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Congress and the FCC Talk Incentive Auctions, Spectrum, and Your Wireless Future

December 14, 2012 , ,

On
Wednesday, December 12, 2012, the House Energy and Commerce Subcommittee on
Communications and Technology held an oversight hearing on the implementation
of spectrum auctions in an effort to meet the growing demand for wireless
broadband services and fund a nationwide public safety network.  The five FCC Commissioners testified before
the panel on the status of the auctions and their interpretations on how the
auctions will free up additional spectrum and promote competition.  These auctions were part of the Middle Class
Tax Relief and Job Creation Act of 2012. 
For background on the spectrum provisions included in this legislation,
read Harold
Feld’s recap of the legislation
from February of this year.

Public
Knowledge, along with over 370 other organizations and companies, wrote a letter
to Subcommittee Chairman Greg Walden (R-OR) and Ranking Member Anna Eshoo
(D-CA) advocating for the FCC to pursue policies that would protect the future
of unlicensed spectrum.  The potential
economic benefit for unlicensed technologies is tremendous, and the future of
IP innovation through unlicensed spectrum is potentially limitless.  Therefore, it is essential that the FCC be
allowed to design auctions that will enable it to free up new licensed spectrum
and expand unlicensed spectrum resources.

Three
issues that permeated throughout the hearing were (1) an accurate history and
interpretation the intent of the statute’s unlicensed spectrum provisions; (2)
a focus on the spectrum cap; and (3) what role federal spectrum should play in
this discussion. 

Unlicensed
spectrum had its fair share of advocates on the subcommittee, among them,
Ranking Member Eshoo, Energy and Commerce Ranking Member Henry Waxman (D-CA),
and Rep. Ed Markey (D-MA).  Waxman’s
opening statement explained the importance of the spectrum law’s provision,
which allowed the FCC to create guard bands in repurposed broadband spectrum,
which may be used for unlicensed services like “Super Wi-Fi.”  As Waxman noted, the guard bands will
“enhance the value of the spectrum to be auctioned by protecting it from
interference and create a nationwide band of prime spectrum that can be used
for new innovations in unlicensed use.” 
Although Chairman Walden focused on the potential revenue that would be
gained from auctioning more spectrum, even he acknowledged the need for
non-auctionable guard bands.

The
focus on revenue factored heavily into how Members and Commissioners
interpreted the statute, and that interpretation split, predictably, along
party lines.  Republican Members, led by
Walden, expressed concern that removing any spectrum from the auction table
would prevent potential revenue to pay for things to which the Congress has
committed the FCC to fund through the incentive auction revenue.  Ranking Member Eshoo countered this argument
by noting that Section 309 of the Telecom Act explicitly prohibits the FCC from
basing its auction rules around revenue that would be generated from an auction.

Another
point of discussion was the issue of federal spectrum and how it can be
effectively utilized for public use. 
Here, the main point of contention was over sharing federal spectrum (as
was suggested in the PCAST
report from July
of this year) or having the Executive Branch clear entire
bands of federal spectrum to auction it for exclusive licenses.  This conversation, again, split along party
lines with Commissioners McDowell and Pai pushing for releasing more federal
spectrum for auction as opposed to sharing federal spectrum.  Commissioner Rosenworcel spoke of using
incentives to enable federal authorities to use their spectrum more
efficiently.  This is a welcome
discussion about encouraging federal agencies to reallocate or share their spectrum
bands.  As PK has mentioned before,
moving federal functions around to clear blocks of spectrum large enough to be
effective is “technically
difficult, extremely expensive” and not going to occur anytime soon
.

So there you have it: another day and another
chance for Congress to delve into the weedy, technical details of spectrum and
in particular, incentive auctions.  These
auctions will shape the future for wireless communication, and will impact how
and to what degree we are able to use our devices.  The FCC is still accepting comments in the
record for their Notice of Proposed Rulemaking. 
This is the opportunity for the public to weigh in on the importance of
unlicensed spectrum and help shape an open, innovative communications field for
the future.  It will be essential that
the FCC be given the freedom to conduct these auctions without interference
from Congress, as provided by the Middle Class Tax Relief and Job Creation Act
of 2012.