Bipartisan Public Safety Spectrum Bill Faces Tough Test in Commerce Committee

The Telecommunications Law Resource Center is the most comprehensive reference and news platform for communications law, covering broadcasting, cable, broadband, telephony and wireless;...

Bipartisan legislation that would allocate a coveted block of spectrum for the building of a nationwide emergency communications network is expected to face a lengthy mark-up session in the Senate Commerce, Science, and Transportation Committee June 8, with Republicans piling their proposed amendments on the measure.

The symbolically numbered S. 911 is among the top legislative priorities for Commerce Chairman John D. Rockefeller IV (D-W.Va.), who in recent weeks has managed to reach agreement with committee ranking member Kay Bailey Hutchison (R-Texas) on key provisions of the bill.

Their so-called SPECTRUM Act—Strengthening Public-safety and Enhancing Communications Through Reform, Utilization, and Modernization Act—represents a compromise from a version of legislation Rockefeller had introduced in January (S. 28), and a more comprehensive approach to spectrum policy overall.

The bill would not only allocate the 10 megahertz block of spectrum in the 700 MHz band known as the D Block for the building of a public safety broadband network but also authorize the Federal Communications Commission to hold voluntary “incentive auctions” of spectrum, in which television broadcasters, who license spectrum through the FCC, could release some of it back to the government in exchange for a share of the auction proceeds.

Under S. 911, some of the money raised through incentive auctions—$12 billion—would go to help defray the costs of building the network, which is estimated at between $12 billion and $16 billion. The bill also targets funds generated from the sale of at least 55 MHz of federal government-occupied spectrum below 3 gigahertz and 100 MHz in the 3.5 GHz band.

As envisioned by this and previous versions of legislation, the D Block would be paired with 10 MHz of spectrum in the 700 MHz band that is already licensed to the Public Safety Spectrum Trust Corporation, a nonprofit 501(c)(3) designated by the FCC as the official Public Safety Broadband Licensee for broadband spectrum in the band. But S. 911 would replace the PSST with a new “Public Safety Broadband Corporation” as the licensee for public safety's 700 MHz broadband spectrum.

DeMint Heaps on Amendments.

So far, 81 first-degree amendments and six second-degree amendments have been filed, mostly from Republican members of the committee.

Sen. Jim DeMint (R-S.C.), ranking member of the committee's Communications, Technology, and the Internet subcommittee, filed 30 first-degree amendments and one second-degree amendment, while Sen. Patrick Toomey (R-Pa.) filed 14 first-degree amendments and Sen. Marco Rubio (R-Fla.) filed 12 first-degree amendments and one second-degree amendment.

At markups, filed amendments are often incorporated into one en bloc amendment, while others are never introduced.

DeMint's amendments, in large measure, take aim at the S. 911's proposed Public Safety Broadband Corporation. The senator wants to decrease from 15 years to 10 years the license term for the corporation and authorize the speaker of the House of Representatives, the Senate majority leader, and the chair of the National Governors Association to appoint members to the corporation's board.

Another amendment filed by DeMint would eliminate initial funding for the corporation and require a 50 percent, rather than a 20 percent, non-federal match.

Among other filers, Sen. Olympia Snowe (R-Maine), a long-time champion of spectrum reform policy, offered one amendment that would require the FCC and the Commerce Department's National Telecommunications and Information Administration to conduct a comprehensive inventory of radio spectrum and conduct surveys to determine existing uses.

Sen. Mark Warner (D-Va.) filed an amendment that would require the FCC to establish eligibility criteria and prioritization levels to define which entities with access to the nationwide interoperable broadband network are eligible for prioritization on that network, as well as “any commercial networks onto which such entities may roam,” in each class of prioritization, including any future air interface technology designated for use by the FCC.

Blunt States Preference for D Block Auction.

Sen. Roy Blunt (R-Mo.), meanwhile, filed an amendment that would require the FCC to re-auction, rather than reallocate, the D Block.

The FCC's National Broadband Plan, released a year ago, calls for auctioning off the D Block to commercial bidders and using the proceeds—estimated to be as much as $4 billion—to help build a public safety broadband network. Last June, the FCC published a white paper saying that such a network could be built more cheaply and efficiently using 10 MHz of spectrum already allocated to public safety for mobile broadband use, so long as emergency first responders retain priority access on commercial networks during extreme emergencies. According to the agency, that 10 MHz of spectrum licensed to the Public Safety Spectrum Trust provides more than enough capacity to handle communications during day-to-day and severe emergencies, even chemical attacks. But the FCC's proposal ran into stiff resistance from public safety officials, who fear their current spectrum holdings are insufficient to handle large-scale disasters.

In addition to his strong support for an auction of the D Block, Blunt also supports the FCC's National Broadband Plan proposal to hold incentive auctions. A spokeswoman for Blunt did not immediately return a request for comment on whether the senator would still vote for S. 911 if his amendment is rejected.

House GOP Poses Challenge for Rockefeller.

Blunt's stance on D Block re-auction puts him squarely in line with House Republican leaders such as Rep. Greg Walden (Ore.), the chairman of the House Energy and Commerce Communications Subcommittee, who believe that the successful creation of the nation's first truly interoperable public safety broadband network will hinge on funding, equipment, and also governance—in addition to spectrum.

During a recent House hearing, Walden and full committee Chairman Fred Upton (R-Mich.) cited a Congressional Research Service finding that roughly $13 billion in federal funds has been allocated for public safety communications equipment since 2001, and 100 MHz of spectrum had been designated—and there is still no interoperable network.

On Sept. 11, police officers, firefighters, and emergency medical workers were unable to communicate with one another because they were not using the same radio equipment on the same spectrum bands. One of the recommendations of the 9/11 Commission is to build the nation's first truly interoperable public safety broadband network.

Sources Expect Senate Passage, High Hurdles in House.

Several analysts and industry and congressional sources surveyed by BNA expressed optimism that the Senate will ultimately pass a version of Rockefeller's measure, but noted that the House will pose substantially more opposition.

In the House, Walden and Upton have been among the most vocal D Block allocation critics. Currently, in the 700 MHz band, public safety occupies 24 MHz of spectrum, half of which is allocated for legacy, narrowband voice applications. Walden said that instead of allocating another 10 MHz to public safety, the FCC should reallocate the full 24 MHz for mobile broadband use.

For months, Rockefeller has tried to rally support for passing legislation prior to the 10th anniversary of the Sept. 11, 2001 terrorist attacks. And under current law, the FCC must auction off the D Block by 2012, giving D Block allocation supporters added urgency. Though both the Senate and House overwhelmingly want to begin the process of constructing a network before the anniversary, sources told BNA that the chances of advancing a compromise proposal are becoming slim.

By Paul Barbagallo

For the text of S. 911, visit http://thomas.loc.gov/cgi-bin/query/z?c112:S.911 :.