The Auction Clock Is Ticking - Update

 In a May 24 blog post, "The Auction Clock Is Ticking," I urged Congress to extend the now-expired FCC authority to conduct spectrum auctions in a timely fashion. I said its failure to do so "threatens substantial adverse consequences." I pointed out that, on May 23, in a letter to congressional leadership on communications policy matters, a bipartisan group of 16 former FCC Commissioners, including 6 former permanent FCC Chairmen and two former interim Chairs, urged Congress to restore the FCC’s auction authority, stating that: "On other significant communications policy issues, these former FCC leaders do not always agree. On extending the FCC's auction authority, there is unanimity."

 

Talk about bipartisanship! Yesterday, when the House Commerce Committee adopted, on a 50 – 0 vote, a measure to reinstate the FCC's auction authority through September 2026, the House Commerce Committee members showed the same unanimity that was displayed in the letter from a bipartisan group of 16 former FCC Commissioners.

 

As readers of this space know, I've never been one to tout unanimity, bipartisan or otherwise, just for unanimity's sake, when matters of principle are at stake. But you don't need a Ph.D. degree in political science to appreciate that the display of bipartisan unanimity by House Commerce Committee members and by a large number of former FCC Commissioners, all urging prompt extension of the agency's auction authority, ought to carry substantial weight.

Relatedly, just one example of the deleterious effects of the expiration of the Commission's auction authority is the agency's claimed inability to issue the licenses T-Mobile won in the 2.5 GHz spectrum auction – and for which it paid $304 million. Back on March 23, four former FCC General Counsels explained in a letter to the Commission why, in their view, despite the expiration of the Commission's auction authority, the agency possesses the authority to issue licenses won at an auction conducted when the Commission possessed such authority. They conclude that the Commission’s authority to grant licenses awarded by auction is distinct from the agency's authority to conduct auctions. This too was a bipartisan group of former senior agency officials.

In the meantime, T-Mobile has asked the FCC to grant its request for Special Temporary Authority (STA) to use spectrum in the 2.5 GHz for 180 days.

As I have emphasized many times now, there are adverse consequences to a lapse in the FCC's auction authority, especially as the weeks go by without a renewal. As I said yesterday, "it's past time for Congress to act." Still is.