TR Daily Thune, Schatz Defend FCC’s Spectrum Authority, Expertise
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Thursday, July 23, 2020

Thune, Schatz Defend FCC’s Spectrum Authority, Expertise

Senate communications, technology, innovation, and the Internet subcommittee Chairman John Thune (R., S.D.) and ranking member Brian Schatz (D., Hawaii) today defended the FCC’s authority and expertise concerning spectrum management in the wake of attacks from other federal agencies and the private sector for its order approving a license modification to allow Ligado Networks LLC to deploy a nationwide broadband network in the L-band.

The controversy over the Ligado item, which was adopted in April (TR Daily, April 20), is just the latest example of disputes between the Commission and other agencies on spectrum issues, with another prominent one coming last year over the technical rules the FCC adopted for the 24 gigahertz band, regulations that other agencies complained would result in harmful interference to passive satellite systems in adjacent spectrum.

“With respect to commercially-licensed spectrum, in my view, it is essential the FCC is allowed to rely on the independent technical and legal expertise of its bureaus and staff and remain the sole expert agency to regulate non-federal uses of spectrum, as directed by its statutory authority through the Communications Act,” Sen. Thune said in an opening statement at a spectrum hearing today.

He acknowledged that “[t]he reviews of spectrum usage rights undertaken by the FCC are rarely simple. I appreciate Chairman [Ajit] Pai’s efforts to make more spectrum available for licensed and unlicensed use and the entire Commission’s focus and trust in the technical analysis of its engineers to make spectrum decisions in the interests of our national and economic security.

“Commercial spectrum usage rights, whether through FCC-issued licenses or FCC-adopted rules, provide the certainty necessary to incentivize and enable returns on massive investments in research and development, manufacturing, infrastructure deployment, and innovations in applications dependent upon commercial spectrum,” Mr. Thune added.

He added that the National Telecommunications and Information Administration, in coordination with other federal agencies through the Interdepartment Radio Advisory Committee (IRAC), should “continue to improve the efficiency of federal spectrum.”

In his opening statement, Sen. Schatz said, “Spectrum is an often-discussed issue in Congress, but the FCC ultimately has expertise and authority to make important technical decisions on commercial spectrum sharing and allocation.”

Without such a regime, “our spectrum policies may fall subject to politics rather than be rooted in sound data and engineering analysis,” the senator added. “As the expert technical agency, it is critical that the FCC continues to operate in a non-biased way so that our spectrum resources provide the most benefit to our country.”

However, he said the Commission must weigh the views of incumbents, including military, public safety, and utility spectrum users, and safeguard them from the potential harmful impacts of new users.

During today’s hearing, witnesses stressed the importance of freeing up additional mid-band spectrum, especially channels used by the Department of Defense and other agencies, such as the 3.1-3.55 gigahertz band for 5G. They also called on the Trump administration to release a long-delayed national spectrum strategy.

The witnesses noted that the 3.5 GHz band Citizens Broadband Radio Service auction that started today is the first in the U.S. to offer mid-band frequencies (see separate story). Being sold is 70 megahertz of spectrum. The Commission also plans to commence an auction of 280 MHz of C-band spectrum in December.

Witnesses also emphasized the need for better coordination and cooperation between the FCC and NTIA on spectrum issues, arguing that an existing memorandum of understanding has not been effective enough, and one called for stronger White House involvement to referee spectrum disputes between agencies.

Senators and witnesses repeatedly mentioned several bills that are designed to improve spectrum management and make it easier to repurpose government spectrum or facilitate sharing.

They are the SPECTRUM NOW Act (S 1968), which was introduced by Senate Commerce, Science, and Transportation Committee Chairman Roger Wicker (R., Miss.) and Sen. Schatz (TR Daily, June 25, 2019); the Spectrum IT Modernization Act of 2020 (S 3717), which was introduced by Sens. Wicker and ranking member Maria Cantwell (D., Wash.) and Senate Armed Services Committee Chairman Jim Inhofe (R., Okla.) and ranking member Jack Reed (D., R.I.) (TR Daily, May 14); and the Government Spectrum Valuation Act (S 1626), which was introduced by Sen. Mike Lee (R., Utah) (TR Daily, May 23).

S 1968 would allow federal agencies to access Spectrum Relocation Fund (SRF) money to study increased spectrum efficiency and spectrum relocation or sharing. It also would require the submission of a plan to repurpose the 3.45-3.55 GHz band for commercial use. S 3717 would require NTIA to submit to Congress a plan to modernize its information technology systems for managing spectrum. S 1626 would require NTIA, in coordination with the FCC and the Office of Management and Budget, to regularly determine the value of spectrum assigned to government agencies.

“Internationally, our 5G competitors have already made an average of nearly 200 megahertz available for commercial use between 3.3 and 3.6 GHz – compared to 0 megahertz in the U.S. (albeit with the 3.5 GHz auction underway that includes 3.55-3.6 GHz),” said Tom Power, general counsel and senior vice president of CTIA. “The 3.1-3.55 GHz band is a crucial near-term opportunity for the U.S. to make licensed mid-band spectrum available, and if the U.S. moves quickly, it has the opportunity to be a key benchmark band for U.S. leadership.”

Mr. Power also cited the potential of freeing up 100 MHz in the 1.3 GHz and 1.7 GHz bands.

Mr. Power also stressed the need for a reliable spectrum pipeline in the future, saying that five nations are expected to bring 600 MHz of licensed mid-band spectrum to market by 2022 – nearly double the spectrum to be licensed through the CBRS and C-band auctions.

Mark Gibson, director-business development and spectrum sharing policy for CommScope, Inc., urged the release of a national spectrum strategy, which he said “should incorporate newer, dynamically-coordinated sharing regimes, building upon the innovative approaches in the CBRS and 6 GHz band.” He also stressed the importance of early collaboration between private-sector and government, including DoD, representatives on spectrum issues.

President Trump signed a memorandum in 2018 directing the executive branch to develop a national spectrum strategy (TR Daily, Oct. 25, 2018). It was due last year.

Mr. Gibson also touted the potential of the 3.1-3.55 GHz band and said it is necessary to make spectrum available more quickly. “Eight years to commercialize a band like CBRS is simply too long,” he added.

Michael Calabrese, director of the Wireless Future Project at the New America Foundation’s Open Technology Institute, also stressed the need to look for creative ways to share spectrum, such as the frameworks for the CBRS and 6 GHz bands. However, he said the FCC should increase the power levels for indoor-only 6 GHz band devices and authorize very low power devices. Mr. Calabrese also reiterated his support for opening up at least some of the 5.9 GHz band to Wi-Fi use and considering relocating auto safety applications to the “nearly vacant” 4.9 GHz band. He also noted support from public interest and industry groups for considering allowing 5G deployment in the 12.2-12.7 GHz band.

Mr. Calabrese also said “the White House needs to drive and finalize a National Spectrum Strategy” and said the White House should “engage directly in guiding and mediating disputes that arise when the FCC and NTIA cannot reach a consensus.”

He also argued that the spectrum MoU between the FCC and NTIA “should be updated and enhanced.” He added that the existing “15-day coordination period for routine items leaves gaps and potential discord on non-routine items.”

Mr. Calabrese also said that “the coordination and consultation process itself needs to be more transparent to stakeholders. It is typically not clear outside the FCC and NTIA to what degree there are concerns about a proposed policy or what technical information is being exchanged. As part of this, the MOU should require that federal agencies – or NTIA on their behalf – monitor and file comments and technical studies in the FCC’s notice and comment docket in a timely manner (in redacted form, if necessary). Too often federal agency concerns come to light at the 11th hour, after the FCC and the private sector have finished building a public record. While these early filings should not replace the requirement for consultation with NTIA after the FCC evaluates the record and reaches a tentative conclusion, it does ensure that agencies, industry and other stakeholders are not blindsided by last-minute objections never fully or publicly documented.”

Federal agencies opposed to the Ligado decision have argued that they did not have adequate notice of the FCC’s draft Ligado order, although Mr. Pai noted that the Commission gave the IRAC additional time to review it.

Roslyn Layton, a visiting researcher at Aalborg University in Denmark, emphasized the benefits of turning to “market-based allocations of spectrum. The first best policy choice for consumers is to privatize the spectrum itself and sunset administrative allocation. However, the second-best policy choice of the introduction of a market-based pricing system while regulators remain has been a success in the commercial domain. The template for federal spectrum allocation is essentially unchanged for a century. Bringing pricing discipline to federal users would be a quantum leap from the status quo and would improve outcomes for federal users and Americans. It could be implemented without having to reboot existing agencies.”

Ms. Layton added that with the introduction of the SPECTRUM NOW Act and Spectrum IT Modernization Act, “this Committee is taking important steps to bring federal spectrum allocation into the 21st century and building on proven success of improved management and efficiency of commercial spectrum. A feasibility study of increasing federal spectrum efficiency and relocating federally held spectrum and/or sharing it with commercial users to facilitate the deployment of 5G is much needed. Similarly, modernizing the IT infrastructure for federal spectrum can also help to bring transparency and improved decision-making.”

She also advocated the use of a public dashboard to see how agencies use frequencies and said they “should be graded” on their spectrum use.

Mr. Thune asked whether the interagency spectrum coordination process is working effectively, noting that some agencies have gone directly to the FCC in proceedings rather than working through NTIA.

“The structure is right. We’ve had some stumbles the last couple of years,” replied Mr. Power, who is a veteran of both NTIA and the FCC. He stressed the need for “greater collaboration” between the agencies, adding that NTIA turnover has been a problem lately.

“I think the FCC needs to hear from one voice in a coordinated fashion, but there are exceptions to the rule,” Mr. Power said later during the hearing, in response to a question from Sen. Jerry Moran (R., Kan.).

Mr. Gibson told Sen. Thune that the NTIA-FCC spectrum coordination process is not “broken,” but he said that “it may be suffering from growing pains.”

He told Sen. Moran that the MoU should be updated regularly and that the IRAC process, which he said is “a little arcane and murky,” should be reviewed.

Ms. Layton said that IRAC disputes are “nothing new,” saying that Congress established a process where spectrum would be “a political decision.”

“I think there could be more congressional oversight of this particular function,” she added, clarifying additional oversight of NTIA and the IRAC.

Senators and witnesses also discussed the need for subsidies to ensure rural and other unserved areas get broadband and complained about inaccurate broadband maps.

“The fact of the matter is, these maps are garbage,” said Sen. Schatz, suggesting that the FCC should not hold its planned Rural Digital Opportunity Fund Phase I auction, which is scheduled to start Oct. 29, until the maps are improved.

The FCC plans to distribute up to $16 billion of the $20.4 billion RDOF for areas it says it knows are wholly unserved.

Mr. Calabrese told Sen. Wicker that the FCC should distribute the first two or three years of the initial funding while the maps are being improved but not all 10 years.

But Sen. Wicker said the RDOF funds are overdue and won’t be enough, adding that the Commission should start the RDOF process and “build on that.”

Sen. Jon Tester (D., Mont.) asked the witnesses what percentage of auction revenues should be reserved for broadband deployment in rural and other unserved areas, as some bills have proposed. “At least 50%,” Mr. Calabrese replied.

Sen. Thune introduced legislation last month to reserve 10% of net proceeds from FCC auctions for broadband deployment. Under the Rural Connectivity Advancement Program (RCAP) Act of 2020 (S 4015), 10% of net proceeds of auctions conducted through Sept. 30, 2022, would be deposited in a Rural Broadband Assessment and Deployment Fund (TR Daily, June 18).

Sen. Richard Blumenthal (D., Conn.) noted that he and others senators have introduced the Emergency Broadband Connections Act (S 4095), which would create an emergency benefit to provide low-income households or those recently furloughed or laid off as a result of the COVID-19 pandemic with a $50 monthly benefit to subsidize broadband Internet service, or a $75 monthly benefit for households on tribal lands (TR Daily, June 29). The senator said he hopes broadband funding makes it into the next COVID-19 stimulus package.

Sens. Amy Klobuchar (D., Minn.) and Jacky Rosen (D., Nev.) said the FCC should extend the 2.5 GHz band rural tribal priority window, action that Mr. Calabrese also endorsed. Nearly 50 entities wrote the FCC today to support a 182-day extension of the window.

Sen. Rosen also stressed the need for a national spectrum strategy, while Ms. Klobuchar cited her introduction of the Keeping Critical Connections Act of 2020 (S 3569) with Sen. Kevin Cramer (R., N.D.), which would appropriate $2 billion for an FCC-administered fund to compensate small carriers for providing free or discounted broadband service to low-income households or for providing distance-learning capability to students during the coronavirus pandemic (TR Daily, March 24).

Before the hearing was closed, Mr. Power said wireless carriers use spectrum 42 times more efficiently than they did a decade ago, adding that federal agencies don’t have such incentives but should be given additional ones for efficient use.

Sen. Thune stressed the importance of the issues discussed at today’s hearing, saying, “We have to figure this out. The stakes are so high.” —Paul Kirby, [email protected]

MainStory: Congress FederalNews SpectrumAllocation Covid19

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