DOD Claims a Likely Flashpoint if Congress Moves on Spectrum in Reconciliation
Lawmakers and officials expect that long-standing DOD objections to repurposing the 3.1-3.45 GHz band and other military-controlled frequencies will remain a flashpoint in negotiations during the new Congress as GOP leaders eye using an upcoming budget reconciliation package to move on spectrum legislation. Observers eyed potential friction from Sen. Deb Fischer, R-Neb., if she succeeds in her bid to become Senate Communications Subcommittee chair (see 2412180052) given her well-known disagreement with new Commerce Committee Chairman Ted Cruz, R-Texas, on DOD spectrum issues.
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New Senate Majority Leader John Thune of South Dakota told us in December he and other Republicans “are looking at all options for getting a spectrum pipeline bill done,” but it “could be a reconciliation issue” because of the revenue FCC sales of repurposed frequencies generate. Some observers believe congressional leaders may choose to limit the scope of spectrum language in a reconciliation package to renew only the FCC’s lapsed auction mandate, leaving for later authorization of sales of specific bands (see 2412030050).
Thune was adamant that “we need a pipeline” to be part of any spectrum measure that Congress passes. He and other Republicans objected to moving last year on the Spectrum and National Security Act because it lacked authorization for substantial bandwidth (see 2404250061). Cruz remained mum on his spectrum plans but told us "we’re going to get it done” during this Congress. Lobbyists expect Thune and Cruz will press for reconciliation language resembling their 2024 Spectrum Pipeline Act, which proposed requiring NTIA to identify at least 2,500 MHz of midband spectrum the federal government can reallocate within five years (see 2403110066).
New House Commerce Committee Chairman Brett Guthrie, R-Ky., told us he only recently began participating in GOP reconciliation discussions, following his selection to lead the panel, but emphasized “there haven’t been any decisions” on including spectrum legislation in a package. Restoration of the FCC’s auction authority must be part of any solution, Guthrie said: Lawmakers will also “need to incentivize federal agencies to release spectrum.”
Whether lawmakers will need to consider a broader spectrum legislative package later in this Congress “depends on what comes out of reconciliation,” Guthrie said. “Is it sufficient or do we need to go further?” Lobbyists noted Guthrie hasn’t decided whether he will back the Cruz-Thune approach or have House Commerce act first by passing its own bill, as the panel did during the last Congress. House Commerce unanimously advanced its Spectrum Auction Reauthorization Act (see 2305240069) in 2023 with backing from then-Senate Commerce Chair Maria Cantwell, D-Wash., now the panel’s ranking member.
Cantwell wondered whether Fischer and others who opposed “moving ahead on DOD-related spectrum” would remain intransigent. “There seemed to be some progress” during the last Congress “by bringing NTIA and DOD to the table and saying dynamic spectrum sharing is a positive thing,” although that didn’t break a negotiations stall, which prevented Senate Commerce from moving on the Spectrum and National Security Act (see 2409170066), Cantwell told us.
'Very Serious Matter'
Fischer indicated that a spectrum compromise remains possible despite her past disagreements with Cruz on DOD bands. “I look forward to working with [Cruz] on an agreement that’s going to be beneficial to everyone, especially to the security of this country,” she told us. Cruz said he will “make announcements” about leadership on Senate Communications and other Commerce subpanels “at the appropriate time.”
Sen. Ben Ray Lujan, D-N.M., who wants to be Senate Communications' ranking member in this Congress, said he’s “open to different ideas” on spectrum legislation. These include “having another conversation about” obligating specific bands after addressing the FCC’s authority via reconciliation, Lujan told us. “What we should not be doing is making things worse in this space” given the FCC’s general mandate lapsed in March 2023 (see 2303090074).
House Communications Subcommittee ranking member Doris Matsui, D-Calif., is concerned that movement just on the FCC’s auction authority will reduce the appetite for addressing related issues later. “I don’t want us to end up just doing something” via reconciliation “and say ‘we’ll figure out’” reallocation of bands later, she told us. “It’s a very serious matter.”
Cooley’s Robert McDowell told us a “clean” FCC auction reauthorization is the “likeliest” spectrum language to make it into a reconciliation package, but there’s greater uncertainty whether lawmakers will agree to include anything more. Much will depend on the degree to which Cruz and Thune push to attach the entirety of their Spectrum Pipeline Act, along with which direction Guthrie chooses to take House Commerce, McDowell said.
Brookings Institution senior fellow Blair Levin said DOD will continue being a major player on spectrum during this Congress since it was previously a “primary counter” against pushing to repurpose the lower 3 GHz band, a long-standing sticking point in legislative talks. Levin questioned how the Congressional Budget Office could even score just an FCC auction mandate renewal as an offset for tax cuts or other reconciliation matters without lawmakers addressing the lower 3 GHz. CBO might not be able to overlook the issue because of the potential impact an auction of the band would have on overall estimated revenue, he said.