On Monday, four members of the House Energy and Commerce Committee, including Chair Cathy McMorris Rodgers (R-WA), issued a statement indicating that they are "extremely disappointed" that Congress has not yet passed the Spectrum Auction Reauthorization Act of 2023 (H.R. 3565).
In "Extending FCC Spectrum Auction Authority Is Essential to the 5G Race," a February 2023 Perspectives from FSF Scholars, I warned that, absent congressional action, the FCC's auction authority soon would expire – thereby shutting off the spectrum pipeline that is essential not only to our nation's continued global leadership in the mobile space, but also to our overall economic growth. On March 9, 2023, that concern became reality. And over four months later, the wait for a legislative solution drags on.
H.R. 3565 would reinstate the Commission's auction authority through September 30, 2026. It also would appropriate an additional $3.08 billion for the FCC's "rip-and-replace" program, which provides funds to remove from American communications networks suspect hardware manufactured by Huawei, ZTE and other untrustworthy sources.
As Free State Foundation President Randolph J. May noted in a May 25, 2023 post to the FSF Blog, the day prior H.R. 3565 advanced out of committee on a unanimous 50-0 vote. Unfortunately, it has not yet reached the House floor.
The expiration of the Commission's auction authority impacts more than just future auctions. FCC Chairwoman Jessica Rosenworcel has taken the position that the agency can neither grant to T-Mobile the licenses in the 2.5 GHz band for which it paid $304 million nor approve its request for special temporary authority (STA) to use that spectrum in the interim.
In a statement to Fierce Wireless, the FCC's press secretary wrote that subsection 11 of Section 309 of the Communications Act "clearly states that 'The authority of the Commission to grant a license or permit under this subsection shall expire March 9, 2023'; so, any special temporary authority the FCC could have would flow from this section of the statute, which as you know is still currently expired."
T-Mobile and others, including a group of former FCC General Counsels, interpret the relevant statutes and agency precedents quite differently.
Big picture, the path out of this situation is clear: Congress should act expeditiously to reinstate on a long-term basis the Commission's auction authority. In the meantime, the agency can and should consider seriously the legal arguments referenced above that would allow T-Mobile to put to its highest and best use – whether on a licensed or STA basis – the spectrum for which it already has paid.
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