Battle of the Bands: Dueling Interests in Spectrum

On Monday, March 11, Sen. Ted Cruz (R-Texas) and Sen. John Thune (R-S.D.), Ranking Members of the U.S. Senate Committee on Commerce, Science, and Transportation and its subcommittee on Communications, Media, and Broadband respectively, introduced the Spectrum Pipeline Act of 2024. Over the last three decades, the Federal Communications Commission (FCC) has utilized a Nobel Prize-winning idea that auctioning spectrum licenses fosters “the entry of new companies into the market” and encourages “the development of innovative wireless technologies.” Spectrum auctions have been a tremendous success, simultaneously generating more than $230 billion for the U.S. Department of the Treasury and serving as a competitive process to award licenses to carriers in a market-friendly manner.

However, a lot has changed in the last 30 years. The demand for spectrum, as well as its dynamic use cases, has increased dramatically, resulting in a broader coalition of users fighting for access to a limited supply. As connected devices become increasingly ubiquitous, unlicensed networks enable these devices to communicate with one another at short range. With the advent of new Wi-Fi standards like Wi-Fi 7, the demand for unlicensed operations is also growing. Congress must renew the FCC’s auction authority while developing a robust pipeline to provide a balance of exclusively licensed, shared, and unlicensed spectrum to meet device and network needs.

The Spectrum Pipeline Act of 2024 aims to address demand for commercial spectrum by requiring the National Telecommunications and Information Administration (NTIA) to identify at least 2500 megahertz (MHz) of mid-band spectrum between 1.3 gigahertz (GHz) and 13.2 GHz that is currently allocated to federal or non-federal users either exclusively or in a shared manner. At least half of that spectrum (1250 MHz) must be reallocated for exclusive high-powered use, to be auctioned as we have done for decades. The bill provides a two-year window in which to identify this spectrum and an additional year to hold an auction for at least 600 MHz, with the remainder to be auctioned six years after enactment. The bill also includes at least 125 MHz to be used explicitly on an unlicensed basis. The remaining 1125 MHz must be allocated as any combination of licensed, shared, or unlicensed spectrum. Most importantly, the bill restores FCC auction authority until 2027.

The FCC has explored and tested novel approaches to spectrum allocation, including protecting unlicensed uses and creating sharing arrangements. While this doesn’t address the needs of exclusive spectrum users, it does provide a compromise and balance between federal and non-federal users. However, while users debate how spectrum should be allocated, the biggest issue is a lack of vacant spectrum available for commercial use. Before any debate between licensed and unlicensed spectrum can take place, Congress must work with the NTIA and other federal agencies to develop a pipeline of commercially viable spectrum.

The NTIA released its National Spectrum Strategy at the beginning of this year. The strategy creates a plan to commission a series of studies to identify bands that could potentially be repurposed from federal use to commercial operations. The agency took it a step further this week with the introduction of its Implementation Plan.

While the NTIA should be commended for working to commercialize spectrum and restore normal order, it is unfortunate that neither its strategy nor its implementation plan creates a commercial spectrum pipeline. While the National Spectrum Strategy Implementation Plan coordinates a series of studies that will take up to eight years to identify bands as candidates for commercial operation, it does not guarantee that any of these studies will result in commercial repurposing of federally held spectrum. At the current pace, it will be years before we identify spectrum, if any, for commercial use.

As the United States continues to fall behind other countries in the amount of available commercial mid-band spectrum, we remain at an impasse. At a time when we are more connected than ever before, neither the NTIA, the FCC, nor Congress have been able to solve this issue or to quickly identify, relocate, and activate more commercial spectrum. However, Sens. Cruz and Thune have introduced legislation that aims to right our course and return America to a position of leadership in wireless technologies.

While the senators should be lauded for their efforts to address spectrum deficiencies and accelerate spectrum strategy, the bill can be improved. First, it does not guarantee a pipeline. While the bill asks for a specific amount of spectrum for allocation, it does not identify specific bands or targets for repurposing. Neither does it provide a means of relocating federal users should a band be identified for commercial operations. If the NTIA is unable to meet the statutory deadline, there is nothing in the legislation that requires the agency to take action. For example, if the U.S. Department of Defense or another federal incumbent refuses to relinquish spectrum, the NTIA would be unable to comply with the bill’s requirements. Currently, their biggest challenge is working with federal users to identify spectrum to repurpose for commercial operations.

Growing demand for both shared and unlicensed spectrum adds another wrinkle, as it could reduce the amount of exclusively licensed spectrum available. While a pipeline of exclusively licensed spectrum is critical, unlicensed and shared users should also have an opportunity to access needed spectrum. Any pipeline bill should emphasize a process that commercializes spectrum once identified for commercial viability. The FCC should then determine the highest and best use of the band and hold an auction if necessary.

As Congress looks forward to addressing America’s spectrum deficiencies, they must work to restore a normal process. First, they must identify bands for commercial operation. Next, they need to relocate any federal incumbent or establish rules for a sharing arrangement between federal and non-federal users. Once a pipeline of spectrum is identified for commercial operations, the FCC should determine which bands are candidates for exclusively licensed, shared, and unlicensed spectrum and plan auctions accordingly.

There are currently two debates happening: one between government agencies on what spectrum is viable for commercial operations and another between commercial users with growing demand for a limited amount of spectrum. Congress should focus on solving the first issue before looking to the second.