The Federal Communications Commission’s authority to auction unused spectrum expired almost two years ago and Congress has failed to extend it.
Former Chair Jessica Rosenworcel called several times for lawmakers to restore the authority. She said in 2023 that auctions “are an indispensable tool for harnessing the promise of new wireless technologies while also spurring economic growth, creating jobs and strengthening our national security and global leadership.”
Rep. Rick Allen (R-Georgia) introduced a bill this month to renew the commission’s spectrum authority.
The situation has not sparked much concern among broadcast industry observers so far, given that demand for a new filing window for AM or FM spectrum appears limited in the near term.
‘Falling Behind’
Congress first authorized the FCC in 1993 to use competitive bidding to grant licenses for the rights to use specific frequencies for commercial wireless communications. It extended the authorization on several occasions before letting it lapse in early 2023.
The FCC says auctions are an effective means to manage spectrum access and use. When Rosenworcel made her remark, the FCC had held 100 auctions and had raised more than $233 billion in revenues.
Brendan Carr, now chair, has talked about a “next broadcast spectrum auction,” according to FCC watchers.
“We’re falling behind without a real plan to get more spectrum out there, so we’ve got to get going,” Carr told an audience of policy experts and industry leaders at a session at last year’s CES, according to Bloomberg.
Many observers say the situation has had little impact on radio.
“There simply isn’t much broadcast spectrum out there to auction off. And, perhaps more importantly, there isn’t too much demand,” said Brad Deutsch, office managing director and principal at Foster Garvey PC, commenting prior to the change in administrations.
“That said, if the broadcast multiple ownership limits, and especially the radio subcaps, were to loosen, which some folks are suggesting might happen under the upcoming Trump administration, that might produce some new demand.”
Attorney David Oxenford, in his Broadcast Law Blog, wrote recently that the lack of auction authority can have a limiting effect on the FCC’s ability to open commercial filing windows.
While the commission can use a points system to resolve mutually exclusive applications in noncommercial windows, he noted, decisions as to who will be awarded a contested commercial frequency are made through auctions.
New broadcast filing windows were uncommon even before the interruption in auction authority.
“There has been no window for new AM stations in well over 20 years, except for special windows to allow applicants for channels where station licenses had been surrendered to the FCC,” Oxenford wrote.
“And no window for new FM translators has been open since 2003, except for the special windows for translators to be used with AM stations, and the last of those windows closed in 2017.”
And he said there has not been a window for filing for new FM stations since 2021, immediately after the pandemic; he said many channels in that auction went unsold and could be reauctioned at some point.
For now the FCC has been relegated to opening windows for applicants not subject to auctions, like the window for new low-power FM stations in 2023.
Oxenford said the difficulty of getting Congress to resolve complex issues in the absence of an immediate crisis or broad industry consensus may play a role in this lack of resolution.
Losing FCC Brainpower?
Gregg Skall, an attorney at Telecommunications Law Professionals and a Radio World contributor, said the issues holding up auction authority don’t have much to do with broadcast. “Spectrum auction authority currently is wrapped up in a broader set of telecommunications- related negotiations in Congress,” he said.
There have been proposals in Congress to extend the authority, but Republicans want to be more aggressive in terms of trying to auction the 3.1–3.4 GHz band, used by the Department of Defense, while Democrats have been more hesitant to move forward quickly on that band, Skall said.
Scott Flick, a partner with law firm Pillsbury Winthrop Shaw Pittman, says in the short term the impact from the impasse on broadcasters is small. He too noted that the process for resolving MX groups differs between noncommercial and commercial spectrum.
“This could be an issue if there are mutual exclusive applications for a proposed allotment and the two parties are unable to come to an agreement,” Flick said. “If they can get what they want and engineer a solution and not interfere with each other, you don’t have a need for selecting, and if the FCC doesn’t need to select the auction authority doesn’t kick in. You only get an auction if there are conflicting applications.”
Congress may look to exert more control over the broader auction authority of the FCC, Flick believes.
“Perhaps in the future, if there is ever an auction of FM spectrum the FCC might need to get special authority from Congress to do it,” Flick said. “These are policy decisions, and Congress might want more of a say. That way Congress can specify where it wants the money from the spectrum to go.”
Seth Williams, member at Fletcher, Heald & Hildreth PLC, says nonbroadcast wireless auctions are likely to be the most affected right now.
The FCC’s Wireless Telecommunications Bureau opened a docket recently to explore how it could use its existing regulatory tools to roll out technologies like 5G. Comments in the record didn’t include any responses from broadcasters.
“The number of wireless auctions has significantly outpaced the number of broadcast auctions in recent years, and the FCC has some ability to get broadcast allotments into use without auctions, such as the NCE and LPFM windows,” Williams said.
Williams said the FCC’s lack of power to originate spectrum auctions doesn’t necessarily weaken the commission.
“It’s probably more accurate to say it weakens the U.S. as a leader in spectrum allocation and management. Ultimately, the efficient allocation of spectrum benefits businesses that depend on spectrum access and their customers across the country.”
Foster Garvey’s Deutsch also pointed out a less obvious consequence.
“The FCC is running the risk of losing its expert auction staff — game theory experts, economists, lawyers, etc.” he said. “It’s an understatement to say that FCC auctions are complicated events, and it requires lots of expert staff to run the FCC auctions properly.”
Democratic Commissioner Anna Gomez made that argument in public remarks in October. According to the website Broadband Breakfast, Gomez said the absence of auction authority has hindered talent retention and led to an atrophy in agency expertise and loss of credibility in relation to spectrum management in other countries.
In December, the website quoted House Communications and Technology Subcommittee Chair Rep. Bob Latta (R-Ohio) as saying he hopes the authority to conduct spectrum auctions can be restored in a budget reconciliation bill this coming year.
For now, wrote David Oxenford on his blog: “Until this congressional issue is resolved, don’t expect any big windows for commercial broadcast frequencies. Even when it is resolved, there will likely be a backlog of auctions in all FCC services, not just broadcast ones, that will mean that these broadcast windows will likely trickle out over time. Let’s all hope that Congress acts quickly on to resolve the lack of FCC auction authority.”
This article initially appeared on the website of Radio World, sister brand to TV Tech.
