CTIA Joins Growing Chorus Opposing Military Spectrum Veto

In a November 13 letter to congressional leadership, CTIA President & CEO Ajit Pai warned that Section 1564 of the version of the 2026 National Defense Authorization Act (NDAA) that passed the Senate imposes an "unnecessary" restriction on NTIA's ability to migrate existing military spectrum users into the 3.1-3.45 GHz and 7-8 GHz bands – and thereby free up spectrum in other bands to be auctioned by the FCC for commercial use.

The "One Big Beautiful Bill Act," which called for the auction of 800 MHz of spectrum (and reinstated the FCC's spectrum auction authority through the end of September 2034), explicitly prohibits the auction of spectrum in the aforementioned bands.

Section 1564, which was added to the NDAA by Senator Deb Fischer (R-NE), a senior member of the Senate Armed Services Committee and chair of the Strategic Forces Subcommittee, would go a step further and "[p]rohibit[] any modifications to DoD systems in key spectrum bands without joint certification from the Secretary of Defense and Chairman of the Joint Chiefs of Staff" (emphasis added).

Mr. Pai is not the first to object to the inclusion of Section 1564 in the NDAA.

In a September 10 post to the FSF Blog, Free State Foundation President Randolph May (1) pointed out that the White House in a Statement of Administration Policy objected to Section 1564 because it "would hinder the President's executive authority," (2) agreed that "Congress cannot properly restrict a president's executive authority by handing over final decision-making authority to his subordinates," and (3) urged Senator Fischer to withdraw the provision.

Some additional examples:

• On October 16, Citizens Against Government Waste's Deborah Collier wrote that, should the Senate version prevail, "the Pentagon will be given the absolute authority to veto the sale or shared use of DOD-controlled spectrum, jeopardizing the ability of the U.S. to remain the global leader in telecommunications and stymie the FCC's ability to auction more spectrum for wireless communications."

• At a Punchbowl News event on October 9, House Commerce Committee Chairman Richard Hudson (R-NC) expressed similar reservations, stating that "I don't think we need to give any kind of veto authority to the Pentagon. I think that could be counterproductive."

• At NTIA's 2025 Spectrum Policy Symposium in September, Senator Ted Cruz (R-TX), Chairman of the Senate Commerce Committee, reportedly cautioned that "[p]ractically speaking, this means NTIA would not even be able to move other federal operators to these bands – which it will have to do to clear the spectrum pipeline – unless first receiving approval from the sovereigns at the Joint Chiefs."

T-Mobile/UScellular Transaction Ripe for Agency Action

According to the FCC's website (see graphic below), the agency's review of the $4.4 billion T-Mobile/UScellular transaction has entered its final month. The record evidence overwhelmingly indicates that consumers, including but not limited to current UScellular customers, would be better off if this deal were approved. Therefore, action prior to the end of the 180-day shot clock is warranted.

In an Opposition to Petitions to Deny filed on January 8, 2025, FSF President Randolph May and Director of Policy Studies and Senior Fellow Seth Cooper expressed their view that the proposed transaction likely would produce pro-competitive benefits, benefits that would outweigh any potential harms. They also noted that arguments against the transaction generally lack supporting evidence and/or a specific nexus to the instant transaction.

T-Mobile and UScellular, GN Docket No. 24-286

Source: fcc.gov

As Mr. Cooper described in a post to the FSF Blog shortly after the parties filed their Public Interest Statement on September 13, 2025, that regulatory filing "presents a prima facie case that [the] proposed transaction … will bring public interest benefits that outweigh any potential competitive concerns."

Tangible benefits identified and documented include faster 5G mobile broadband speeds, higher data capacity, and greater availability of fixed wireless access (FWA) home broadband service, especially in rural areas.

Potential harms, meanwhile, are unlikely given the robust competition that exists in the mobile broadband marketplace, a landscape documented by the Free State Foundation in June 2024 comments to the FCC for its 2024 Communications Marketplace Competition Report. Consumers can choose between three nationwide providers, EchoStar's upstart network that is available to over 70 percent of the U.S. population, mobile virtual network operators (MVNOs) such as Spectrum Mobile and Xfinity Mobile, and regional providers.

Potential harms also would be mitigated by the specific nature of this transaction – in particular, the relative disparity in their respective subscriber bases (126 million versus 4.5 million), the limited extent to which the parties directly compete (as Mr. Cooper pointed out in a February 2025 blog post, the parties "apparently do not have an overlapping competitive presence in thirty-seven percent (37%) of the Cellular Marketing Areas (CMAs) implicated by the proposed deal"), and the fact that T-Mobile sets "its pricing and service terms on a nationwide basis."

In addition, approval of this transaction would enable the efficient and timely reallocation of spectrum to its highest and best use while we wait for Congress to renew the Commission's auction authority – a priority Senate Commerce Committee Chairman Ted Cruz (R-TX) discussed in his Keynote Address at the Free State Foundation's recent Seventeenth Annual Policy Conference (video available here).

A New Administration Brings Renewed Hope for Renewed FCC Spectrum Auction Authority

It has been 686 days since Congress allowed the FCC's spectrum auction authority to expire on March 9, 2023. Absent additional auctions, not to mention the identification of specific spectrum bands to be auctioned for commercial use, mobile operators will struggle to satisfy consumers' insatiable demand for wireless data.

Moreover, the U.S. could risk ceding mobile broadband leadership to its global adversaries – in particular, China, the national security concerns regarding which I wrote about recently in two posts to the FSF Blog.

As Rhonda Johnson, AT&T EVP, Federal Regulatory Relations, wrote in a January 15, 2025, blog post, "AT&T stands ready to invest in the next set of 'anything-is-possible' predictions about what 'you will' be able to do in the years to come" – but "[t]he private sector cannot acquire the spectrum it needs in the U.S. until Congress reauthorizes the FCC to conduct auctions and the government allocates more full-power mid-band spectrum for licensed commercial use."

Fortunately, there is reason for optimism.

First, in his Statement on being designated FCC Chairman, Brendan Carr prioritized "unleashing new opportunities for jobs and growth through agency actions on spectrum."

Second, at today's House Committee on Energy and Commerce Subcommittee on Communications and Technology hearing titled "Strengthening American Leadership in Wireless Technology," regarding which Free State Foundation Director of Policy Studies and Senior Fellow Seth L. Cooper blogged yesterday, Subcommittee Chair Richard Hudson (R-NC) noted the following in his Opening Remarks:

Last Congress, the [FCC's] spectrum auction authority expired for the first time due to disagreements about how spectrum resources should be allocated. These auctions have historically brought in billions to our national economy, with the highest spectrum auctions raising over $80 billion from private companies. It is simple economics: there is limited supply, unlimited demand, and a willingness to pay. We need to reauthorize the FCC's spectrum auction authority immediately.

Third, Senate Commerce Committee Chairman Ted Cruz (R-TX) reportedly has described renewal of the FCC's spectrum auction authority as "his top tech policy priority for reconciliation, a process that will allow the GOP to push through budget-related legislation with its slim Senate majority."

In March 2024, Senator Cruz and Senator John Thune (R-SD), the new Senate Majority Leader, introduced the Spectrum Pipeline Act of 2024, legislation that would have renewed the FCC's spectrum auction authority and required it to auction for full-power commercial use at least 1,250 megahertz within 6 years.

House Hearing Should Prompt Action on Wireless Spectrum, FCC Auctions

On January 23, the House Subcommittee on Communications & Technology will hold a hearing titled "Strengthening American Leadership in Wireless Technology." The hearing will feature witness testimony addressing spectrum management, licensed versus unlicensed spectrum, spectrum auction authority, international harmonization, and radio access networks (RANs).

The hearing is important because next-generation wireless networks are vital to our nation's economic vitality and competitive. Also, the hearing is timely because there is an urgent need for more spectrum dedicated to commercial wireless use, particularly licensed spectrum and especially spectrum in the mid-band range (1 GHz to 7 GHz).

 

Wireless device connections and mobile data usage are rising sharply each year, with demand rising ever-higher in the years to come. Unfortunately, the U.S. supply of licensed spectrum is likely to fall short absent the reallocation of additional spectrum from government occupancy to private commercial use. At this moment, there is no spectrum waiting in the wings to be repurposed for commercial use, despite federal agencies using or at least occupying significant amounts of spectrum resources. To make matters more difficult, the FCC's general authority to conduct spectrum license auctions and issues licenses to auction bid winners lapsed in 2023. 

 

The 119th Congress and the Trump Administration should take decisive action to replenish the stock of mid-band spectrum and revive the Commission's auction authority. The first Trump Administration's National Spectrum Strategy stalled out, and the Biden Administration's National Spectrum has been criticized for its painful slowness and overstudying instead of producing results. Whatever has come before now, every available good option for fast-tracking and getting more spectrum into private use should be pursued and a re-stocked spectrum pipeline made into reality. 

 

The House Subcommittee's January 23 spectrum hearing memo is available here. Hopefully, the hearing will lead to prompt concrete action in the 119th Congress on spectrum and other important wireless policy issues. 

Commissioner Carr to Congress: Renew FCC's Auction Authority

As reported by Christopher Cole in Law360 (subscription required), Commissioner Brendan Carr seized the moment at the FCC's August Open Meeting and urged Congress to renew the agency's spectrum auction authority.

In a recent post to the Free State Foundation's blog, I once again noted the importance of the FCC's auction authority, which was allowed to lapse in March of this year. (I first addressed this topic in "Extending FCC Spectrum Auction Authority Is Essential to the 5G Race," a February 2023 Perspectives from FSF Scholars.)

Before voting to approve a Notice of Inquiry regarding non-federal spectrum usage, Commissioner Carr made a similar plea:

I'd be remiss if I didn't note today, while we have a number of some of the top congressional staffers in the room, to reiterate the call for Congress to reauthorize the FCC's spectrum auction authority. So I know it's August recess, Congress isn't in session, but if, over the August recess, you happen to find some good spectrum auction authority somewhere, we would be happy to put it to good use.

Chairwoman Rosenworcel responded by thanking him for "the shameless plug."

To view this interaction, please click here.

Congress Should Reinstate the FCC's Spectrum Auction Authority

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.