Executive Branch Makes Power Grab to Create a New Spectrum Architecture without Congress

by on September 13, 2012 · 2 comments

The findings and recommendations of the PCAST described above are an obvious attempt by the Administration to usurp Congressional authority and muscle it out of its constitutional jurisdiction over commercial spectrum use.

And one would expect that some in Congress would be downright angry that the Chairman of the FCC, an independent agency, is supporting a Presidential power grab.

The House Energy and Commerce Committee’s Subcommittee on Communications and Technology is holding a hearing this morning to examine how federal agencies and commercial wireless companies might benefit from more efficient government use of spectrum. The hearing is intended to address a report issued by the President’s Council of Advisors on Science and Technology (PCAST) that rejects the Constitutional role of Congress in managing our nation’s spectrum resources and neuters the FCC. The issues raised in the PCAST report should be subject to further study and not implemented through an unconstitutional Presidential memorandum. Only Congress can delegate this authority.

It appears President Obama is engaged in an aggressive strategy to increase presidential authority. After the Republican Party gained control of the House of Representatives in 2010, Obama responded by directing his staff to “push the envelope in finding things we can do on our own.” According to a White House official, “The president isn’t going to be stonewalled by politics,” which is a polite way of saying he plans to ignore Congress and the separation of powers in the U.S. Constitution.

The President began by refusing or selectively enforcing laws that he doesn’t like, such as laws restricting illegal immigration and advancing educational achievement. This has been an effective tactic in instances when Congress refuses to change existing laws, but is unavailing when the President believes a new law should be enacted. Emboldened by his early success with selective enforcement of existing laws, Obama has expanded his Congressional nullification strategy to the creation of new laws by presidential fiat.

A recent example of this new, more imperialistic approach to the presidency involves spectrum – the electromagnetic waves that empower the mobile Internet. The National Broadband Plan issued by the Federal Communications Commission (FCC) in 2010 recommended that 300 MHz of spectrum be made available for mobile Internet use by 2015. The plan also asked Congress to grant the FCC authority to conduct incentive auctions to allocate additional spectrum to mobile use.

There was bipartisan support for incentive auctions in Congress, but House Republicans and Senate Democrats disagreed on the best way to allocate and assign additional spectrum. The Senate preferred an approach that would allocate substantial amounts of spectrum for shared use on an unlicensed basis. The House preferred a licensed approach that would assign all reallocated spectrum through auctions. FCC Chairman Genachowski lobbied publicly against the House bill on this issue and lost. The incentive auction legislation adopted by Congress in February 2012 preserved the FCC’s authority to allocate some spectrum on an unlicensed basis, but required that the bulk of reallocated spectrum be licensed.

The incentive auction legislation also amended the Commercial Spectrum Enhancement Act, which provides auction funding for the relocation of federal wireless systems when federal spectrum is reallocated for commercial use on a licensed basis. Congress also required the National Telecommunications and Information Administration (NTIA), a unit of the Department of Commerce, to submit a report to the President identifying 15 MHz of spectrum between 1675 and 1710 MHz for reallocation from federal to commercial use, which the FCC is required to auction within three years. These provisions make clear that Congress expected federal spectrum would continue to be reallocated for commercial use on a licensed basis.

The Administration, however, decided to create its own spectrum policies by establish a new process through PCAST. In July 2012, PCAST issued a report finding that “the traditional practice of clearing government-held spectrum of Federal users and auctioning it for commercial use is not sustainable.” The report recommends the President issue a memorandum stating, “it is the policy of the U.S. government to share underutilized Federal spectrum to the maximum extent possible.” It should be no surprise that PCAST “believe[s] this shift in direction will also require increased White House involvement” and recommends that the Executive Branch manage this “wholly new approach to Federal spectrum architecture.” The Secretary of Commerce would determine the “conditions of use” that would apply to all users of shared federal spectrum, including commercial users.

The findings and recommendations of the PCAST described above are an obvious attempt by the Administration to usurp Congressional authority and muscle it out of its constitutional jurisdiction over commercial spectrum use. Although the report frequently mentions the FCC, the independent agency would have no meaningful role in this “new architecture.” Downsizing the role of the FCC – and by extension, Congress – in the management of federal spectrum would be a win for this Administration, FCC Chairman Genachowski, and all federal agencies that use spectrum.

  • The Administration wins by giving significant supporters access to additional spectrum on an unlicensed basis. It’s no coincidence that the only industry representatives on the PCAST, Google and Microsoft, were also the biggest proponents of unlicensed spectrum in the dispute between the House and Senate during the incentive auction debate. The recommendations in the PCAST report would turn their loss before Congress into a win before the President.
  • FCC Chairman Genachowski wins by pursuing his preferred spectrum policies without having to subject them to a vote of a bi-partisan panel of Congressionally-confirmed Commissioners. The PCAST report recommends that an Executive Branch agency — the Commerce Department — decide how commercial companies would share federal spectrum, and the Chairman would be the FCC’s sole representative on spectrum matters before the Executive Branch. The Chairman could also count shared federal spectrum toward achieving the spectrum promises made in the National Broadband Plan.
  • Federal spectrum users win by ensuring that they won’t have to vacate their spectrum ever again. The PCAST report assumes commercial users would be required to work around existing and future federal systems.

If the PCAST report’s recommendations were implemented as is, the biggest losers would be Congress, the FCC Commissioners, and the American people. The PCAST report’s rejection of the “traditional” approach to federal spectrum management as “unsustainable” should be a shock to Congress, who mandated a specific policy approach only a few months before the PCAST report was released. It’s certainly surprising that experts recommended the President ignore Congressional legislation and constitutional authority. And one would expect that some in Congress would be downright angry that the Chairman of the FCC, an independent agency, is supporting a Presidential power grab.

Congress is the governmental branch with constitutional authority to manage our nation’s spectrum. Congress delegated exclusive jurisdiction over non-federal use of spectrum to the FCC. (47 U.S.C. § 303) Congress delegated jurisdiction to the Executive branch over the federal use of spectrum only. (47 U.S.C. § 305) Although the Assistant Secretary of NTIA and the Chairman of the FCC meet biannually to conduct “joint spectrum planning,” Congress specified that the purpose of these joint planning meetings is to determine (1) whether spectrum licenses can be auctioned for commercial use, (2) future spectrum requirements, (3) future spectrum allocations, and (4) actions to promote the efficient use of spectrum, including shared use of spectrum to increase commercial access. (47 U.S.C. § 922) Congress thus requires the agencies to consider the reallocation of federal spectrum for licensed use as well as spectrum sharing on a biannual basis. When the agencies recommend significant changes to existing spectrum allocations and assignments, however, Congress has traditionally enacted legislation to implement the recommendations.

The recommendations of the PCAST report would abolish this statutory scheme through a single Presidential memorandum. Whatever its merits, the Constitution requires, and the American people should expect, that the PCAST proposal be subjected to open debate in Congress. The people did not choose the PCAST experts, but they did vote for their Congressional representatives. That still means something, doesn’t it?

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