Thune's Spectrum Draft Likely To Gain Broad Backing, Observers Predict

Commerce Committee ranking member Bill Nelson, D-Fla., didn't claim any role in crafting the staff discussion draft. “We received it late Friday, along with every member of the committee,” a Nelson spokesman confirmed Monday, declining to comment on the draft. “We are in the process of reviewing it.” A Democratic Senate staffer from a different office also confirmed no involvement in the crafting of the draft. A GOP committee staffer said the draft has been shared with other offices but declined comment on timelines or specifics involved.

“Even though this came from Senator Thune’s office, this is not a Republican bill,” said Roger Entner, an analyst for Recon Analytics who has done research for CTIA. “Everybody should be able to stand behind that bill without any problem. I can’t see any ideology in that bill.” The drafting demonstrates “all the hallmarks” of bipartisanship and could have as easily come from Nelson’s office, Entner said, emphasizing its focus on unlicensed spectrum in addition to licensed.

One wireless lobbyist expects a markup by Thanksgiving, he told us. He judged this draft measure a robust and quality proposal that draws on past committee work, likely to garner strong bipartisan support and broad wireless industry support by the time of any eventual markup.

“We are gratified to see Chairman Thune follow through so soon on his statement that the spectrum provisions in the Bipartisan Budget Act were merely a down-payment on a larger spectrum plan to come,” CTIA President Meredith Baker said. The Competitive Carriers Association “is pleased the draft legislation reallocates additional spectrum for mobile broadband use and looks at ways to ease deploying infrastructure,” President Steve Berry said. “Congress plays a key role in creating durable processes that foster efficient spectrum management and [maximize] the use of spectrum.” He lauded the provisions to “ensure that spectrum will be available and that carriers will have increased certainty to deploy spectrum, particularly on federal lands.” PCIA President Jonathan Adelstein called the draft “an important step toward removing unreasonable barriers to wireless broadband investment and deployment, and requiring the federal government to auction more spectrum for commercial use.” Industry depends on such efficient deployment “and on making more spectrum available in a timely manner,” Adelstein said.

The 45-page draft bill is called the Making Opportunities for Broadband Investment and Limiting Excessive and Needless Obstacles to Wireless Act, or Mobile Now Act. A GOP committee spokesman confirmed our copy's authenticity and said changes are still possible before introduction. The committee staffers are trying to gather member input as quickly as possible, he said. The text includes 18 sections, not all fully filled out in the draft circulated Friday. The dig once section simply says “TBD” under its title. One section would modify the provision in the budget deal, which was recently enacted and forces the government to auction 30 MHz of spectrum by 2024. Under the draft, the government would have to auction 50 MHz by that year. The federal government would also have to identify that spectrum quicker, by Jan. 1, 2021.

Entner said “30 MHz of spectrum is not a lot,” speaking of the initial budget deal number. But the new figure outlined in Thune’s draft would allow for a broadband channel due to the higher number, he said. Entner also focused on the measure’s “direct instructions” to NTIA on identifying spectrum and establishing “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,” the text said. “Not later than 5 years after the date of enactment of this Act, and every 5 years thereafter, each Federal entity that has been assigned or otherwise allocated use of a Federal spectrum band, or otherwise utilizes such spectrum, shall engage in an analysis comparing the opportunity cost of that spectrum, as such cost is determined by the framework developed by the NTIA under subsection (a), to the projected costs of the Federal entity relocating to other Federal Government spectrum holdings, co-locating with other Government agencies, leasing other non-Federal spectrum, or contracting out for its spectrum activities.” The draft’s instructions to the federal government reveal some small “frustration with the lack of progress,” Entner said, lauding the way the legislation would help unveil spectrum value in an ongoing way. “This lets you then very quickly see what spectrum is available, who’s using it” and the value and opportunity cost, Entner said. “This lets you very quickly identify more spectrum opportunities.”

Another section outlines reallocation incentives and would allow federal agencies to recoup up to 25 percent of the value of the spectrum they give up to auction. The figure is dramatically higher than the 1 percent included in the Federal Spectrum Incentive Act (S-887/HR-1641), a bicameral and bipartisan measure introduced earlier this year. It was believed this spring that the Incentive Act’s figure was too small and that evolving incentives may be likely to really get federal agencies to give up spectrum (see 1504240061). Federal agencies could get the proceeds only if “because of the award, it is much more likely than not that the increase in net proceeds, compared to what the net proceeds would be if the Federal entity could only be reimbursed for relocation or sharing costs,” according to the new Thune draft, “will be greater than the amount of net proceeds awarded to the Federal entity under the agreement.” There's also a provision on federal spectrum leasing.

Among the broadband deployment provisions is language compelling the creation of a national broadband facilities asset database. This idea and other deployment measures, such as dig once and shot clocks for government authorities, have come up this fall and attracted bipartisan backing in the House Communications Subcommittee (see 1510280056). Sen. Amy Klobuchar, D-Minn., and three GOP co-sponsors also have focused on these issues through the Streamlining and Investing in Broadband Infrastructure Act (S-2163), introduced last month.

The draft text would force the FCC to create rules for allowing unlicensed spectrum use in the spectrum guard bands that “protect auctioned frequencies, including spectrum that acts as a duplex gap between transmit and receive frequencies,” the text said. But the FCC “may not permit any use of a guard band under this section that would cause harmful interference to an auctioned frequency,” it said. Entner called this provision “a big nod to the unlicensed community,” though he noted they may push for more unlicensed use. But he saw this as an important part of the measure’s balance, which contains enough that “hopefully satisfies both sides,” Entner said. Committee Democrats repeatedly have emphasized the importance of unlicensed spectrum use. FCC Commissioner Jessica Rosenworcel has encouraged Congress to include a “Wi-Fi dividend,” including “a cut” for unlicensed in legislation addressing licensed spectrum, in part to sidestep concerns about how the Congressional Budget Office scores spectrum legislation.

But the Thune draft is still a “first step” with several more remaining for Congress, Entner said: “We need above and beyond that 200 MHz, ideally contiguous, under 6 GHz, ideally three, three and a half.”