The top Republican and Democrat on the House Energy and Commerce Committee are working to avert a lapse next month in the Federal Communications Commission’s authority to auction spectrum as Congress seeks a more lasting plan that could pay for a number of telecommunications priorities.
Auctions of spectrum, or radio waves that have uses including broadcast television, mobile phone and broadband services, have been a financial boon for the government. But there are often competing pressures over which frequencies to sell to the private sector and what to do with the money.
“We have not seen the auction authority expire since it was first granted in 1993. So we have no idea what might be the legal consequences if it expires,” said Harold Feld, a senior vice president at Public Knowledge, a public interest group focused on digital privacy. “When something expires, it’s not at all clear that it will be renewed.”
The FCC auctions to commercial companies have raised more than $258 billion for the Treasury Department since 1994, according to agency records.
The House passed by voice vote Monday legislation backed by Energy and Commerce Chair Cathy McMorris Rodgers of Washington and ranking member Frank Pallone Jr. of New Jersey that would extend the authority through May 19.
The House’s passage leaves the Senate a narrow window to clear the measure for the president’s signature before the FCC’s authority to conduct spectrum auctions expires on March 9.
The last time Congress passed a long-term extension of the agency’s auction authority was in 2012. After that expired on Sept. 30, 2022, lawmakers temporarily extended it through continuing resolutions. The fiscal 2023 omnibus appropriations law renewed the authority through March 9.
The top Republicans on the Senate Commerce Committee and its Communications, Media and Broadband Subcommittee warned in a statement this month that “lawmakers shouldn’t rush into a bad deal just to secure any deal” on spectrum.
“[W]e are committed to developing a spectrum proposal that achieves the greatest value possible for American taxpayers while protecting our national security interests,” said Ted Cruz of Texas, the full committee ranking member, and John Thune of South Dakota, the communications subcommittee’s top Republican.
Former FCC Commissioner Robert M. McDowell said in an interview that the lawmakers’ statement reflects a desire to balance the priorities of the FCC and the Defense Department, the largest holder of federal spectrum.
“A lot of spectrum policy is like real estate zoning. You don’t want to have a noisy neighbor. So you don’t want to have harmful interference into some bands because that’ll make the missile go off course or the plane to crash, if you’re DoD,” he said. “And then we don’t want harmful interference on our phones or medical devices because that’s going to be disruptive and damaging as well.”
But McDowell emphasized that the competing interests shouldn’t derail a possible agreement.
“Consensus is absolutely 100 percent achievable,” he said.
In the 117th Congress, the House passed, 336-90, legislation that would extend the auction authority through March 31, 2024.
The bill would have mandated auctions of specific spectrum bands for use by nonfederal entities and directed billions of dollars to implement an emergency services upgrade, dubbed Next Generation 911, that would enable the public to send photos, videos and text messages to first responders. It would have also funded an FCC program that covers the cost of replacing equipment or services, particularly from China, that pose national security risks.
McDowell said he thinks the House bill will be used as the foundation for future spectrum legislation.
Taking a ‘fresh look’
Cruz, who became the top Republican on Senate Commerce at the start of the current Congress, wasn’t involved in the negotiations on the House-passed legislation and is taking a “fresh look” at the matter, according to a Senate Commerce GOP aide.
Cruz opposes a long-term extension of the auction authority that doesn’t address the spectrum pipeline and overhaul the interagency spectrum management process, the aide said. The spectrum pipeline generally refers to a system that ensures that wireless spectrum will continue to remain available for commercial use.
The Senate didn’t take up the House legislation but Commerce Chair Maria Cantwell, D-Wash., last year backed a proposal that would renew the FCC’s authority through Dec. 31, 2025.
The Senate version would also have required auctions of certain spectrum bands for use by private entities and allocated billions of dollars for Next Generation 911, as well as a Commerce Department program for constructing internet connectivity infrastructure.
Public Knowledge’s Feld said that he opposes Congress requiring auctions of specific bands.
“Congress has often looked at spectrum as a piggy bank and mandated auctions of spectrum purely for budget purposes without any regard as to whether this is the right policy,” he said.
Feld said he hopes any spectrum agreement leaves the FCC with the flexibility to allocate spectrum where it’s needed. But he agrees that the money generated from the auctions should go toward priorities such as Next Generation 911 and deploying access to digital technology.
“What’s important is the principle that the money from the auction of the public airwaves not just go for deficit reduction but be used for positive public interest purposes,” he said.
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