After FCC Auction Authority Extension, Senate Should Pass Spectrum Bill

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. 

Congress Should Direct Repurposing of Specific Spectrum Bands for Commercial Use

Today, August 2, the Senate Commerce Committee held a hearing on "The Future of Spectrum." Speakers testifying at the hearing spotlighted pressing wireless spectrum issues, including renewing the FCC's spectrum auction authority, repurposing more mid-band spectrum for commercial use, and ensuring better cooperation between agencies on spectrum policy. 

A key point made at the Senate Commerce Committee hearing was that renewal of the Commission's authority should be connected to Congressional directives that specific spectrum bands be repurposed and auctioned for private commercial use:

@CTIA Prez & CEO Meredith Attwell Baker @SenateCommerce hearing: Spectrum policy is out-of-balance in mid-band, with 2/3 held by govt. Lower 3 GHz, 7-8 GHz, and 4 GHz bands should be the immediate focus for maximizing amount of commercial licensed spectrum. #FutureofSpectrum

— Seth Cooper (@CooperFSF) August 2, 2022

Mandates by Congress regarding specific bands will ensure that the agencies take action and that the spectrum is actually repurposed. 

 

The Senate Commerce Committee hearing was particularly timely, as the ongoing 2.5 GHz band spectrum license auction (Auction #108) is the last near-term auction on the FCC's plate, and the House of Representatives passed the Spectrum Innovation Act (H.R. 7624) on July 27. As observed in my July 28 blog, the Spectrum Innovation Act would confer on the Commission an 18-month extension of its spectrum auction authority, which currently is set to expire later this year. The bill also would direct NTIA and FCC to examine and repurpose for public auction the next swath of spectrum in the lower 3 GHz band. Last week, Free State Foundation President Randolph May commended the House's passage of the bill, which is essential to replenishing the spectrum pipeline for next-generation wireless services.

Now it's the Senate's turn to pass legislation that will ensure that the future of spectrum will promote commercial wireless services, the American economy, and jobs. That legislation should extend the FCC's spectrum license auction authority and also mandate the repurposing of lower 3 GHz band as well as other specific bands for commercial use.