RAY BAUM Would be Proud

By Gregory J. Vogt, Visiting Fellow, Free State Foundation

Ray Baum would be proud. The Repack Airwaves Yielding Better Access for Users of Modern Services Act (RAY BAUM’s Act of 2018), H.R. 4986, has been passed by the Senate and the House and signed by the President. RAY BAUM’s Act, which honors long time communications expert Ray Baum, who most recently served as House Energy and Commerce Committee Staff Director prior to his death, includes slightly modified provisions of the MOBILE NOW Act that previously passed the Senate. Given the enormous consumer welfare benefits that will come from future 5G wireless deployment, RAY BAUM’s Act mandates near term dedicated and unlicensed spectrum and wireless siting infrastructure streamlining that will significantly aid in 5G deployment.

Among other things, RAY BAUM’s Act:

• Mandates that at least 255 MHz of mid-band spectrum be allocated for wireless mobile and fixed broadband use no later than December 31, 2022, in line with the Obama Administration’s 2010 500 MHz allocation goal;

• Requires the FCC to establish service rules for the 42 GHz band within two years of enactment;

• Requires government to conduct a feasibility study for commercial/government sharing of spectrum between 3.1 and 3.5 GHz and between 3.7 and 4.2 GHz;

• Facilitates speedy deployment of communications infrastructure on federal property or federal-aid supported state transportation projects;

• Requires NTIA to report recommendations to Congress that would provide incentives to federal agencies to relinquish or share the spectrum they use;

• Requires NTIA to study bidirectional sharing that would permit government to gain flexible access to commercial spectrum on a shared basis;

• Requires the Commission, in consultation with NTIA, to develop a national plan for promotion of unlicensed spectrum;

• Requires the FCC to adopt rules permitting unlicensed mobile use of spectrum in guard bands; and

• Requires the FCC to conduct a rulemaking to increase advanced telecommunications service in rural area and make spectrum available to covered small carriers.

The Act is laudable because it will add significant mid- and high-band spectrum usable to deploy 5G service in the future in a timely fashion. The Act reinvigorates the search for reallocable spectrum, an effort that lagged in the Obama Administration. The legislation also is important because it places timelines on the reallocation of possible new mobile spectrum, ensuring there is a spectrum pipeline to meet future demand.

The Act recognizes the importance to the American and global economies of speedy deployment of 5G services. Sufficient available spectrum is needed to maintain U.S. leadership in deployment of advanced wireless technology. As Randolph May and I detailed here, mobile broadband produces significant increases in annual consumer welfare, and contributes significantly to jobs, tax revenues, and U.S GDP, including the revenues associated with export of wireless know-how and products worldwide that produce tangible benefits retained in the U.S. 5G technology can deliver mobile broadband at considerably greater speed, increase capacity for billions of new Internet of Things (IoT) devices, and reduce latency, or the time it takes for Internet messages to be received and responded to. More spectrum is necessary to fulfill exploding consumer demand for wireless capacity.

The Act is lukewarm in its ability to motivate government to give up inefficiently used spectrum. Although the required NTIA study is useful, the government must urgently review incentives to increase the reallocation of spectrum for private use. Many interesting proposals have already been made, which I evaluated favorably here. MOBILE NOW’s bidirectional sharing proposal may have some impact on convincing an agency to give up some of its exclusive right to spectrum, but I have my doubts given endemic government hand-wringing and potential operational problems of such an approach. Providing a more material incentive, such as allowing an agency to share in auction proceeds like the broadcaster incentive auction, assign opportunity cost values to government spectrum, and using other good management techniques, would better encourage government to use spectrum efficiently.

The spectrum provisions are somewhat different than the original Senate version of MOBILE NOW because the FCC already had allocated a number of the millimeter wave bands for mobile and fixed wireless use originally addressed by the Senate. For instance, the FCC’s Spectrum Frontiers proceeding already moves the spectrum pipeline forward with high-band spectrum. The FCC has also been exploring modification of the 3.5 GHz rules that can make the spectrum more useful to mobile broadband carriers. The Commission has already opened an inquiry examining reallocation of spectrum between 3.9 GHz and 24 GHz, which may be useful in implementing some provisions of RAY BAUM’s Act.

The Pai FCC also is rejecting the unwise market-killing restrictions of the kind that encumbered some auctions held during the Wheeler FCC administration so that auctions will more closely resemble competitive markets. Unencumbered auctions yield more benefits for America’s consumers and taxpayers.

The Act’s wireless infrastructure provisions also will aid 5G deployment. Requiring the federal government to address siting proposals in a timely fashion and standardizing site contracts will improve 5G deployment. Together with other infrastructure proposals that either have been or are in the process of being adopted by the FCC, government at all levels will be expected to facilitate approval of infrastructure proposals pursuant to national spectrum deployment policy priorities.

Amidst the noise of the political milieu, it is heartening to see that Congress generally made wise bipartisan choices benefiting American consumers. RAY BAUM’s Act, which the President has now signed, places a firm stake in the ground in favor of prompt 5G deployment.