The Federal Communications Commission (FCC) has been charged with ensuring that the finite amount of spectrum is distributed and utilized efficiently. One of their most important responsibilities is allocating spectrum (electromagnetic radio waves) for commercial use, such as phone companies employing wireless services and 5G. In 1993, Congress gave the FCC authority to use competitive bidding to assign spectrum to commercial users. They do this by conducting auctions in which carriers bid for the most desirable bands of spectrum. Different bands have different functions due to their wavelength and amplitude. The agency has had tremendous success pioneering the efficient use of spectrum bands through competition, allowing our connected world to flourish. However, some agencies have challenged the FCC’s expertise, frustrating the FCC’s goal of making unused spectrum commercially available.

The Current Dispute

Back in 1999, the FCC allocated the 5.9 GHz band to the Department of Transportation (DOT) for transportation-related communications. But since 1999 this spectrum has been severely underutilized, and as a result the FCC took action to reallocate the spectrum for both unlicensed broadband and automotive use. In response to this, DOT released a study undermining the FCC’s action, arguing that “there will be a significant, negative degradation of transportation safety communications and the ability to support the range of vehicle to vehicle (V2V), vehicle-to-infrastructure (V2I), and public safety functions as currently defined.” The FCC order ensured that there would be gaps of unused spectrum reserved as guardrails to prevent interference, addressing many of the concerns raised by DOT.

As a result of DOT’s action, in March the R Street Institute joined with nearly a dozen other organizations from across the political spectrum calling on Congress to resolve the interagency dispute between DOT and the FCC regarding which agency has authority over the 5.9 GHz spectrum band deployment. But this is hardly the first time such an issue has arisen.

Previous Disputes

In 2019, the National Oceanic and Atmospheric Administration (NOAA) and the National Aeronautics and Space Administration (NASA) argued that U.S. forecasting capabilities would degrade if the FCC proceeded with its plan for the 24 GHz band that had been recently auctioned. When allocating the 24 GHz band, the FCC intentionally left guardrails (gaps between the 24 GHz band and 23.8 GHz band) in place to avoid the interference NOAA feared would happen with the critical 23.8 band used for weather research. Though this spectrum has been allocated and used, the fears have yet to be realized. Once again, an agency that is not the primary spectrum regulator raised a red flag in the eleventh hour, despite multiple opportunities to coordinate and communicate with the FCC.

More recently, the Federal Aviation Administration (FAA) raised concerns that the auctioned C-Band spectrum would impede aircraft safety. The FCC considered this before awarding the bands and generating $81.11 billion of dollars in revenue for the treasury. But the FAA’s complaints led to a delay in rollout that could have been easily resolved if proper interagency coordination occurred. This is a problem. American businesses and competitive industries should not have to wait months or years for a government drowning in red tape to resolve a needless dispute.

The Path Forward

Fortunately, in February, the FCC and the National Telecommunications and Information Administration (NTIA) announced a new initiative to “improve U.S. government coordination on spectrum management.” As both the NTIA and the FCC manage spectrum resources, this is a necessary and critical step to ensure that these agencies collaborate. Additionally, Congress is considering legislation that would require the FCC and the NTIA to update a Memorandum of Understanding (MOU) written in 2003. The purpose of the MOU is to improve the process for spectrum allocation disputes, ensure spectrum is used efficiently and encourage the agencies to collaborate effectively.

However, while collaboration between the FCC and the NTIA is important, it does not address concerns with other interagency disputes. These agencies lack the expertise and resources to address spectrum concerns. As a result, the FCC continues to struggle with interference from agencies like the FAA, NOAA, NASA and DOT. To avoid this, the federal government needs to speak with a unified voice on spectrum policy. The FCC has worked to ensure that the agency’s actions are open, transparent and receptive to public comment: orders put out by the agency are shared in advance and receive a number of public comments before being voted on at the open meeting. If agencies have concerns about a spectrum matter, they have the opportunity to file comments in the record, engage in ex partes and coordinate meetings to raise the issue directly. Agencies without expertise or authority on spectrum should not be publicly releasing statements that contradict other agencies. Executive agencies must work in good faith with the FCC to ensure that their concerns are addressed.

As is highlighted by the recent DOT complaint, the government has undermined its own efforts, causing confusion and unnecessary delays that cost taxpayer dollars and time. Agencies have avenues to raise apprehensions without creating interagency conflicts. A unified government needs to coordinate to alleviate concerns and ensure that unnecessary and unproductive interagency disputes over spectrum allocation do not keep happening.

Image:  jaiz anuar