House Communications Subcommittee Approves Spectrum Bill

December 1, 2011. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology (SCT) amended and approved the Republican discussion draft [113 pages in PDF] titled the "Jumpstarting Opportunity with Broadband Spectrum (JOBS) Act of 2011".

The vote on final passage was 17-6. All 16 Republican members of the Subcommittee voted for the bill. Rep. John Barrow (D-GA) also voted for the bill. Rep. Bobby Rush (D-IL), Rep. Ed Towns (D-NY) and Del. Donna Christensen (D-VI), the black members of the Subcommittee, did not vote. Rep. Mike Doyle (D-PA) did not vote. Six Democrats voted no. See, roll call.

This bill would give the Federal Communications Commission (FCC) voluntary auction authority, and provide up to $3 Billion for broadcasters relocation expenses out of auction proceeds. It would also provide for allocation of the 20 MHz of contiguous spectrum known as the D Block for a public safety network, funding for that network, and a governance model. As amended, the bill would also address next generation 911 services.

Members of the Subcommittee, and especially Rep. Greg Walden (R-OR) and Rep. Anna Eshoo (D-CA), the Chairman and ranking Democrat on the HCC/SCT, engaged in a lengthy debate.

Rep. Walden wrote in his prepared statement that this bill "didn't just drop out of the sky. It is thoughtful and carefully crafted legislation that finds the right balances. Its provisions were improved as a result of the input and counsel from five hearings, eleven months of discussions with members of both sides of this committee, the FCC and NTIA, the industries that rely on spectrum to bring us television and broadband, broadcasters, amateur radio operators, and public safety officials".

Rep. Fred Upton (R-MI), the Chairman of the full Committee, wrote in his prepared statement that "the minority has been unwilling to make any significant concessions from their original position. As a result, we are moving forward today with a draft that does not have the bipartisan support we had hoped, but one that nonetheless incorporates many of the suggestions made by the Democrats throughout the negotiation process".

Amendments. The Subcommittee rejected on a straight party line vote an amendment offered by Rep. Eshoo that would have substituted the HCC Democrats' bill, HR 3509 [LOC | WW], the "Wireless Innovation and Public Safety Act of 2011", for the Republicans' discussion draft. See, roll call.

The Subcommittee approved by voice vote an amendment offered Rep. Brian Bilbray (R-CA) and Rep. John Dingell (D-MI), who represent districts near Mexico and Canada, respectively, to provide for international coordination with the nations of Mexico and Canada. Gordon Smith, head of the National Association of Broadcasters (NAB), praised the amendment in a release. He stated that it ensures "that U.S. TV stations along the Canadian and Mexican borders aren't repacked out of business".

The Subcommittee approved by voice vote an amendment offered by Rep. Mike Rogers (R-MI) regarding national security restriction on use of funds and auction participation. Rep. Rogers is also Chairman of the House Intelligence Committee (HIC).

The Subcommittee approved by voice vote a manager's amendment offered Rep. Walden that makes 16 technical changes to the bill.

The Subcommittee approved by voice vote an amendment [25 pages in PDF] offered by Rep. John Shimkus (R-IL) and Rep. Eshoo that adds the text of HR 2629 [LOC | WW], the "Next Generation 9-1-1 Advancement Act of 2011" to the bill. These two representatives introduced this as a stand alone bill on July 22, 2011. This language is also in HR 3509, the Democrats' bill.

Rep. Stearns offered and withdrew an amendment that would amend 47 U.S.C. § 154 to allow each of the Commissioners of the FCC to "also appoint an electrical engineer or computer scientist" to his or her personal staff.

Rep. Rush offered and withdrew an amendment that would amend the Internal Revenue Code regarding tax treatment of voluntary relinquishment of some or all of a broadcast television licensee’s spectrum usage rights.

The Subcommittee also approved by voice vote an amendment offered by Rep. Marsha Blackburn (R-TN) that would prevent the FCC from using auction authority to impose network neutrality mandates on auction winners. She called it a "back door means" of imposing network neutrality.

Her amendment states that "In assigning licenses through a system of competitive bidding under this subsection, the Commission may not impose any condition on the licenses assigned through such system that -- (A) limits the ability of a licensee to manage the use of its network, including management of the use of applications, services, or devices on its network, or to prioritize the traffic on its network as it chooses; or (B) requires a licensee to sell access to its network on a wholesale basis."

Members of the Subcommittee in engaged in the same debate that has been repeated for years over the merits of regulation of the network management practices of broadband internet access service providers. Rep. Ed Markey (D-MA) gave the same speech that he has been delivering for decades about the horrors of that bygone era when everyone used AT&T's black rotary dial phones.

Rep. Waxman noted that this provision had been in an earlier draft of the Republican bill, but that Rep. Walden took it out. Rep. Waxman acknowledged that the Republicans have the votes to pass the amendment in Subcommittee, but that this provision would not be approved by the Senate. He called it a "poison pill" that could bring down the whole bill. He said that "you are going to have to take it out eventually".

The amendment does not direct the FCC to repeal its network neutrality rules. However, if enacted into law, it could become significant in the event the Court of Appeals overturns the FCC's network neutrality rules. The current FCC Chairman, Julius Genachowski, might then impose network neutrality obligations upon spectrum auction winners via the auction process. This amendment would have the effect of preventing Genachowski from resorting to this tactic.

Reaction. Gordon Smith stated that the NAB "strongly endorses spectrum provisions in the incentive auction bill passed out of the House telecommunications subcommittee today. This bill balances sound spectrum policy with protections against the potential considerable loss of local TV service by millions of Americans." He added that the "NAB's position on TV spectrum auctions remains unchanged: We support them so long as they are truly voluntary, and so long as TV stations that choose to remain in business are held harmless."

Steve Largent, head of the CTIA, stated in a release that the "CTIA is pleased that the subcommittee approved the JOBS Act to authorize incentive auctions and free additional spectrum for wireless broadband services. We thank Subcommittee Chairman Walden and Chairman Upton for their leadership in moving the bill through today's mark-up. We look forward to seeing this important legislation considered by the full Energy and Commerce Committee as soon as possible

Gary Shapiro, head of the Consumer Electronics Association (CEA), stated in a release before the mark up that the JOBS Act is "an important step toward making more spectrum available for wireless broadband via incentive spectrum auctions." He continued that "Fewer than 10 percent of Americans now rely on over-the-air spectrum to watch TV while the exploding use of wireless devices has made the need for more spectrum increasingly dire. As the holiday shopping season has kicked off, in which consumer electronics account for half of all purchases, spectrum-hungry tablets and smartphones have been among the most popular products. These hot products underscore the need for more spectrum, and we commend Chairman Walden for this legislation."