Today, October 3, the Senate passed the H.R. 6833, the "Continuing Appropriations and Ukraine Supplemental Appropriations Act, 2023." The bill, which is expected to be signed into law, contains a two-and-a-half-month extension on the FCC's authority under Section 309(j)(11) of the Communications Act of 1934 to conduct spectrum license auctions. Leaving aside opinions about the rest of the bill, H.R. 6833 gives the 117th Congress an additional window of opportunity to take up and pass H.R. 7624, the Spectrum Innovation Act of 2022, before the end of its session.
If passed by Congress and signed into law, the Spectrum Innovation Act would extend the FCC's spectrum license auction authority to March 2024. Additionally, the Act would direct the Commerce Secretary to identify 200 MHz in the lower 3 GHz band for "non-Federal use, shared Federal and non-Federal use, or a combination thereof." And it would direct the FCC to conduct an auction for licenses in the lower 3 GHz band.
There remains a pressing need for more commercially licensed mid-band spectrum, and the lower 3 GHz band is a prime candidate for repurposing. Indeed, Accenture's late September 2022 report observed that the federal government is the primary user for 3,300 MHz of spectrum between 3 GHz and 8.4 GHz. That amounts to 61% of the lower mid-band spectrum range, with a large percentage of the remainder dedicated to unlicensed use, and only 270 MHz currently available for commercial licensed wireless use. And in a September 22 blog post, Free State Foundation Senior Fellow Andrew Long spotlighted an AnalysysMason report that found the U.S. lags behind its global competitors France, Japan, and the U.K. in the amount of licensed mid-band spectrum available for commercial use by an average of 530 MHz.
In order to effectively repurpose 200 MHz in the lower 3 GHz band, the FCC must retain its power to conduct licensed spectrum auctions and transfer licenses to winning bidders. And successful spectrum license auctions require regulatory certainty in order to draw the interest of auction participants and to maximize auction proceeds.
As mentioned in a blog post from this summer, the House of Representatives passed the Spectrum Innovation Act on July 27. A joint announcement by the bipartisan leaders of the House Energy & Commerce Committee has highlighted the strong and widespread base of support for the Act and urged the Senate to take prompt action on the bill. The table is now set for H.R. 7624, and the Senate should make passage of the bill a top priority.