Fierce Administration Pushback Led to Scale-Down of Mobile Now, Poised for 2017 Return

“We’ll bring it back and we might be able to see next year what else we might be able to do with it,” Thune said in a recent interview. “It’s an issue that’s not going away. And with spectrum, we have to expand.”

Mobile Now died on the Senate floor this month amid the leadership battle over reconfirmation of FCC Commissioner Jessica Rosenworcel (see 1612150068 and 1612060055). Prime negotiation occurred between November 2015 and the March 3 markup of a scaled-down bill.

The Obama administration strongly objected to the original 45-page draft circulated Nov. 6, 2015, which included some of the most ambitious spectrum proposals from Capitol Hill. Thune circulated a revised version later that month. Some sections were based on earlier bicameral and bipartisan bills, such as one to provide financial incentives to federal government agencies to relinquish spectrum. The administration’s section-by-section feedback attacks its major spectrum provisions -- the proposals to mandate the freeing up of federal spectrum; those to provide federal agencies financial incentive to relinquish spectrum; those on federal spectrum leasing; and those on assessing federal spectrum value. The final proposal was stripped of such ideas.

Multiple pages of private administration commentary were unearthed among responses to a Freedom of Information Act request to NTIA, forwarded Nov. 22, 2015, to NTIA Office of Spectrum Management Associate Administrator Paige Atkins from Lockheed Martin Vice President Jennifer Warren, who cited receiving a copy from Hill staff. NTIA declined comment beyond the FOIA responses. The lengthy administration feedback lauded the draft’s goals but said the discussion draft “does not provide a basis” for working with Senate Commerce on spectrum legislation.

'Highly Problematic'

“Beneath the surface, however, the bill is highly problematic because it would establish a framework that is extremely complex, resource intensive, and in many cases not implementable,” the Obama administration said. “This bill risks undoing much of our recent progress on spectrum, including some of the processes that facilitated the recent AWS-3 auction. … The MOBILE NOW Act raises serious concerns across numerous Administration priorities.”

The sum total of the bill troubled government officials, according to this feedback: “Many of these proposals raise questions and concerns individually, which are exacerbated by their interplay and are compounding in nature. Many of the proposals in the bill are also simply not feasible or would require significant new resources that are not provided in the legislation.” Ignoring the statutory requirements of DOD and other government agencies on preserving their capabilities “would inevitably result in their inability to meet their mission that are so critical to our nation, including national security.” The administration “received no meaningful opportunity to weigh in on the entire proposal in advance” and suffered from limited review time, it said.

“This was what I expected,” said Recon Analytics analyst Roger Entner upon reviewing records. He told us there were no real surprises given widespread knowledge of the Obama administration’s pushback to the initial drafts, never public but openly acknowledged by Thune and his staffers. “That’s how the sausage is made,” agreed Public Knowledge Senior Policy Counsel Phillip Berenbroick, upon review, expressing little shock and viewing the net result as a positive and necessary negotiation. He expected similar exchanges were occurring with industry stakeholders then and was himself engaged with the Hill on behalf of PK, with an eye toward unlicensed spectrum use. Armand Musey, president of Summit Ridge Group, was taken aback by the strength of initial administration objections: “This is a lot more pushback, kind of a massive pushback that I wasn’t expecting.”

These records show NTIA officials obsessively tracked details and news-media coverage of Mobile Now’s progress in real time throughout the months of negotiation, often setting up meetings to discuss both the proposal and later proposed amendments. Markup was delayed multiple months, and Thune didn’t introduce actual legislation until February, joining with Commerce Committee ranking member Bill Nelson, D-Fla., and finally unanimously clearing March 3 a notably scaled-down measure that left some wireless industry officials privately disappointed but apparently passed administration muster.

Defense and other federal stakeholders exert significant influence, members of Congress say. The DOD is the biggest challenge, said House Armed Services Committee ranking member Adam Smith, D-Wash., in an interview. “They have a lot of interests in spectrum that they want to make sure that they protect. I can’t get into it more than that. We’ve worked with them. And they’ve opened up some spectrum as a result of some agreements we had in the last couple years.”

“I think we cut the best deal we could this year,” Thune told us.

Negotiation Process

Thune complained during negotiation about the administration not providing input in a timely manner, and emails show committee telecom policy director David Quinalty prodding administration officials to this effect. Quinalty emailed administration officials Nov. 20 and Dec. 8 on edits to address DOD concerns, providing questions and suggested edits. He followed up in a Jan. 4 email to officials from NTIA, OMB and the White House on that chain “to see if you all have any comments/feedback” since the Thune office would “like to lock in changes to the bill as soon as possible because Chairman Thune wants to markup the bill within the next few weeks.” Quinalty again emailed NTIA congressional liaison Kate Geldaker and congressional affairs director Jim Wasilewski Jan. 15: “Should we take the silence as tacit approval of our last batch of edits?”

Behind the scenes, NTIA officials didn’t waste time after receiving the 2015 drafts. NTIA's Atkins emailed others there at 4:38 a.m. Nov. 7 urging an internal meeting: “We will have a lot of comments/concerns.” Geldaker was emailing others at NTIA after 9 p.m. on Nov. 8 requesting a meeting “to go over the spectrum provisions” in Mobile Now so she could “pull together comments on each section” to “submit to the committee in writing.” She also referred to a different anticipated meeting on its infrastructure sections -- inviting officials to “stop by for ginger cookies” she planned to bring to the process. Atkins, emailing NTIA spectrum official Byron Barker Nov. 12, noted the “many significant issues for the federal agencies.” Nelson’s office “expressed that [his office] won't agree to a bill that is so controversial,” Geldaker said in an internal Nov. 14, 2015, email after a Senate Commerce decision not to mark up the measure that month. Mobile Now also factored into administration strategies. Atkins, emailing officials Dec. 31, thanked Geldaker for “helpful” guidance on possible 2016 markup timing, “especially if we want to get another blog out prior to (the one about Federal usage stats -- proactive messaging).”

Other government stakeholders became involved, emails show, confirming what senators told reporters throughout negotiation. Quinalty started an email chain called “possible MOBILE NOW edits to address DOD concerns” Nov. 20, 2015, with a redline discussion draft produced by Thune staff “with changes intended to address DOD/IC [intelligence community] concerns” and “issues raised in the White House’s consolidated comments as well as those communicated to us via SASC [Senate Armed Services Committee] on behalf of DOD and ODNI [Office of the Director of National Intelligence],” he said, noting he also shared the revised draft with Senate Armed Services bipartisan staff. NTIA’s Geldaker pulled in White House and Office of Management and Budget contacts on certain sections, late-January emails between Thune staffers and NTIA show. On Jan. 25, she emailed Senate Commerce staffers with “technical assistance from OMB, DOD, and NTIA” and said “OMB and NTIA would be willing to go over these recommendations with you if needed.” One record showed Geldaker looping in David Edelman, special assistant to President Barack Obama for economic and tech policy.

Thune finally introduced Mobile Now in reduced form Feb. 11. He secured co-sponsorship from a reluctant Nelson, a senior Armed Services member who had echoed the administration’s national security concerns in the preceding months.

NTIA remained focused as the March 3 markup approached. Geldaker emailed a wide range of officials to “hold this time on people’s calendars” Feb. 29 for amendment discussion. Wasilewski emailed officials to host a call specifically on the spectrum opportunity costs amendment from Sens. Marco Rubio, R-Fla., and Cory Gardner, R-Colo. This language, provoking security concerns, was initially part of the first Mobile Now drafts and failed to make it into the version marked up from Senate Commerce. A changed version did become attached to the FCC Reauthorization Act later this year. NTIA officials including Geldaker and Atkins monitored the Senate Commerce markup March 3. “Mobile Now Act passed,” Geldaker emailed her colleagues at 10:30 a.m. “I’m going to double check modifications with the committee.” Atkins responded within a minute thanking Geldaker: “I could not keep up. :-)” NTIA BroadbandUSA Director-External Affairs Aimee Meacham emailed that night, “Any sense how fast we think this will move?” Geldaker told her they were unsure, citing the need for Congressional Budget Office scoring and the committee report. She circled back to alert NTIA officials April 30 once it was scored by CBO.

Government officials continued holding meetings and emailing on the legislation months later, with exchanges showing a meeting scheduled in May. “I’ll be showing this to Larry this afternoon,” Geldaker told colleagues in a May 3 note of certain feedback on the bill, potentially referring to NTIA Administrator Larry Strickling. By May 12, Atkins referred to talking with the committee about moving Mobile Now on the floor but encountering “concerns” about a possible Rosenworcel-related holdup, a rumor that Wasilewski affirmed was reported in Communications Daily (see 1605100058). Senate Minority Leader Harry Reid, D-Nev., ultimately blocked the bill's passage for those reasons.

Focus on 2017

Expect these original Hill proposals to resurface in 2017 in the new Congress, lawmakers told us.

Sen. Marco Rubio, R-Fla., introduced several of the spectrum measures deemed more aggressive and included in Mobile Now’s first versions, and he has no intention of relenting in his pursuit next Congress, his office said. “Senator Rubio’s goals, including those outlined during the drafting of the Mobile Now Act, remain the same, and whether we pursue them through administrative action, legislation, or a combination thereof in the new Congress will be determined as we discuss these ideas with the new administration going forward,” a Rubio spokesman said.

“We are going to look at that because I think they’re still really good issues and policy,” said Rep. Doris Matsui, D-Calif., co-chair of the Congressional Spectrum Caucus who spearheaded the original Federal Spectrum Incentive Act, upon which Mobile Now’s incentives section was based. “We had a lot of bipartisan support, too. And I really believe that as we move forward, those are the kind of areas you can really work together, that really had support.”

Incoming House Commerce Committee Chairman Greg Walden, R-Ore., who led the Communications Subcommittee for the last several years, was also a co-sponsor for the incentives measure and active on spectrum policy. Walden backed Mobile Now this year and hoped to find a way to advance it through the House, at one point speaking of a desire to upgrade the measure. Mobile Now never had a direct House companion despite pulling from measures in the lower chamber.

“There’s more that can and will be done,” Walden said in an interview. “I think there are ways to address the additional spectrum needs of the future but it has to be done collaboratively, and I really think it is about making sure that the legitimate interest of the federal government when it comes to our national security, when it comes to emergency services and the other communications we need at the federal level, that those are satisfied. We can’t just wipe them out. That wouldn’t make any sense. I think there’s more work to be done, and it will continue on. They’ve been good players.”

Editor's note: This is the first part in a series looking at the relationship between Congress and the executive branch on spectrum legislation. Additional coverage will examine the negotiation on specific proposals between Congress and the executive branch and on how dynamics could change.