House Energy and Commerce Committee Chairman Frank Pallone Jr. (D., N.J.) and communications and technology subcommittee Chairman Mike Doyle (D., Pa.) launched an inquiry today into the legality of and political motivations behind the Department of Defense’s request for information on the deployment of 5G networks for its domestic operations.
The RFI, which was released last month (TR Daily, Sept. 18), focuses on sharing spectrum while asking a question on "[h]ow could DoD own and operate 5G networks for its domestic operations? What are the potential issues with DoD owning and operating independent networks for its 5G operations?"
Reps. Pallone and Doyle wrote the Government Accountability Office today to ask it to evaluate whether DoD "has the legal authority to construct, operate, or maintain a commercial communications network or lease its assigned electromagnetic spectrum (‘spectrum’) to private entities to provide commercial communications service. We believe DoD has limited or no legal authority to do so," they said.
"It is our understanding that, by law, the NTIA is tasked with managing federal spectrum uses, but may not permit anyone to use government spectrum for a non-government purpose unless that use has been authorized by the FCC," the lawmakers added. "And while the law permits the NTIA to allow non-federal licensees to use federal spectrum in certain special circumstances, the FCC is still required to make all ‘allocation and licensing decisions.’ In addition, in instances in which there may be mutually exclusive applications for spectrum licenses, the FCC is required by law to conduct a spectrum auction."
They also suggested that the Anti-Deficiency Act and Miscellaneous Receipts Act may restrict any DoD effort to lease spectrum.
"In light of the issues described above, we respectfully request that GAO provide complete legal analyses in response to the following questions: 1. Does the Anti-Deficiency Act prohibit, or otherwise limit, the DoD’s ability to construct, operate, or maintain a commercial communications network or lease the spectrum assigned to the DoD to private entities to provide commercial communications service or for any other purpose? 2. Does the Miscellaneous Receipts Act prohibit, or otherwise limit, the DoD’s ability to receive money or in-kind services as payment for constructing, operating, or maintaining a commercial communications network or for leasing the spectrum assigned to the DoD to private entities to provide commercial communications service? 3. Under the Communications Act and the NTIA Reorganization Act, is the NTIA permitted to allow DoD to construct, operate, or maintain a commercial communications network or lease the spectrum assigned to the DoD to private entities to provide commercial communications services without being granted an authorization by the FCC? Would a spectrum auction potentially be required? 4. Are there any other legal authorities not listed here that would permit, prohibit, or otherwise limit DoD’s ability to construct, operate, or maintain a commercial communications network or lease the spectrum assigned to the DoD to private entities to provide commercial service? 5. What changes in law would be required to allow DoD to construct, operate, or maintain a commercial communications network or lease the spectrum assigned to the DoD to private entities to provide commercial service if those activities are not permitted under current law?"
Chairmen Pallone and Doyle also wrote acting National Telecommunications and Information Administration head Adam Candeub to ask him about NTIA’s role in DoD’s RFI, to see whether NTIA had been lobbied about the matter, and to reiterate their complaints about the Trump administration’s spectrum management processes, which have seen federal agencies go around NTIA to lobby the FCC and Congress on spectrum matters.
"The NTIA Organization Act tasks the NTIA with managing federal spectrum uses. We are concerned, however, that DoD’s recent activities ignore the NTIA’s statutory role and undermine the NTIA’s ability to effectively represent the interests of other federal agencies and further national spectrum policy," Reps. Pallone and Doyle said. "To date, the Trump Administration’s spectrum management practices have been incoherent and erratic, which puts the nation’s 5G future at risk. Without proper guidance and leadership from the NTIA, spectrum-dependent federal agencies have tried to take matters of spectrum management into their own hands. Without firm leadership at the helm of the NTIA, agency interactions on spectrum have been chaotic, and the successful implementation of a forward looking spectrum policy for the benefit of all Americans has been stymied—despite overwhelming bipartisan support.
"We recognize that during this Administration, well-coordinated federal spectrum management processes have broken down. Rather than relying on the NTIA as the President’s designated federal spectrum manager, many of the federal agencies with spectrum allocations have sought to usurp NTIA’s management authority by engaging directly in various Federal Communications Commission (‘FCC’) dockets affecting spectrum uses, or, in the case of DoD, attempted to use legislative means to circumvent the NTIA’s authority," the letter continued. "On several occasions, these agencies have presented policy positions at odds with NTIA or the FCC. Inefficient management and chaotic processes have ensued, culminating in policy stalemates in several spectrum bands that had been previously identified for shared use. That’s why, earlier this year, on a bipartisan basis, we requested a Government Accountability Office examination of the NTIA’s spectrum management process [TR Daily, Jan. 24].
"It appears now, through this RFI, that DoD is attempting to usurp the NTIA’s authority once again," the lawmakers argued. "The RFI seeks comment on various issues, including how DoD can ‘own and operate 5G networks for its domestic operations.’ The RFI also asks whether DoD should ‘consider spectrum leasing as an alternative to reallocation.’ Such statements reflect a lack of understanding with regards to spectrum management. No government agency owns spectrum. Users are allocated spectrum based on need, and if there is a higher use, spectrum can and should be reallocated."
"Apart from our substantive policy concerns regarding DOD’s recent action, we are also concerned about the underlying motivation for this RFI," the letter said. "We have heard reports that the suddenness of this request and the short turnaround timeframe have been prompted directly by senior White House Officials. We have also heard reports that the White House has instructed DoD to proceed immediately to a Request for Proposal (‘RFP’) in order to move forward toward a national 5G network. According to press accounts, several political operatives or lobbyists with close ties to President Trump or his staff, including Karl Rove, Peter Thiel, Newt Gingrich, and Brad Parscale—are pushing for the seismic shift in spectrum policy contemplated by the RFI. These reports also suggest these Republican operatives are working for the benefit of a specific company, Rivada, Inc., which has long championed a national network that Rivada would construct and operate using its sharing technology."
Reps. Pallone and Doyle asked Mr. Candeub to respond to a number of questions by Oct. 16 concerning whether DoD contacted NTIA before releasing its RFI; whether NTIA has knowledge that a DoD RFI covering the 3.1-3.55 gigahertz band has been reportedly drafted; whether Mr. Candeub agrees with FCC Commissioners’ opposition to a "nationalized 5G network"; whether the White House has contacted NTIA about the RFI; whether anyone from Rivada has contacted NTIA; whether the Trump campaign, including Mr. Parscale, has contacted NTIA; and whether Messrs. Rove, Thiel, or Gingrich have contacted NTIA.
"We thank Chairmen Pallone and Doyle for their leadership on this important issue," Kelly Cole, senior vice president-government affairs for CTIA, said today. "Private-sector solutions and free-market principles are critical to ensuring America leads in 5G, and it’s important to take a hard look at the dangers of nationalizing our wireless networks."
Rivada Networks LLC, which lost out to AT&T, Inc., for the First Responder Network Authority (FirstNet) contract (TR Daily, March 30, 2017), has touted the benefits of a nationwide open access wholesale network built with private funding. Rivada has a system that it says will enable the monetization of excess capacity through a dynamic spectrum exchange.
Mr. Rove, who was a top aide to President George W. Bush, has advised Rivada Chief Executive Officer Declan Ganley and lobbied for the company.
Mr. Parscale, who until recently was the Trump campaign’s manager, has expressed support for a nationwide wholesale 5G network, as has former House Speaker Gingrich, who has been an informal adviser to President Trump. Rivada has said that it has never paid or retained Messrs. Parscale or Gingrich.
Mr. Thiel is a German-American billionaire entrepreneur who co-founded PayPal Holdings, Inc., and other companies. "One of Thiel’s investment funds made a small investment in Rivada, probably almost five years ago now. That is the extent of our ‘relationship,’" Brian Carney, senior vice president-corporate communications for Rivada, told TR Daily today.
Rivada issued a news release yesterday saying it opposes the deployment of a nationalized 5G network.
"Like vampires, some bad ideas just won't die. Also like vampires, some bad ideas exist only in the imaginations of those who believe in them," the company said. "Rivada Networks does not believe in vampires, and it does not support nationalizing ‘5G,’ 5G networks, or anything else. It even opposes the nationalization of radio spectrum, which took place in 1927. It is Rivada's firm position that this egregious assault on common-law property rights should be reversed."
The company added, "Yet we keep hearing that someone, somewhere, wants to nationalize ‘5G.’ Often, that goal is attributed to Rivada, but we know that isn't true. So we want to add our voice to those condemning, in the strongest terms, anyone planning to nationalize 5G in America. Whoever they may be. Assuming they exist."
Rivada said that it is "announcing the launch of ‘Americans Against Nationalization.’ Americans Against Nationalization will refuse donations from AT&T, Verizon or T-Mobile because we wouldn't want their cash to corrupt our mission. Americans Against Nationalization will direct attention to, and expose, any attempts by government to nationalize anything. It will also expose any fraud trying to fake claims of ‘nationalization’ as these are an insult to the very real victims of nationalization throughout the world."
An NTIA spokesman said the agency received today’s letter from Reps. Pallone and Doyle but that it had no further comment on it. A DoD spokesman did not reply to a request for comment on the letters sent today.
But Fred Moorefield, DoD's deputy chief information officer-command, control, and communications, recently called criticism of the RFI "unfair," saying that that DoD asked the same questions concerning 4G deployment (TR Daily, Sept. 23). "This isn’t a new question," he said. —Paul Kirby, [email protected]
MainStory: Congress WirelessDeployment NTIA FCC
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