On May 13,  the House Energy and Commerce Committee (“E&C Committee”) voted on its portion of the budget reconciliation package which includes a major proposal to identify new radio spectrum bands for auction and to restore the FCC’s long-lapsed spectrum auction authority.  The budget reconciliation proposal directs the National Telecommunications and Information Administration (NTIA) and the Federal Communications Commission (FCC) within two years to identify at least 600 megahertz of spectrum between the 1.3 GHz and 10 GHz frequencies for auction.  The proposal also requires the FCC to complete an auction (with its restored auction authority) for at least 200 megahertz within three years, and to auction the remainder of the spectrum within six years from enactment.  This approach of requiring the FCC to identify a minimum of 200 megahertz of spectrum for auction and to complete such auctions in the near term follows the pattern Congress used in the 1990s to jumpstart growth in the wireless industry. 

The spectrum designated for auction would be allocated on an “exclusive, licensed basis for mobile broadband services, fixed broadband services, mobile and fixed broadband services, or a combination thereof.”  Note that the legislation would carve out from auction-eligible spectrum bands the frequencies between 3.1 GHz and 3.45 GHz, and between 5.925 GHz and 7.125 GHz.  The bill also provides that the auction proceeds would cover “110 percent of Federal Relocation or Sharing Costs.”  The Congressional Budget Office has estimated the auction will raise $88 billion of new revenue; this “score” of $88 billion makes it the second-biggest item in the budget reconciliation bill for the E&C Committee behind changes to Medicare/Medicaid.

It bears mention that the band from 3.1 to 3.45 GHz that is excluded from auction is currently authorized for use by the Department of Defense, which has maintained that sharing the band between federal and commercial systems is “not feasible unless certain regulatory, technological, and resourcing conditions are proven and implemented as part of a coordination framework.”

Meanwhile, the carveout for the 6 GHz band (5.925 GHz and 7.125 GHz) is designed to protect that band which is used to provide fast and reliable wireless connections and is currently allocated for Fixed Services, Mobile Services, Fixed Satellite Services, and unlicensed use.

This proposal to fill the so-called spectrum pipeline is designed to address demands from the major wireless carriers, and others, to make more spectrum available to facilitate future mobile broadband needs and to enable the U.S. to stay abreast of China and other countries who seek to dominate future mobile-based information industries.  Importantly, it is expected that spectrum added to the pipeline would include the highly valued “mid-band spectrum” including those bands 3.7 GHz and 4.2 GHz.  In 2020 and 2021, the FCC auctioned off the lower portion of the C-band (3.7 to 3.98 GHz) to mobile carriers to facilitate 5G development.  In early 2023, lawmakers let the FCC’s spectrum auction authority lapse for the first time since it was established in 1993.

Earlier this year, the FCC released a Notice of Inquiry seeking input on whether the FCC should make additional spectrum available in the Upper C-band for mobile broadband use.  The proposal also includes auction of the 7 and 8 GHz bands, which are used by the military.

On Monday, Senator Maria Cantwell (D-WA), ranking member on the Senate Commerce Committee, wrote Transportation Secretary Sean Duffy a letter inquiring into the risks the spectrum auction poses to aviation safety and the plans for coordination between the upper C-band spectrum and Department of Transportation (DOT) and Federal Aviation Administration (FAA).  Cantwell expressed concerns that auctioning C-band spectrum without coordination with DOT and FAA would repeat mistakes from the 2021 5G C-band rollout, when the FAA had to issue emergency airworthiness directives.

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The E&C Committee heard several proposed amendments and objections from Democrats, mostly proposing alternative uses for the auction proceeds, such as to fund 911 services and a broadband affordability program.  Representative Doris Matsui (D-CA), the top Democrat on the telecommunications subcommittee, proposed adding a requirement for government officials to undergo cybersecurity trainings, citing the recent “salt typhoon” hacks of telecommunications companies and cuts the Department of Government Efficiency (DOGE) has made to the cyber workforce.  The E&C Committee voted along party lines not to adopt Matsui’s amendment.

The E&C Committee voted 29-24 to advance the telecommunications provisions of the reconciliation plan.  The complete E&C Committee package will be included in the omnibus budget reconciliation bill that the House is expected to vote on in the next few weeks, and then the bill will move to the Senate.  The proposal to reinstate the FCC’s plenary auction authority, and to give the agency wide discretion on identifying bands suitable for auction, may encounter difficulty in that chamber given past statements from some Senators about the need to protect DoD spectrum. 

The E&C Committee also reviewed a 10-year nationwide moratorium on the enforcement of state and local laws and regulations that impose burdensome requirements on AI and automated decision systems while exempting laws that promote AI adoption.  For more detailed coverage on this portion of the E&C reconciliation plan, see our coverage here.