Lawmakers Reach Agreement on FCC Reauthorization, Spectrum Bill
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Friday, March 2, 2018

Lawmakers Reach Agreement on FCC Reauthorization, Spectrum Bill

Leaders of the House Energy and Commerce and Senate Commerce, Science, and Transportation committees announced today that they have reached an agreement on legislation that would reauthorize the FCC and include the MOBILE NOW Act (S 19), which the Senate passed last August (TR Daily, Aug. 3, 2017).

The House is scheduled next Tuesday to consider under suspension of the rules an amended version of the RAY BAUM’s Act (HR 4986), which the House Commerce Committee approved last month by voice vote (TR Daily, Feb. 14).

The amendments would add to HR 4986 an amended version of the MOBILE NOW Act as well as language from the proposed FCC Reauthorization Act of 2016 (S 2644), which was approved by the Senate Commerce Committee in the 114th Congress (TR Daily, April 27, 2016).

Among other things, the compromise legislation would reauthorize the FCC for the first time in more than a quarter century; implement some agency reforms; authorize additional funding for the post-incentive auction repacking of full-power TV stations as well as authorize funding for low-power TV, TV translator, FM radio stations, and consumer education; and allow the FCC to put auction deposits into the U.S. Treasury rather than an interest-bearing account, which would clear the way for the agency to resume holding auctions. FCC Chairman Ajit Pai said this week that a legislative fix to the auction deposit problem is needed by May 13 in order for the FCC to hold an auction of 28 gigahertz band spectrum in November (TR Daily, Feb. 26).

“This legislation, combining provisions that have previously passed both the House and Senate, does what no legislation has done in 28 years — it reauthorizes the FCC and includes provisions that help make sure that the Commission is transparent, efficient, and ready for the 21st century communications landscape,” said a joint statement from Senate Commerce Committee Chairman John Thune (R., S.D.) and ranking member Bill Nelson (D., Fla.) and House Commerce Committee Chairman Greg Walden (R., Ore.) and ranking member Frank Pallone Jr. (D., N.J.).

“This bipartisan, bicameral product puts consumers first and solidifies the nation’s critical telecommunications infrastructure, giving the U.S. a global edge in the race to 5G and improving internet services across the country,” the lawmakers added. “Importantly, it includes spectrum legislation that passed the Senate unanimously last year and authorizes reimbursement for broadcasters who were displaced in the successful incentive auctions. We look forward to continued bicameral, bipartisan work to make sure RAY BAUM’s Act [HR 4986] is signed into law.”

Like HR 4986 as approved by the House Commerce Committee, the amended bill does not have any authorizing levels for the additional repacking funds.

But lawmakers have agreed to an additional $1 billion: $750 million for full-power TV stations, $150 million for LPTV stations and TV translators, $50 million for radio stations, and $50 million for an FCC consumer education fund, a House aide and broadcast industry source told TR Daily today. Congress already has reserved $1.75 billion for TV repacking, but those funds won’t be adequate.

Lawmakers are also trying to get the language of HR 4986 into omnibus appropriations legislation that Congress will consider this month (TR Daily, Feb. 27).

The modified bill omits the FCC Process Reform Act (HR 290), except for language to continue a congressional exception to the Anti-Deficiency Act for FCC Universal Service Fund expenditures. The FCC Process Reform Act passed the House last year (TR Daily, Jan. 23, 2017) and had been in HR 4986, the bill that cleared the House Commerce Committee last month. Among the provisions in HR 290 that were omitted from the modified bill unveiled today were those requiring the FCC to post documents 21 days before they are considered and permitting a bipartisan group of three Commissioners to meet. Mr. Nelson has opposed the process reform provisions, arguing that they would hamstring the Commission.

Provisions included in the compromise bill from the Senate’s FCC reauthorization legislation would (1) amend “the Communications Act of 1934 to modify the terms of office and vacancies for FCC Commissioners”; (2) require “the Commission to send any budget estimates, requests, legislative recommendations, testimony, and comments on legislation to Congress if they are sent to the Office of Management and Budget or to the President”; (3) prohibit “the Commission from modifying, amending, or changing its rules or regulations for universal service support payments regarding single connection or [primary] line restrictions on universal service support payments”; (4) require “the Commission to include a consumer disclaimer in any press release regarding a notice of apparent liability that states that the issuance of a notice of apparent liability should be treated only as an allegation and that any proposed forfeiture penalty represents the maximum penalty that the Commission may impose”; and (5) require “the Commission to make publicly available an estimate of what systems of competitive bidding may be used in the next year and which bands of frequencies the Commission expects to be included in each system of competitive bidding. This section also requires the Commission to report to Congress a justification of its use of proceeds retained for the costs of developing and implementing the program,” according to a section-by-section summary of the bill.

Among other things, the MOBILE NOW Act would require an additional 255 megahertz of spectrum to be identified for fixed and mobile broadband services by 2022, generally codifying an Obama administration executive order released in 2010 to make 500 MHz available within a decade. Of the 255 MHz, at least 100 MHz below 8 gigahertz would have to be for unlicensed use, 100 MHz below 6 GHz for licensed use, and 55 MHz below 8 GHz for either unlicensed, licensed, or both. It also would identify mid- and high-band spectrum to be studied for commercial use, including bands already eyed by the FCC. And it seeks to make it easier to deploy broadband infrastructure on federal lands through the streamlining of the application process and ensuring timely agency action on applications.

The MOBILE NOW Act language added to the House bill varies somewhat from the version approved by the Senate last year. For example, the deadlines for some FCC actions have been extended and a number of millimeter-wave bands included in the earlier version of the legislation have been removed from the bill, either because the FCC has acted on them or decided it could not pursue reallocation. Lawmakers left in a requirement that the FCC consider rules for the 42-45 GHz band, which the FCC has studied.

Other spectrum of great interest to the wireless industry, the 3.7-4.2 GHz band — which the FCC is studying in its mid-band proceeding (TR Daily, Aug. 3, 2017) — is still in the bill, as is the 3100-3550 MHz band, which is also of interest to the industry. Earlier this week, the National Telecommunications and Information Administration announced that the Department of Defense planned to do a detailed study of the 3450-3550 MHz band to see if it could be repurposed for commercial wireless use (TR Daily, Feb. 26).

Other changes in the bill involve specific band ranges where spectrum would have to be freed up. For example, the 100 MHz of unlicensed spectrum and 55 MHz of either or both licensed and unlicensed would have had to be below 6 GHz in the earlier legislation rather than 8 GHz in this bill.

Also, the new bill omits a provision for common fees for siting facilities on federal lands that had been in the earlier measure. And a national broadband facilities asset database would be housed at the General Services Administration rather than the White House Office of Science and Technology Policy. Unlike the earlier bill, this bill also requires the Transportation secretary to adopt regulations to ensure that states receive “dig once” funds.

The wireless and broadcast industries welcomed today’s announcement of the agreement on the legislation.

“Senators Thune and Nelson, and Representatives Walden and Pallone have demonstrated clear bipartisan leadership in reaching agreement on the House’s RAY BAUM’S Act and we look forward to its swift passage in both chambers,” said Meredith Attwell Baker, president and chief executive officer of CTIA. “The inclusion of MOBILE NOW and the auction deposits provisions will ensure the FCC has the necessary authority to hold spectrum auctions in 2018, which is vital to the US winning the global race to 5G. We are hopeful that this same bipartisan approach will deliver the spectrum pipeline and infrastructure reform we will need to lead the world in wireless.”

Competitive Carriers Association President and CEO Steve Berry said, “I commend Chairman Thune, Ranking Member Nelson, Chairman Walden and Ranking Member Pallone for their bipartisan, bicameral work to advance several telecommunications policy priorities. The time has come to enact both MOBILE NOW and RAY BAUM’S Act, and their work will make that happen. This legislation includes important provisions that will benefit consumers and carriers across the country, especially those in rural areas.”

“The global race to 5G is well underway, and the U.S. must ensure that its laws and regulations keep pace with rapid changes in technology. Today’s joint announcement from the House & Senate Commerce Committees to re-authorize the FCC via the RAY BAUM's Act, and to promote wireless technologies via the MOBILE NOW Act represents a significant milestone in advancing next generation networks,” said Cinnamon Rogers, senior vice president-government affairs for the Telecommunications Industry Association. “Today's combined agreement would remove outdated FCC reporting requirements, fix the upfront payment issue for spectrum auctions, make additional spectrum available for both licensed and unlicensed use, and promote wireless facilities deployment, among other key provisions. TIA urges Congress to enact this agreement into law as quickly as possible, including through incorporation into the FY2018 omnibus appropriations bill.”

“NAB applauds Chairmen Walden and Thune and Ranking Members Pallone and Nelson on reaching this agreement, a significant step towards fully reimbursing broadcaster ‘repack’ relocation expenses. We also appreciate the leadership of Senators [Jerry] Moran [R., Kan.], [Brian] Schatz [D., Hawaii] and their cosponsors whose Viewer and Listener Protection Act demonstrated bipartisan consensus to solve this critical issue,” said Gordon Smith, president and CEO of the National Association of Broadcasters. “A truly voluntary incentive auction means tens of millions of Americans who rely on local TV and radio stations — as well as low-power TV stations and translators — are not unfairly burdened by the repack. America’s hometown broadcasters fully support swift passage of RAY BAUM’s Act and remain optimistic that appropriators will include full repack relocation funding in the final omnibus spending bill.” —Paul Kirby, paul.kirby@wolterskluwer.com

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