Some recent court decisions have “nibbled away” at the concept of Chevron deference, attorneys from the FCC Office of General Counsel said at an FCBA CLE Monday evening. The legal principle that courts should give deference to expert agencies on matters of interpreting legislation is “in flux,” said Litigation Division Chief Jacob Lewis. “Chevron lives, it’s still healthy,” Lewis said, but the doctrine is facing “more serious challenges.
A Tuesday Senate Appropriations Financial Services Subcommittee hearing on the FCC FY 2018 budget focused largely on the direction of the commission under Chairman Ajit Pai, with subcommittee Republicans highlighting policy issues Pai championed. Democrats raised concerns with the future of 2015 net neutrality rules and Congress' rollback of ISP privacy rules. President Donald Trump's administration proposed last month that the FCC budget be cut by $18 million, to $322 million, after years of the agency maintaining $340 million in annual funding. The FCC's budget justification document noted a planned reduction of more than 100 employees (see 1705230041).
The FCC’s FY 2018 budget request includes plans for an additional $6 billion spectrum auction, to take place between 2025 and 2027, but offers no more details. Industry lawyers, including former FCC and Capitol Hill officials, said at this stage, the FCC goal may be mostly aspirational and government doesn’t appear to be focused on a particular band. The budget document proposes to extend FCC auction authority to 2027, from a current expiration of 2025. “The Budget proposes to require the auction of additional spectrum by 2027 and further extend the FCC’s auction authority solely to allow this auction to proceed,” it said.
The Trump administration FY 2018 budget request would cut FCC funding by about $18 million. The White House unveiled the documents Tuesday, and several stakeholders said Congress won't take up the proposal as drafted. The funding measure comported with a previous outline and moved to nix funding for the CPB, including a small portion of funding as part of a winding-down process.
Broadcasters are paying a huge price for supposed demand for low-band spectrum that never materialized in the TV incentive auction, said Preston Padden, who advised broadcasters in the auction, at a Duke Law School conference Friday. Padden said the auction was inefficient on several levels, with 42 MHz of “pristine” 600 MHz going unsold.
The Congressional Arts Caucus' co-chairs are preparing a letter to FCC Chairman Pai and the other commissioners that will urge the commission “to retain the ability of wireless microphones in the performing arts to register in the database” to protect against interference. The two co-chairs are Reps. Louise Slaughter, D-N.Y., and Leonard Lance, R-N.J., vice chairman of the Communications Subcommittee. “As the Commission reviews the results of the spectrum auctions, we write to stress the importance of wireless microphones to the performing arts which rely on this efficient and reliable technology,” they said in a draft of the letter, citing commission action in 2014 ruling “that performing arts entities regularly using 50 or more wireless devices would be eligible to apply for a Part 74 license and would have access to a database which protects against interference,” a “move in the right direction and [that] protects some large events and performances against interference from White Space devices.” But the FCC’s choice to leave out performing arts entities utilizing fewer than 50 devices regularly would “leave major not-for-profit regional theatres, and our nation’s symphony orchestras, opera companies, dance companies, presenting organizations and educational entities without interference protection against White Space devices.” The agency should “develop rules which preserve the quality and integrity of wireless microphones used in the performing arts,” said the draft. The deadline for other lawmakers to sign the letter is Friday, and a House aide told us the current hope is to send the letter to the FCC that day.
A new spectrum auction may be wrapped into the bigger infrastructure proposal that Congress and the White House are putting together. President Donald Trump is familiar with the auctions and brought them up in the context of his $1 trillion infrastructure plan, according to a report in The Wall Street Journal. House Republicans plan to put together a set of broadband proposals with that package in mind, a key staffer said.
“The jury is still out” on whether the TV incentive auction will be considered a success, but more incentive auctions are likely on the way regardless of the final numbers, FCC Commissioner Mike O’Rielly said Tuesday in remarks at a Politico Live 5G event. O’Rielly predicted that Congress will look to do another auction in the “near future” to get more budget offsets. Spectrum auctions are one of the easiest places for Congress to look for funds, he said. “In every budget negotiation that I was part of, spectrum was part of the conversation,” said O’Rielly, a former Hill staffer.
The Senate Communications Subcommittee scheduled a spectrum hearing for Thursday, as expected earlier in February (see 1702100051). It said Friday the hearing will be at 9:30 a.m. in Dirksen G50 with the following witnesses: CTIA Vice President Scott Bergmann; Recon Analytics analyst Roger Entner; Microsoft Deputy General Counsel Dave Heiner; Raycom Media President Pat LaPlatney; and Satellite Industry Association President Tom Stroup. The hearing will "explore the future of spectrum policy and how wireless technology benefits consumers and the economy," the committee said. "It will also examine evolving market demand for licensed and unlicensed spectrum and the Federal Communications Commission’s recent spectrum auctions.”
Rising prices in some spectrum auctions worldwide are leading to “more expensive, lower quality mobile broadband services,” the GSMA said in a report released Wednesday, “Effective Spectrum Pricing.” The average final prices paid in auctions increased 250 percent from 2008 to 2016, “with the most exorbitant price tags often influenced by policy decisions,” the GSMA said. “The era of judging the success of auctions based on headline-generating revenue figures is over,” said Brett Tarnutzer, GSMA head of spectrum and a former FCC official, in a news release. “The damage done to consumers -- and the wider digital economy -- by policies that artificially inflate spectrum prices has been too great. While auctions remain an effective means of awarding spectrum, regulators should adopt spectrum policies that focus on maximising the benefits for society, rather than simply driving up the cost of spectrum.”