With both houses of U.S. Congress coming under Republican leadership, it appears increasingly likely that reform of at least some of the laws governing the telecommunications sector could take place in 2015. Republicans on the House Committee on Energy and Commerce recently offered a preview of their telecom agenda with the release of a Compilation of Policy Proposals. The House policy document proposes two key telecom agenda items for future legislative action: reforming the procedures governing the primary telecommunications regulator, the Federal Communications Commission (FCC), and increasing commercial access to government-controlled spectrum. While it is too early to know whether these proposed legislative changes will be adopted, they could significantly alter the FCC’s rulemaking processes and increase the number of wireless spectrum auctions in years to come.
Reforming the FCC’s administrative processes is a perennial issue for both Democrats and Republicans, although recent Congresses have failed to enact serious reforms. In March 2014, however, the House took the notable step of unanimously passing the FCC Process Reform Act (Act), suggesting that new telecommunications legislation could finally be on the horizon. That bill died in the Senate, but House Republicans suggested in their Policy Proposal that they will seek to resurrect the Act as part of their goal to encourage the FCC to “engage in judicious policymaking.” Recent statements by the two Republican FCC Commissioners alleging that consensus-based decision-making has been “abandoned” by current FCC leadership and calling for Congressional reforms suggest that the Act could have at least some internal support at the agency.
According to House Republicans, “genuine, long-term reform” of the FCC must come from Congress, rather than through internal Commission policies that could be changed every time the FCC comes under new leadership. To that end, House Republicans have proposed legislation requiring that the FCC clarify its administrative processes. Specifically, under the bill, the FCC would have to establish clear deadlines for actions and minimum periods for public comment, be barred from placing large amounts of data into the record immediately before the close of a public comment period, and have to publish the text of proposed rules before they are adopted to allow commenters to focus their filings. The Act would also impose binding shot clocks for resolving many FCC actions; require the Commission to file an annual “scorecard” with Congress on its compliance with the new legislation; and create an exception in the Sunshine Act to allow bipartisan groups of Commissioners to engage in non-public, collaborative discussions.
Government Spectrum Policy
The House Republicans also expressed their desire to reduce the amount of government-controlled spectrum and reallocate spectrum for use by private carriers and other commercial entities. The Policy Proposal notes that spectrum is one of the most in-demand resources, and that the federal government remains the biggest single user of spectrum. The House Republicans expressed their strong preference for auctioning federal spectrum for commercial use and shared doubts about the technical challenges posed by public/private sharing of spectrum resources.
The proposed Federal Spectrum Incentive Act (FSIA), which has yet to pass the House, would amend the 2004 Commercial Spectrum Enhancement Act (CSEA) and incent federal users to relinquish their spectrum for commercial auction. As drafted, the FSIA would allow federal users to either relocate or terminate their operations, and federal agencies relinquishing spectrum would receive a percentage of net spectrum auction proceeds. According to House Republicans, the FSIA would simultaneously reward agencies for giving up their spectrum rights and encourage them to make their spectrum use more efficient.
One potential means to stretch finite spectrum is to improve technologies that allow spectrum users to co-exist without interference on the same or proximate bands. House Republicans expressed skepticism regarding technology-based solutions to solving the spectrum crunch, however, and warned that they are likely to oppose government-imposed performance standards that they suggest can result in needless over-engineering of devices to prevent unlikely, worst-case scenarios.