corporations seek to obtain. We cannot deter or defeat China if our radar systems cannot reliably detect, identify and track an ICBM missile or other incoming threat.” It “would be very reckless to sacrifice current and future military capabilities solely for economic gain,” she said.

Congress’ failure thus far to “agree on national spectrum policy” shows “the legislative branch underinvests in the tools and institutions that we need to address” highly technical issues, said Senate Communications Chairman Ben Ray Lujan, D-N.M. Debate “is essential, but different federal agencies even disagree on what is technically feasible,” he said: “It’s simply unacceptable.”