House Passes NDAA With Small Spectrum Provision, But Pipeline Still Empty

On December 11, the U.S. House of Representatives passed H.R. 5009, the Servicemember Quality of Life Improvement and National Defense Authorization Act for Fiscal Year 2025 ("NDAA"). Among the massive bill's contents, H.R. 5009 authorizes the FCC to conduct a spectrum license auction for the Advanced Wireless Services (AWS-3) bands, with auction proceeds of up to more than $3 billion going to fund the Secure and Trusted Communications Network Reimbursement Program. Also known as "rip-and-replace," the program reimburses small advanced communications service providers for expenses due to the removal, replacement, and disposal of communications equipment provided by Huawei or ZTE. 

Back in 2014, the FCC conducted Auction 97 for AWS-3 licenses, but 197 of those licenses were entangled in administrative processes and litigation. If H.R. 5009 becomes law, it would do good by enabling that valuable spectrum to be put to use. 

 

The AWS-3 spectrum license auction provision in H.R. 5009 appears reasonable and beneficial as far as it goes. But H.R. 5009's AWS-3 provision is a targeted measure involving only a small amount of spectrum. The bill would not address the larger issue of the FCC's lapsed general authority to conduct licensed spectrum auctions and issue licenses. Nor would it address the need for significant amounts of more spectrum to be put into the pipeline for repurposing and auctioning by the Commission to support next-generation commercial wireless services. 

 

In 2025, the 119th Congress needs to make the revival of the FCC's spectrum auction authority a priority and – in coordination with the incoming Trump Administration – hopefully authorize specific bands for repurposing and auction. 

CSIS Reiterates Importance of Spectrum to National Security

Recently published commentary from the Center for Strategic & International Studies (CSIS) makes familiar points regarding America's pressing need for additional, globally harmonized commercial spectrum – but also places the continuing spectrum-allocation impasse in a broader, geopolitical context characterized by serious national security and intelligence implications.

"Spectrum Allocations and Twenty-First-Century National Security," by James Andrew Lewis, echoes arguments raised by another CSIS scholar, Clete Johnson, that I summarized in an October 2024 post to the FSF Blog. Namely, that Congress must act quickly to renew the FCC's spectrum auction authority and work with the Department of Defense and other federal agencies to ensure that the same bands used in other parts of the world are made available for commercial use in the U.S.

The concern, according to Mr. Lewis, is China:

The United States is in a global competition with China over markets, rule setting, and technological leadership…. To remain competitive, the United States will need to adjust how it has allocated radio spectrum to emphasize commercial innovation. The government-centric spectrum allocations of the last century will need to change if we are not to fall behind. 

Specifically, U.S. policymakers must appreciate that, going forward, technological innovation by the commercial, rather than the government, sector is the key to national security in the twenty-first century: "[c]ommercial technologies underpin modern military strength." And that to facilitate that technological innovation, domestic commercial interests must have access to the same spectrum bands used in the rest of the world:

If the United States does not use a harmonized spectrum, it shrinks the economies of scale that trusted vendors need to compete with Huawei…. In simple terms, people will build devices to use specific spectrum bands for commercial purposes designated by the WRC. Essentially, if the United States does not use spectrum allocated everywhere else for commercial purposes, it will be handicapped in any competition.

In other words, U.S. policymakers must move beyond the antiquated notion that government control of certain bands, in and of itself, enhances our national security – and instead recognize that military might today hinges in large part upon America's ability to dictate the technological standards for mobile networks used worldwide. Commercial access to globally harmonized spectrum bands is critical to achieving that objective.

Mr. Lewis concludes with a warning: "[t]he timing for action is short, perhaps a year or two since a failure to act puts the United States at the cusp of a great strategic blunder that will let an ambitious China build the network that forms the backbone of the global economy."

Report Highlights Link Between Spectrum Policy and National Security

A new report published by the Center for Strategic & International Studies (CSIS) warns that absent a heightened focus on our national spectrum policy, "[t]he security of the United States as a market democracy is at stake." In the simplest of terms, online activity is only as secure as the underlying apps and network infrastructure over which it occurs. If that software and hardware is to come from trusted sources, policymakers must foster an environment in which America's mobile marketplace maintains a powerful say in global technology development, "especially as autocratic nations seek to dominate."

In Part 1 of "Concrete National Security Benefits of Spectrum Allocation for Commercial 5G," CSIS Strategic Technologies Program Senior Fellow Clete Johnson identifies two "difficult technical feats" that the U.S. must and can accomplish if it is to achieve the scale necessary to drive technology development down a secure and trusted path. The first is to better harmonize frequency use, as "[t]he more that U.S. spectrum use is harmonized with that of allies and global markets, the more scale trusted suppliers have for secure technology development." The second is to allocate sufficient spectrum so that capacity does not constrain the economic might of American consumers.

Harmonizing the frequencies allocated to 5G (and successor standards) is essential to achieving economies of scale because technology development is frequency specific: equipment developed for one band typically cannot be used in other bands. As the report points out, however, "the United States is becoming a mid-band spectrum 'island,' operating largely outside the core globally harmonized spectrum bands. If this trajectory continues, the U.S. technology ecosystem will be confined to a U.S.-only spectrum 'dialect' that lacks global influence and scale."

Allocating sufficient spectrum to satisfy growing mobile broadband demand, meanwhile, maximizes the economic ability of 350 million American consumers to shape global technology decisions. As the report explains:

U.S. wireless companies need sufficient spectrum resources to collaborate with like-minded nations in innovating and manufacturing advanced wireless technologies and components – including chipsets, software, radios, and more – for use in both the commercial and federal sectors…. The existing disparity between U.S. licensed mid-band spectrum allocations as compared to the rest of the world has become a major national security challenge, as it has created a platform for China to shape the near-term and future technology environment to its strategic advantage.

The report proposes several ways to address this situation. They include:

• Reframing the spectrum deficit as "an optimization challenge, not a scarcity problem."
• Moving from a "zero-sum" mindset that pits government and commercial uses against each other to a collaborative environment that promotes "static" and, in the longer term, "dynamic" spectrum sharing solutions.
• Restoring the FCC's spectrum auction authority.
• Aggressively pursuing harmonization opportunities, which may include the 7/8 GHz band, so that America speaks the same "frequency 'language'" as its allies.

The report's forthcoming Part 2 primarily will focus "on the importance of agile spectrum management capabilities in the context of electronic warfare."

FirstNet's Public Safety Communications Network Continues to Grow

On January 24, AT&T released its report for the fourth quarter of 2023. AT&T announced that the FirstNet nationwide public safety broadband network it constructed has increased its total connections to more than 5.5 million across 27,500 law enforcement and first responder agencies. FirstNet is overseen by FirstNet Authority, an agency within the NTIA.

The widespread adoption by law enforcement and first responder agencies of FirstNet and other enterprise networks is significant because it undermines the FCC's attempted partial rebranding of public utility regulation of residential mass-market retail broadband Internet access services as a vital public safety measure. The Commission's Notice proposing to reclassify broadband Internet access services as a public utility under Title II of the Communications Act even acknowledges that "much of the communications between public safety entities and first responders take advantage of enterprise-level dedicated public safety broadband services." Indeed, enterprise-level dedicated networks with quality-of-service guarantees are more ideally suited for government agencies such as emergency first responders. 

 

On December 14, 2023, the Free State Foundation filed public comments opposing Title II reclassification and imposition of public utility regulation on broadband Internet access services. FSF's comments called attention to the glaring disconnect between imposing public utility regulation on commercial broadband Internet access services in the name of national security and public safety when the military, law enforcement, and emergency responders rely heavily on dedicated networks. 

 

Also, in the Free State Foundation's reply comments, filed on January 17, 2024, we observed that "it is a weighty matter to impose government controls over private services and property catering to civilians in the name of national security and public safety." And thus, "[i]t is unlikely that Congress intended to alter the balance between public power and private rights through such an expansive reading of Title II." Our reply comments voiced agreement with the proposition that national security and public safety have never before been relied upon by the Commission as a justification for common carrier regulation of broadband.

 

For more on the empty national security and public safety rationale for regulating residential commercial broadband Internet services as public utilities, see FSF’s comments and reply comments. See also my October 2023 Perspectives from FSF Scholars, "Net Neutrality Regulation Is Not a Public Safety Measure."

House Bill Would Require FCC List of Foreign Adversary Ownership of Communications Infrastructure

On February 3, Reps. Elise Stefanik, Ro Khanna, and Mike Gallagher announced the reintroduction in the House of Representatives of the Foreign Adversary Communications Transparency (FACT) Act. The bipartisan FACT Act was originally introduced in the 117th Congress on October 25, 2022. The bill – which does not have a number as of this posting – is intended to provide greater transparency regarding foreign governmental influence and access to critical communications infrastructure in the U.S. According to Congresswoman Stefanik's press release:

[T]his bill would provide critical telecommunications transparency by requiring the Federal Communications Commission (FCC) to publish a list of companies who hold FCC authorizations, licenses, or other grants of authority an[d] ownership by foreign adversarial governments, including China, Russia, Iran, North Korea, Venezuela, and Cuba.

The FACT Act appears to be a common-sense measure that deserves full and fair consideration by Congress.  

Congress Passes Bill to Secure Communications Network Supply Chains from National Security Threats

On October 27, the Senate passed the H.R. 3919, the Secure Equipment Act of 2021. The lead sponsors of the legislation are Reps. Steve Scalise and Anna Eshoo. The House of Representatives passed the bill earlier this month, meaning that H.R. 3919 is going on to the White House for signature. Once signed into law, H.R. 3919 will shore up the FCC authority to withhold license authorization for equipment or services offered by companies deemed to pose a national security risk – such as companies linked to authoritarian China. The text of the enrolled bill for H.R. 3919 is available online.

NDAA Markup Should Steer Clear of FCC's Careful L-Band Order

Today, I posted the following tweet thread about the FCC's April 2020  order approving Ligado Networks' deployment of wireless services in the L-Band and the September 1, 2021 markup hearing scheduled for the National Defense Authorization Act (NDAA) for Fiscal Year 2022:

1) U.S. leadership on #5G is more important to the future of the free world than ever. @LigadoNetworks' planned 5G commercial wireless network using L-Band spectrum -- which has @FCC approval -- will play a vital role in ensuring that global leader on 5G is America, not China.

— Seth Cooper (@CooperFSF) August 30, 2021

3) @FCC's order approving Ligado Networks' L-Band use followed a careful process. It complied with APA, factored public comments, used staff engineering expertise + GPS safeguards. @FCC's decision should not be thwarted by last-minute amendments to NDAA via an uncareful process.

— Seth Cooper (@CooperFSF) August 30, 2021

China Task Force Recommends U.S. Strengthen its 5G Competitiveness and Security

On September 30, the House Republicans' China Task Force (CTF) released its report on the multi-faceted generational threat to the U.S. posed by the Chinese Communist Party (CCP). Included in the CTF report is the following key finding:

The U.S. and the CCP are in a global race for deployment of 5G wireless technology. The CCP seeks to increase its global power by building 5G infrastructure domestically and abroad to dominate standard-setting, technological development, and the global supply chain. The U.S. must promote private and public cooperation on rapid 5G deployment by private industry for consumer services and innovation, economic growth, and national security. 

The CTF rightly emphasizes that "U.S. 5G deployment is driven entirely by the private sector" – as opposed to being government-driven as in communist China. The CTF report further emphasizes that "[s]ecuring U.S. networks and ensuring our allies take similar action are crucial components to maintain U.S. leadership in technology and protect the privacy of all Americans." 

Several recommendations for addressing these concerns are included in the CTF report, along with lists of bills that have been introduced in Congress and that would implement those recommendations. (Although the CTF is comprised of only Republican House members, two-thirds of the legislative bills cited in the CTF report have bipartisan support.) One such recommendation is that Congress "pass legislation to streamline fixed and wireless communications network permitting processes at the federal, state, and local level to ensure all Americans are connected." As the CTF report explains: "[r]educing U.S. regulatory barriers will speed up deployment of broadband and 5G communications infrastructure, and that will promote a market for secure solutions not made in China." 

 

Additionally, the CTF report includes this key finding:

U.S. leadership in advanced manufacturing across industrial sectors is imperative to put the U.S. on the leading edge of new products, processes, and services, as the CCP seeks to move up the value chain away from its traditional reliance on mass production of low-end goods to more high-tech manufacturing.

The CTF report recommends that the U.S. work with the United Kingdom as well as other nations to form a D-10 group of leading democratic nations that will focus on "developing and deploying 5G and subsequent generations, addressing 5G mobile communications and vulnerable supply chains, and leveraging technical expertise" in emerging technologies for the benefit of democratic nations. 

 

The CTF report is available online here.

NTIA Seeks Input on National 5G Security Strategy

As I noted in an April 6 blog post, President Trump signed into law the Secure 5G and Beyond Act of 2020 on March 23. That Act directs the Administration to develop a 5G security implementation plan within 6 months of its enactment.

The White House initiated that process with the same-day release of the "National Strategy to Secure 5G," a framework document organized around four lines of effort:

• Facilitating the private-sector led rollout of 5G;
• Defining core security principles in response to potential risks;
• Addressing risks to economic and national security interests; and
• Working with like-minded countries to develop and deploy secure and reliable standards and infrastructure.

Late last month, NTIA solicited public input on that implementation plan. Its request for comment, which is organized around the same four lines of effort noted above, presents a number of specific questions. For example:

• With respect to facilitating the domestic rollout out of 5G, how can the U.S. Government further motivate the commercial ecosystem (equipment and chip manufacturers, software developers, cloud providers, system integrators, network providers, etc.) to increase R&D and testing? What specific goals should it prioritize?
• In assessing risks and identifying core security principles, what factors should the U.S. Government consider in evaluating potential security gaps?
• In addressing risks to economic and national security, what opportunities does 5G deployment create for U.S. companies?
• In promoting the responsible global development of 5G, how can the U.S. Government best encourage the domestic private sector to participate in standards development?

Comments are due on or before June 18.

ITIF Report Highlights Potential Role of Network Functions Virtualization in Race to 5G

On April 27, the Information Technology & Innovation Foundation (ITIF) published a paper by Doug Brake on 5G. “A U.S. National Strategy for 5G and Future Wireless Innovation” addresses the transformative role that the next generation of wireless technology will play in our economy, the proper role of government in its timely deployment, and, of course, network security.

This report provides an informative deep dive into all things 5G: its foundational technologies; how it will provide both a quantitative improvement in mobile performance (e.g., higher speeds and lower latency) and a qualitative expansion of use cases (e.g., industrial automation and smart cities); the need to promote not just deployment but also demand-driven adoption (think “killer apps”); the appropriate policies to facilitate continued American global leadership (e.g., spectrum clearing, improved access to rights-of-way, spending on R&D, and safeguarding standards-setting processes); and how best to address security concerns related to the supply chain.

There has been much attention paid to this last topic. In particular, the Trump Administration, Congress, and the FCC all have raised alarms regarding Chinese telecommunications equipment manufacturer Huawei, the early leader in 5G hardware. Policymakers have concerns – relating, among other things, to espionage, network sabotage/shut-down, and consumer privacy –about operators incorporating into their networks purpose-built hardware (and enabling software) from a company with ties to the Chinese government. Unfortunately, at the moment there aren’t a lot of viable alternative vendors. Nokia, Ericsson, and Samsung are potential suppliers, but at this time they do not appear able to compete at scale.

That’s where Network Functions Virtualization (NFV) enters the picture. Broadly speaking, NFV does the hard work in software running on off-the-shelf servers. As Mr. Brake explains:

In the traditional mobile networking approach, the core network includes a variety of hardware appliances designed for specific functions…. [NFV] represents an important disruption of this system, wherein operators are transitioning to general-purpose servers and switches throughout the network instead of purpose-built hardware that must be individually installed and configured. The functionalities can then be provided in software….

NFV can lead to lower costs, as off-the-shelf servers benefit from greater economies of scale than customized devices. More importantly, it has positive national security implications. NFV plays to the American tech sector’s proven strengths in software development, which notably can be accomplished at a relatively fast pace. Thus, rather than scrambling to play catch up on the hardware side, NFV creates an opportunity for U.S. companies to overcome, through a sustained commitment to rapid software innovation, whatever first-mover advantages Huawei may have gained.

The White House planned to host a 5G summit last month that would haven taken up the topic of NFV. Due to the novel cornonavirus, however, it was cancelled. Nevertheless, I expect the focus on software-driven solutions to increase steadily going forward.

White House Releases "National Strategy to Secure 5G"

On Monday, March 23, President Trump signed into law the Secure 5G and Beyond Act of 2020. That legislation directs the Administration, within 180 days of enactment, to develop a plan that ensures the security of domestic 5G networks; provides allies with technical assistance as they work to harden their own 5G networks; and protects the competitiveness of U.S. companies, the privacy of consumers, and the integrity and impartiality of standards-setting bodies.

The same week, the White House initiated that process by releasing the "National Strategy to Secure 5G," a framework document that defines the following four lines of effort:

One: facilitating the private-sector led rollout of 5G in the United State by building upon the FCC's 5G Fast Plan and NTIA's National Spectrum Strategy.

Two: defining core security principles for 5G capabilities and infrastructure in response to potential risks, which may be economic or national security in nature. Core security principles include best practices in cybersecurity,  supply chain risk management, and public safety, and will be synchronized with other security principles, such as the "Prague Proposals."

Three: addressing risks associated with the worldwide development and deployment of 5G infrastructure by (a) ensuring supply chain security, and (b) by taking actions necessary to protect U.S. national security interests from 'high-risk' vendors (that is, those owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary that pose an undue or unacceptable risk) that build upon Executive Order 13873 (issued May 15, 2019).

Four: working with like-minded countries to promote (a) the responsible global development and deployment of 5G technology and security principles, (b) U.S. leadership in standards setting, and (c) the availability of secure and reliable equipment and services.

5G will drive forward the economy in the years ahead. Therefore it is encouraging to see Congress and the Administration take proactive steps to safeguard next-generation wireless infrastructure and ensure continued American technological leadership in this space.

Op-Ed Connects Federal Regulatory Policy and 5G to National Security

In a just-published op-ed at Townhall.com, Law professor and national security expert incisively addresses the importance of pro-innovation and pro-market policy in advancing 5G networks, including the T-Mobile/Sprint merger, in the context of U.S. economic and national security interests. Professor Jaffer's op-ed, "Stoking Innovation in a Trade War: Reestablishing American Leadership in Critical Technologies," is worth a careful read.