Spectrum Bill Sample for Legal Needs Made Easy

Spectrum bill sample for Legal

Welcome to this ISART 2022 tutorial on the drivers and authorities for spectrum repurposing and sharing. I am Peter Tenhula, Senior Fellow with the Spectrum Policy Initiative at the Silicon Flatiron Center for Law, Technology, and Entrepreneurship at the University of Colorado, Boulder. Before retiring from federal service in 2021, I served as Deputy Associate Administrator in the Office of Spectrum Management at the National Telecommunications and Information Administration (NTIA). I also worked at the Federal Communications Commission (FCC) for a little more than 15 years and had a job in the private sector for about six years between the FCC and NTIA. This tutorial will provide a brief overview on some of the legal, regulatory, and policy drivers of spectrum reallocation initiatives in the United States. I do not address every band that has recently been reallocated for new or shared uses, nor do I cover the various economic and technical drivers that help support these policy decisions. By the way, I worked on many of these initiatives at NTIA or in the FCC, so please note that the tutorials represents my own personal views and perspectives. Anything presented here does not necessarily represent the views of NTIA, FCC, Silicon Flatirons, or any of my other former employers. In this tutorial, I will first give some background on the original statutory and historical framework governing spectrum allocation and reallocation policies in the U.S. Then I'll give some modern examples and trends involving congressionally-driven reallocations and spectrum auctions, along with other domestic and international drivers. ing to the first head of NTIA and former FCC general counsel Henry Geller, he said, quote, Section 303c of the 1934 Communications Act authorizes the FCC to assign bands of frequencies to various classes of stations and to assign frequencies for each individual station. The first of these functions is considered to be the Commission's allocation authority. While the latter serves as a mandate to make specific frequency assignments and authorizations, end quote. In his 1978 congressional testimony, Geller pointed out that there is no explicit frequency allocation authority in the statute. Nor is any one governmental entity provided the authority to allocate spectrum to the various classes of stations. The division of the spectrum between federal and nonfederal users and the sharing of certain frequency bands between both groups is accomplished by coordination between NTIA and the FCC. This slide shows excerpts from the original law, the 1927 Radio Act that set up this dual scheme. On the left is Section 4 of the 1927 Act, which is the same language that can be found in Section 303 of the current law. On the right is Section 6 of the 1927 Act, which is the President's authority to assign frequencies to each class of radio station, which is now contained in Section 305 of the Communications Act. This provision, Section 6, also set forth the President's original powers in the event of war or national emergency, which is now found in Section 706 of the Communications Act. The President's authority under Section 305 has been delegated to NTIA, but the Section 706 authority has not. While this is a very simplified version of the legal origin story for the Dual Spectrum Management Authority granted to the FCC, the President, and NTIA, a 2014 Congressional Staff White Paper, describes the situation as this: distinctions between federal or nonfederal bands of spectrum are administrative creations made through agreements between the FCC and NTIA. The first official table of frequency allocations was established a few months after enactment of the Radio Act in February in 1927. The first table was not adopted by the new Federal Radio Commission, but was part of the International Radio Telegraph Convention held in Washington, DC in the fall of that same year. They called it the table of "distribution and use of frequencies" from 10 kilohertz to 23 megahertz. The services or classes of stations listed in this first table included fixed, mobile, maritime mobile, broadcasting, radio beacons, air mobile services, direction finding, and amateurs. Only a few of the first allocated bands were shared among multiple services. Frequencies between 23 MHz and 60 MHz were designated for amateurs and experiments or labeled as not reserved. Over the next several decades, this international table of allocations was modified and expanded at regular international radio conferences to add services and bands. Now let's fast forward to the 1990s. To date, there have been seven pieces of legislation in the U.S. directing the repurposing of spectrum. In every case, these congressional mandated reallocations were tied to larger budget or spending bills. Why is this? Well, in one word, auctions. It all started in 1993, when Congress first authorized the FCC to conduct spectrum auctions in the Omnibus Budget Reconciliation Act of 1993, a mammoth bill that dealt with a number of spectrum and non-spectrum budget policy issues. In order to raise money for other unrelated spending initiatives in the bill, Congress mandated transfers of spectrum from federal government use to non-government or mixed or shared use. In the 1997 Budget Act, Congress required the acceleration of certain government spectrum repurposing and mandated the reallocation of some of the UHF television broadcast band for commercial use to be auctioned and some for public safety use not to be auctioned. Congress also added Subsection Y to Section 303 of the Communications Act, specifically authorizing the FCC to, quote, allocate electromagnet spectrum so as to provide flexibility of use, end quote, if certain conditions were met. Auctions for flexible use licenses in the 1710 to 1755 MHz band for Advanced Wireless Services, or AWS-1, and the 700 MHz band were some of the results of the 1993 and 1997 statutes. In the 2002 Auction Reform Act, Congress eliminated several statutory auction deadlines imposed by the 1997 Budget Act. Then, after a 15-year hiatus, Congress got back into the spectrum reallocation game in 2012 as part of the Middle Class Tax Relief and Job Creation Act of 2012, which ultimately led to the auctions of more television spectrum in the 600 MHz band and two bands reallocated from federal government use: the 1695 to 1710 MHz band and the 1755 to 1780 MHz band, or AWS-3. The 2015 Spectrum Pipeline Act required NTIA and the FCC to identify 130 MHz of federal and nonfederal spectrum for repurposing. Several bands are subject to feasibility studies under this law. The Mobile Now Act of 2018 required the identification of additional spectrum for repurposing and called for various studies and reports related to spectrum repurposing of certain spectrum bands. More recently, the Beat China for 5G Act in 2020 set a deadline for the FCC auction of the 3452 to 3550 MHz band, which was reallocated from federal government use and auctioned in record time. The latest legislation that has been enacted was part of the 2021 Infrastructure Bill, which provides for further assessment of the 3100 to 3450 MHz band and an FCC auction by November of 2024. When the FCC repurposed the 2 GHz microwave bands for mobile personal communication services (PCS) in the early 1990s, it required the PCS auction winners to directly reimburse displaced microwave licensees for their relocation costs. In the Balanced Budget Act of 1997, there was a new provision that authorized federal entities to accept cash or in-kind payment as compensation for costs associated with vacating spectrum transferred from federal to nonfederal use. However, auction winners were not obligated to provide compensation or negotiate with displaced federal spectrum users. In 1998, the Strom Thurmond National Defense Authorization Act modified the 1997 Balanced Budget Act provisions to require auction winners to compensate any federal entity affected by a relocation in advance of incurring any relocation costs. However, before they could be applied to any particular spectrum band, these initial negotiation-based cost reimbursement mechanisms were replaced with a completely different federal cost reimbursement approach. The 2004 Commercial Spectrum Enhancement Act, or CSEA, adopted the Spectrum Relocation Fund (SRF) approach, which was expanded in the Middle Class Tax Relief Act and Job Creation Act of 2012 to cover spectrum sharing costs incurred by federal agencies. The SRF is funded by a portion of auction revenues for reallocated government spectrum bands and affected agencies are reimbursed directly from the fund. This Spectrum Pipeline Act of 2015 established a method for federal agencies to tap into the Spectrum Relocation Fund to conduct sharing feasibility studies and research that increases the likelihood of making additional federal spectrum available for reallocation and auction, including for shared use. Early legislation listed on the previous slide excluded certain types of allocations from FCC auctions, including broadcasting and public safety services. Unlicensed spectrum is, by its nature, also exempt from auctions. In 1997, Congress lifted the auction limit for broadcasting licenses. But in 2000, as part of the ORBIT Act, Congress restricted the use of auctions for spectrum allocated for the provision of international or global satellite communications services. The NDAA for FY2000 included a couple of interesting provisions. The first one required the president to reclaim or take back to federal spectrum bands previously identified for repurposing for exclusive federal government use on a primary basis by the Department of Defense. The other provision established certain procedures and safeguards whenever the Department of Defense is required to surrender use of spectrum to ensure that replacement bands are available that have comparable technical characteristics and capabilities. Along the lines of one of the most puzzling mysteries of life involving chickens and eggs, sometimes it's not obvious which comes first: Congressional action compelling a spectrum reallocation, or something else? More often than not, the repurposing wheels are set in motion by a White House or FCC initiative that is then followed by a congressional action, especially when, as the recent trends on the prior slide show. Congress needs to use auction revenues to pay for something else in the spending or budget bill. This slide identifies just a few examples where Congress did not get involved in driving a repurposing effort from the start or at all. The first examples present a couple rare cases where nonfederal spectrum was repurposed for government use at the request of the White House or NTIA. In both cases, a compelling need on behalf of national defense led the FCC, without notice and comment, to quickly reallocate spectrum for new federal applications. The D.C. Circuit Court of Appeals in the 1959 Bendix case upheld the FCC action and affirmed the President's broad powers as commander in chief, which, as I discussed at the beginning of the tutorial, is preserved in Section 305 and 706 of the Communications Act of 1934. Presidential memoranda represent a recent trend that helps mobilize the entire executive branch to collaborate with NTIA and the FCC to find federal and nonfederal spectrum to reallocate for new wireless mobile services. For 3G and 4G mobile services, Presidents Clinton and Obama issued memos to get the ball rolling. Then Congress stepped in with the Auction Reform Act of 2002 and the Middle Class Tax Relief Act of 2012. The President's Council of Advisors on Science and Technology Policy, or PCAST, got into the spectrum allocation game in 2012 with his report entitled "Realizing the Full Potential of Government-Held Spectrum to Spur Economic Growth," which led to another presidential memo in 2013 and spurred the FCC Citizen Broadband Radio Service or CBRS. More recently, the Trump White House's AMBIT Initiative led to the Beat China for 5G Act in 2020, which required the FCC reallocation and auction of the 3452 to 3550 MHz band by the end of 2021. However, it was actually the Mobile Now Act in 2020 that required the sharing feasibility assessment of that band. Chicken or egg? Confused yet? Other examples of FCC-driven reallocation initiatives include efforts in the early 1990s and the emerging technologies proceeding that first proposed repurposing fixed microwave spectrum for new mobile services. Leading to the PCS auctions. To implement the 1997 Budget Act, the FCC outlined its reallocation plans in a 1999 policy statement. The FCC's Broadband Plan, which Congress mandated in the American Recovery and Reinvestment Act of 2009, included a chapter on spectrum repurposing and sharing that identified 500 MHz of spectrum that could be made available for wireless broadband services by 2020. Former FCC Chairman Pai in 2018 announced a comprehensive strategy to, quote, facilitate America's superiority in 5G technology, also known as the 5G Fast Plan. The strategy included several high-, mid-, and low-band spectrum bands, along with additional unlicensed bands that the FCC planned to release into the marketplace for flexible use. Last but not least, is the longest running approach to reallocating spectrum since 1927. Regular international conferences have expanded the allocation of usable spectrum from 23 MHz to above 275 GHz. I don't know a lot about the international drivers for repurposing and sharing. Plus, I'm out of time, so I'm going to have to end this tutorial on that disappointing note. Nevertheless, I hope that the information provided in this tutorial was helpful to you. If you have any questions, please feel free to contact me at the email on this slide. Additional information on the status of various bands that are the subject of repurposing or sharing initiatives is available at the hyperlink shown on this slide. Thank you for your attention. I hope you enjoy ISART 2022.