Disappointed Stakeholders Focus on What's Missing From Mobile Now

“It is disappointing that the specific spectrum goals and timelines have been struck from the bill as they are key features that would have gotten us beyond the 500 MHz that had been already promised five and a half years ago,” said Roger Entner, an analyst for Recon Analytics who has done research for CTIA. A disappointed wireless industry official told us he's wondering how these proposals were left on the cutting room floor. Also absent in the new version is language specifying that “NTIA, in consultation with the [FCC] and the Director of [the Office of Management and Budget], shall develop a framework for determining the annual economic opportunity cost of each specific Federal spectrum band assigned or otherwise allocated for use by a Federal entity,” a provision that Entner had praised in November. Both the wireless official and Entner lauded Senate Commerce Committee Chairman John Thune, R-S.D., and ranking member Bill Nelson, D-Fla., for together introducing this latest version and heralded it as an important step in general.

“It seems like an incomplete bill if you don’t have a target and don’t have an incentive,” said Armand Musey, president of Summit Ridge Group. He insisted federal agencies would need some kind of incentive to give up spectrum and wondered if the bill may be “kind of pointless” without those core provisions.

“We’re really disappointed that there’s not more incorporation of unlicensed into the bill,” said Public Knowledge government affairs counsel Phillip Berenbroick, citing the unlicensed spectrum proposal that Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, raised in November: “The committee was well aware of the Schatz bill and what was in it.” Schatz hopes to file his legislation as an amendment to Mobile Now.

“While there are many positive provision[s], such as dig once, the spectrum provisions are surprisingly anti-unlicensed and anti-WiFi,” emailed Michael Calabrese, director of the Wireless Future Program at New America. “The bill rejects the huge and proven benefits of a balance between licensed and unlicensed spectrum. The Mobile NOW Act’s shortsighted requirement that all Federal band sharing should be premised on exclusive licenses sold at auction simply ignores the reality that WiFi today carries more than 60% of all mobile device data traffic, ensuring greater availability and affordability for consumers. The bill also outlaws any new dedicated unlicensed band, a view that would have prevented WiFi from ever incubating on the 2.4 GHz band. Mobile NOW may be good news for Verizon and AT&T, but it’s very bad news for consumers, competition and innovation.”

More Provisions Possible?

Thune is responsible for Mobile Now and introduced two 45-page draft bill versions in November. Both the first and second of the texts included those now axed proposals, which drew praise from wireless industry observers then. The incentive section would have allowed federal agencies to recoup up to 25 percent of the proceeds from sale of spectrum they gave up to auction, a far higher incentive figure than in earlier House and Senate legislation. Those draft bills included many sections intended to ease broadband deployment and facilitate spectrum studies that were retained in the new version of the legislation. NTIA contacted Thune’s office in November, kicking off protracted negotiation over national security interference concerns from the Department of Defense and the Senate Armed Services Committee. Thune secured the backing of Nelson last week, after Nelson’s reluctance to sign on over national security concerns (see 1602110052).

“Forging a strong consensus required both time and changes to accommodate federal agencies,” Thune said in a statement. “While we may still add additional provisions, Ranking Member Nelson and I are now ready to move this much-needed legislation forward.” Nelson said he and Thune “worked hard to meet consumers’ desire for cutting-edge wireless services, while at the same time protecting critical national security operations.” Both lawmakers emphasized Mobile Now’s importance for future 5G service.

Mobile Now as introduced retains many spectrum provisions from earlier versions. It would codify a 2010 presidential memorandum wherein President Barack Obama directed federal agencies to free up 500 MHz of spectrum for commercial broadband use by 2020, according to a section-by-section summary of the bill’s provisions. Another section on millimeter waves -- which last week Thune flagged as perhaps the most important section of the bill -- directs NTIA “to conduct an assessment evaluating the feasibility of allowing mobile or fixed terrestrial wireless operations, including for broadband, in six specified bands between the frequencies of 24 gigahertz and 86 gigahertz.” Rather than giving agencies incentives to give up spectrum, this legislation directs the Commerce Department to within 18 months of enactment report on such incentive proposals. It would force the FCC to do a bidirectional sharing study and require the agency to allow unlicensed spectrum use in the guard bands if feasible. The legislation would allow federal agencies to receive pre-auction funding for auctions likely happening within five years, rather than the current eight, and allow federal entities to receive Spectrum Relocation Fund money faster.

The legislation would require the Commerce Department “within three years of enactment” to assess “the feasibility of allowing commercial wireless services, licensed or unlicensed, to share ... frequencies between 3100 megahertz and 3550 megahertz” and also require the FCC to produce a report on “the feasibility of allowing commercial wireless services, licensed or unlicensed, to share the use of the frequencies between 3700 megahertz and 4200 megahertz.” The new language dials down requirements for the 3700-4200 MHz bands, a particularly controversial section in past versions that drew opposition from the Satellite Industry Association and the administration. The old language demanded the FCC complete an inquiry rather than, as in the changed version this month, provide a report to Congress and the president. The latest version also specifies the report be produced “in consultation with the Secretary [of Commerce] and the head of each affected Federal agency (or a designee thereof),” specifications not part of the earlier language.

Also remaining are several broadband deployment provisions. The FCC would have to act by Dec. 31 in its “Program Alternatives for Small Wireless Communications Facility Deployments” proceeding, one section said. Another section would strive to ease deployment on federal land and stress support for dig once infrastructure policies, which falls far short of the more proscriptive dig once demands in legislation from Sen. Amy Klobuchar, D-Minn., and House lawmakers (see 1511270038). The legislation would compel creation of a national broadband facilities asset database no later than June 30, 2018.

Next Steps

Several industry groups lauded Mobile Now. It’s an “important bill that will be key to America’s 5G future,” said CTIA President Meredith Baker, who hosted Thune at an event earlier last week and testified before the committee last summer. The legislation’s “comprehensive approach to addressing our nation's mobile needs -- from spectrum to infrastructure -- will fuel continued innovation, investment and help keep America the global mobile leader,” she said. Telecom Industry Association CEO Scott Belcher sees Mobile Now as “an important achievement and a step towards making 5G networks a reality,” he said Friday. “By paving the path towards opening more federal spectrum to non-federal use and streamlining regulations for wireless deployment, the bill lays critical groundwork for companies that are investing in infrastructure and building next-generation networks.” Competitive Carriers Association President Steve Berry said the bill is “a step forward in the right direction to addressing current deployment and infrastructure challenges.”

The bill was referred to the Commerce Committee. Thune has told us he wants to move directly to markup. Early last week several industry lobbyists had heard March 3 as one tentative markup date.

Mobile Now’s passage through Congress this year certainly “falls into the realm of possible,” TIA Senior Vice President-Government Affairs James Reid, a former Democratic staffer involved with the Senate Commerce Committee, told us, citing its bipartisan backing now and the apparent resolution of administration concerns. If the Commerce Committee can successfully clear the measure in the coming weeks, such passage “certainly improves its prospects for the committee to make a pitch to leadership that it merits floor time,” said Reid.

“It wouldn’t shock me to see a quick markup” but the legislation would likely need to better address unlicensed issues to get full Democratic buy-in, Berenbroick said. 2016 is widely seen as an especially difficult year to move legislation due to presidential election year politics and few legislative days.