By Christian Kuzdak
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Congress has consistently been involved in spectrum management and the development of new technologies, but in 2022 it has been surprisingly hands off. As we discussed in the first of our three-part retrospective on 2022, spectrum management in the United States is at a point of potential transition. It seems only natural that given the series of high-profile spectrum disputes of the past few years, and the recent slowdown in spectrum repurposing, that Congress would want to weigh in. Below we discuss what Congress has and has not done this year, delve into the dynamics at play, and forecast what to expect in 2023.
Congress and Spectrum Legislation
The House and Senate Commerce Committees generated relatively little spectrum-related legislation in 2022 and limited their exercise of formal oversight of the FCC and NTIA. The House Commerce Committee held one oversight hearing with newly installed Assistant Secretary for Communications and Information Alan Davidson in February, and one with the FCC Commissioners in March. Senate Commerce also held an oversight hearing with Davidson in June but did not hold any FCC oversight hearings. Aside from these, the two Committees combined held only three spectrum-focused hearings over the course of the year.
There are a few reasons for this. Oversight naturally becomes less stringent when a single party controls both Congress and the White House, and a new administration with control of both chambers tends to be focused on a host of other big-ticket items. The Biden administration and Democratic Congress focused their efforts substantially on addressing the COVID-19 pandemic, revitalizing infrastructure, and responding to Russia’s invasion of Ukraine. Telecommunications issues have taken a bit of a back seat, and when they do arise, broadband tends to stand center stage. Moreover, Democrats have had to contend with a mere 50 seats in the Senate, leaving committees evenly split, and forcing them to muster their full caucus to pass anything remotely partisan.
It is under these conditions that Biden FCC nominee Gigi Sohn has failed to achieve confirmation, caught halfway through a byzantine committee process, and bitterly opposed by Republicans. The Democrats’ inability to elevate her to the FCC and secure a majority of Commissioners has been one of the largest impediments to Congress influencing spectrum policy in 2022. The FCC, split 2-2, continues to act on a mostly bipartisan basis.
Legislation has faced many of the same hurdles, but some issues are impossible to ignore. Earlier this year, Congress faced a moment of truth as FCC auction authority threatened to lapse for the first time in history. Lawmakers punted, pushing the deadline to December 16 at the last moment. As December 16 approached, they opted to punt again, this time only for a week. Behind the scenes were a series of fierce negotiations in and between both the House and Senate Commerce Committees regarding the length of extension, whether to include a host of other spectrum-related provisions, and if so, what those should be. The only substantial bill to come out of all this was the House-passed Spectrum Innovation Act of 2022 (H.R.7624), which would have extended authority for 18 months, and directed auction proceeds to the FCC’s Secure and Trusted Communications Network Program, Next-Generation 911 services, and NTIA’s Incumbent Informing Capability (IIC) concept. None of this made its way into the eventual funding deal secured at the proverbial eleventh hour on December 23. Still, it signals that Congress has not forgotten about spectrum issues, and we expect to see a suite of spectrum bills reintroduced in 2023.
Congress also signaled its interest in satellite issues throughout the year, particularly with the last-minute introduction of a trio of significant bills in December. The Secure Space Act (H.R.9464) would build on Congress’ aggressive approach toward Chinese telecommunications equipment vendors by amending the existing Secure and Trusted Communications Networks Act of 2019 to prohibit the FCC from granting market access or licenses to blacklisted foreign vendors. Other bills seem to be in response to market forces. For example, the Advanced, Local Emergency Response Telecommunications (ALERT) Parity Act (H.R.9569) would direct the FCC to enable satellite operators to apply for special spectrum authorizations for emergency connectivity. This comes as a rash of satellite operators have been announcing partnerships with mobile network operators to provide such services (T-Mobile, Apple, AT&T, Verizon, and others). Likewise, Congress seems to be considering legislation that would prompt the FCC to update its satellite licensing rules just as the FCC is has begun to do so of its own accord. While all these bills were issued too late to become law this session, we expect them to return in 2023 as well.
While a variety of factors made Congress’ footprint on spectrum policy relatively small in 2022, we expect this to change dramatically in 2023. There is a good chance the FCC will reach full strength in the first half of the year, whether the newest member is Sohn or another candidate, prompting a flurry of FCC activity. A Republican-controlled House is unlikely to leave that activity unchecked. Simultaneously, long-simmering negotiations on spectrum legislation will likely finally lead to a compromise in the newly divided Congress. The situation broadly will remain dynamic as Congress responds to both NTIA’s administration of the Broadband, Equity, Access, and Deployment (BEAD) program and possible issuance of a new National Spectrum Strategy.
The views and opinions expressed in this blog post are those of the writer and do not necessarily reflect the views or positions of any entities they represent.