Thune Seeks to Move Ambitious Spectrum Bill

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By Lydia Beyoud

The chairman of the Senate Commerce, Science and Transportation Committee told reporters Nov. 10 he would look at multiple options to move landmark draft spectrum legislation through the chamber.
The timing of a full Senate vote on the draft bill would depend on the level of support it gets coming out of committee, Sen. John Thune (R-S.D.) said of what he termed a “time-sensitive piece of legislation.” 

The draft bill, circulated late Nov. 6, lays out an ambitious set of proposals to increase the amount of federal and non-federal spectrum to be made available to the mobile and broadband industries over the next decade.

The committee brought together what it saw as some of the better ideas, based on a series of spectrum hearings, “and tried to incorporate them into a bill that sets a vision, puts a goal out there and puts it in law so that we have to have some sense of urgency about getting to it,” Thune said.

Initial reactions to the bill have been positive, with telecommunications industry insiders applauding the committee for laying out a series of thoughtful proposals seeking to tackle head-on the nation's need for more wireless spectrum.

“It's a big step forward to have a draft out there” after months of discussion and hearings on the issue, one telecom industry lobbyist told Bloomberg BNA on background. “It's a substantive, serious draft with a lot of ideas that are good,” the industry official said.

One of the bill's primary goals is to modify the Spectrum Pipeline Act of 2015, a provision signed into law Nov. 2 as part of the Bipartisan Budget Act of 2015. The measure would increase from 30 megahertz (MHz) to 50 MHz the amount of government spectrum to be identified and auctioned off to private users by 2024. The draft legislation also would provide incentives to federal agencies to vacate, share or lease their spectrum in the form of a sliding scale of auction proceeds, from 5 percent to 25 percent.

The draft bill also would codify the Obama administration's 2010 National Broadband Plan to clear 500 MHz of federal and non-federal spectrum by the end of 2020. Releasing that new spectrum to the private market in the form of exclusive-use, licensed spectrum is the prime directive of the draft bill, a measure sure to please wireless carriers and other groups.

“The spectrum is just significantly more valuable when used singly,” Thomas Lenard, president of the Technology Policy Institute, told Bloomberg BNA.

A provision in the bill that would require agencies to quantify the “opportunity cost” of holding onto their spectrum rather than putting it into the hands of the private market should also help them internalize the value of the underutilized spectrum they have, Lenard said.

The fact that only 50 MHz of that spectrum would be required to be auctioned by 2024 signifies the committee's awareness of the difficulties of actually getting federal agencies such as the Department of Defense to release their spectrum, Michael Calabrese of the Open Technology Institute at the New America Foundation, told Bloomberg BNA.

The 45-page bill, which will probably only expand once text on a “dig once” policy for laying broadband conduit during highway construction projects is added to a reserved section, also includes provisions that would ease wireless siting applications on both federal and municipal lands and would open up high-frequency millimeter wave spectrum for potential use, among other provisions.

“All of these things combined probably could help” meet the nation's demand for more and faster mobile broadband, one telecom industry official told Bloomberg BNA, calling the draft bill's provisions an innovative approach. “But we have to think about it a bit more,” the official said on background.

Tentative Markup

The bill was prepared without input from the committee's Democrats, though Thune's staff is said to now be seeking that support ahead of a markup tentatively scheduled for Nov. 18, multiple telecom industry lobbyists told Bloomberg BNA on background.

Thune himself said he expects the proposals to gain “pretty broad bipartisan support. I think people on both sides recognize the value of increasing the amount of spectrum, knowing that we’re going, as they say, to increase the number of handheld devices five times between now and 2020,” he told reporters.

Some provisions in the draft bill seem designed to appeal to Democrats, such as providing for unlicensed use in wireless guard bands, one telecom industry official said on background. However, Democrats may end up pushing for more spectrum set aside for unlicensed users as well.

“If you don't have Democrats on board in the Senate, then you've got nothing, really,” the industry lobbyist said.

Some groups already have criticized the bill for not setting additional spectrum aside in addition to the guard bands for unlicensed use.

Thune told reporters he would take those criticisms to heart. If groups come forward with ideas about how to develop “a more robust title with regard to unlicensed spectrum, we'll take a look at anybody's suggestions and ideas,” he said.

Senate Commerce Communications, Technology, Innovation and the Internet Subcommittee ranking member Brian Schatz (D-Hawaii) introduced legislation (S. 2278) Nov. 10 to ensure unlicensed spectrum “is a central piece” of the nation's overall spectrum policy strategy, according to a news release.

“My legislation will make sure we develop an aggressive plan to ensure that unlicensed spectrum will be available in the future, giving consumers more options and providing innovators with the foundation to develop new ideas and products,” Schatz said.

If markup on the bill is delayed in November, it will likely be scheduled for a December session just before the end of the 2015 congressional session, multiple lobbyists told Bloomberg BNA.

“I think it's possible they could move this on that schedule through the committee,” another telecom industry lobbyist told Bloomberg BNA.

McCain Ally

The provisions of the bill will require significant feedback from industry groups and from federal agencies, particularly the Department of Defense, one of the largest holders of federal spectrum, as well as the National Telecommunications and Information Administration, which would be required to take on the bulk of the work to push federal spectrum into the private user pipeline.

The committee is working with the Defense and Armed Services Committee, chaired by Sen. John McCain (R-Ariz.), Thune told reporters.

As a former chairman of Senate Commerce, McCain “obviously gets the importance of freeing up additional spectrum for commercial use, but also understands the importance, which we do too, of making sure that the DOD’s concerns are met,” Thune said. “My hope would be that we could actually get somewhere with this. I think it’s important to do it.”

Relocation Fund

The draft bill doesn't include language to broaden the use of the Spectrum Relocation Fund created in 2004, under which some auction proceeds could be used to cover federal agency costs to relocate to new frequency assignments. That omission is one of the largest flaws of the draft measure, Calabrese said.

Expanding the amount of reimbursement agencies can receive would encourage them to clear off a small amount of spectrum for auctions and to simultaneously share a much larger amount of spectrum for more dynamic sharing uses, he said.

Such a measure could open up larger, underutilized bands for sharing with federal systems that aren't able to move, Calabrese said.

It would also help solve one of the chief complexities of vacating federal spectrum. There are few federal bands with a single federal user; many are extensively shared with federal users and tightly wound.

Trying to figure out how to unwind these sorts of bands is a real challenge,” Doug Brake, a telecom policy analyst with the Information Technology and Innovation Foundation, told Bloomberg BNA.

With assistance from Stephanie Beasley

To contact the reporter on this story: Lydia Beyoud in Washington at lbeyoud@bna.com

To contact the editor responsible for this story: Keith Perine in Washington at kperine@bna.com

Text of the draft Making Opportunities for Broadband Investment and Limiting Excessive and Needless Obstacles to Wireless (MOBILE NOW) Act of 2015 is at http://src.bna.com/YL.

Text of Schatz's bill, Promoting Unlicensed Spectrum Act of 2015, is at http://www.schatz.senate.gov/imo/media/doc/S%202278%20Promoting%20Unlicensed%20Spectrum%20Act%202015.pdf.