Lawmakers Anticipate Reviving Spectrum Measures, Expect Administration Tensions to Persist

Senate Commerce Committee Chairman John Thune, R-S.D., sees the weakened form of Mobile Now (S-2555) that cleared his committee in March as the “best deal” he could cut with the Obama administration, which records show was carefully negotiated for months to reduce its more ambitious initial drafts. “But that doesn’t mean that next year in a new environment with some new players involved, we might be able to do some more,” Thune told us. “We’ll see. … There might be some new wrinkles.”

NTIA closely coordinated with federal spectrum stakeholders and the Senate Commerce Committee on Mobile Now, which included harsh Obama administration pushback of several of the draft’s initial ideas, such as providing incentives to agencies to relinquish spectrum and mandates for freeing up spectrum (see 1612160062 and 1612200031). Those more aggressive provisions disappeared from the bill’s final version this Congress, and the legislation stalled on the Senate floor this month due to an unrelated nominations fight.

Lawmakers doubt any underlying shift in the dynamics as the White House handover from President Barack Obama to Trump takes place. They point to the core concerns of the federal stakeholders.

It's "always hard to tell” whether there will be any change, said House Armed Services Committee ranking member Adam Smith, D-Wash. “Probably not. [The DOD's] within the Pentagon. There’s a lot of career people over there. So it probably doesn’t change that much, but you never know.” He has weighed in on certain spectrum issues, given his attention to the federal stakeholders. “It’s an important issue,” Smith said. “Obviously spectrum’s important to our economy. I want to be sure we’re making the best use of it.”

“Given the change in administration, people are going to just kind of wait a little bit and try to figure things out,” said Rep. Doris Matsui, D-Calif., co-chair of the Congressional Spectrum Caucus. “That’s my sense, and I think that’s what we’re doing, too.” She said the committee chairs can have an influence. Both Commerce chairmen for the next Congress have prioritized spectrum legislation.

“I never saw that as particularly a partisan issue,” said incoming House Commerce Committee Chairman Greg Walden, R-Ore., who led the Communications Subcommittee for the past several years, of the administration handover. “It can be a territorial issue. If you have spectrum, you don’t want to give it up because you know it’s valuable, and even if you’re not using it, you don’t want to give it up. What we were able to do is create packages that actually help the agencies upgrade their own equipment, move into a better technology for themselves as a result of proceeds and all from spectrum and do some swapping and all.”

Thune is also less sure whether there will be any underlying shift in the political calculus that affected Mobile Now this past Congress. “I don’t know,” he said. “I suppose it does depend a little bit from administration to administration. And you know, obviously, the current administration had a slightly different take on this. But some of those equities that the stakeholders bring, including the DOD, I don’t suspect probably change much.”

Mobile Now's Return

Several observers said they have reason to believe Thune will face good prospects of advancing another spectrum bill this Congress. Some doubted the speed at which any package could move in 2017.

“I think [Mobile Now] will come back and it will look much more like what Team Thune was envisioning,” said Recon Analytics analyst Roger Entner. Thune should have “a lot more leeway” next Congress, Entner said. “In all likelihood, President Trump will sign it. … His agenda is to stimulate investment and create jobs.” Entner argued there’s a “proven link” between such spectrum investment and those benefits.

“I don’t know that anyone has a strong sense of what to expect on spectrum policy from the incoming administration,” said Public Knowledge Senior Policy Counsel Phillip Berenbroick. “The staffing decisions might be some time away.” The Senate also will be caught up in confirmations for the next six to 12 months, Berenbroick added, requiring significant floor time along with the Trump administration priorities of tax, healthcare and infrastructure. That may postpone how quickly the new Congress could process a revived spectrum package, he said.

The ideal scenario would be for certain Mobile Now provisions to become a section or subsection of the infrastructure investment proposal that Trump said he wants Congress to advance next year, Entner believes. “It’s a revenue-positive bill,” Entner said of a potentially revived Mobile Now, believing it could help offset Capitol Hill GOP concerns about the debt an infrastructure stimulus could incur. Thune will have more influence over Trump’s Commerce Department, with a confirmation hearing for commerce secretary nominee Wilbur Ross early in 2017, Entner added. DOD will also receive new leadership, likely under Trump’s pick of James Mattis. Berenbroick was less sure about Mobile Now fitting into the infrastructure package but “potentially” parts could fold into it, he said, pointing to some of the provisions aimed at easing broadband deployment.

“Spectrum policy enjoyed bipartisan support in the 114th Congress, and we expect that tradition of positive spectrum policies will continue going forward,” said Competitive Carriers Association President Steve Berry, calling his group “a strong supporter” of Mobile Now and of “similar provisions in the House.” The association anticipates continuing to press such measures by “working with both the House and Senate next year through stand-alone legislation or as part of a broader infrastructure package,” Berry said.

Evolving Pressures

“The biggest issue with the Trump administration is we don’t know what we’re getting,” said Armand Musey, president of the Summit Ridge Group. He suspects “they’re going to look for very straightforward economic systems to allocate spectrum.” The easiest way would be to allow federal agency leasing, said Musey, who was surprised at the Obama administration pushback against Mobile Now’s original leasing language. Musey wondered about the Trump transition officials focused on the FCC and whether that could have influence. American Enterprise Institute scholar Roslyn Layton, a transition team member, has long backed federal spectrum sharing (see 1611290022).

Walden has spent years developing relationships with federal spectrum stakeholders as part of his subcommittee role. He pointed to that coordination recently, discussing Congress’ future role.

“We did AWS-3,” Walden said. “There’s some 5G work. There’s other spectrum we’re looking at. I don’t know that it’ll shift that much because it is complicated to free up spectrum, whether in the private sector or the public sector. And you have to do it very thoughtfully. And frankly the Department of Defense, NTIA and even in this area the FCC have all worked together with the private sector where there was overlap to help bring spectrum to market. … We’re also seeing evolution and innovation in how spectrum is used. Think back to when we passed the original spectrum auction proposal back in 2012, the higher frequencies, people thought, ‘Oh, that’s way out there somewhere else,’ the 5 gig, the 2 gig, and now all of sudden people go, ‘Well, that’s where the future is, and we’re there.’ And I think we just have to continue to look at where innovation is taking us, where new compression technologies are taking us, and be ready -- because there may be spectrum the government has, frequencies nobody thought would be that useful for commercial use, and now, maybe.”

“I wonder if there’s less pressure on this topic,” Musey added, suggesting the apparently “weak” ongoing broadcast TV incentive auction may mean less of a spectrum crunch than some wireless industry officials claim. The many billions of dollars from the AWS-3 auction could have been an “anomaly” driven by Dish Network bidding practices, he said.

“We’ve already had some experience in this and we know how it works,” said Matsui, who hopes to revive spectrum legislative efforts and initially was a pioneer of the incentives legislation that Walden also backed. “Given the way technology is going today, I think people understand we really have to get ahead of the game. Things are just moving along.”

Editor's Note: This is the final part of a Communications Daily series considering how Congress balances its spectrum proposals with the executive branch. Initial coverage focused on NTIA’s close coordination with federal spectrum stakeholders and the Senate Commerce Committee on its Mobile Now legislation.