FCC boss pleads with Congress: Please stop me from auctioning off this spectrum for billions of dollars

In unusual turn of events, Ajit Pai warns he’ll do his job unless stopped

The head of America's communications regulator has asked Congress to intervene to stop him from auctioning off radio spectrum for billions of dollars, warning that if they don’t change the law, he’ll be obliged to do his job.

“An FCC auction of the T-band is a bad idea. But as of today, the law mandates that we do it,” FCC supremo Ajit Pai said in a statement. “It’s unfortunate that Commission resources must be dedicated to laying the groundwork for an auction that will likely fail.”

At the same time that he urged Congress to stop him, Pai also pushed forward the plan to sell off chunks of spectrum that it has been estimated will raise $10bn; the proceeds of which will be used to reallocate those currently using the space.

Without Congress stepping in, the FCC is legally obliged [PDF] to start auctioning off space in the 470-512MHz spectrum (the so-called T-band) before February 22, 2021 with incumbents required to move off the spectrum band no later than two years after that – February 2023. The buyers are presumed to be cellular telcos who need the extra bandwidth.

And just to make things really topsy-turvy, one of Pai’s largest supporters in this matter is Senator Ed Markey (D-MA) who usually has little good to say about the former telecoms exec who tore up net neutrality rules as FCC chair, and is frequently criticized for doing the telco industry’s bidding.

Markey even introduced the Don’t Break Up the T-Band Act in an effort to kill off the auction plan, and an effort to end the auction has been written in the Democrats’ current HEROES Act COVID-19 aid bill that the Republican-controlled Senate has said it will not approve.

So why then?

What is going on? Quite simply, it’s who is currently using the spectrum that is causing the problem: emergency services.

The T-band auction was added to the Middle Class Tax Relief and Job Creation Act of 2012 and the idea was that the billions of dollars made from the sale to network operators and other communications companies would be used to offset the cost of the cut. At the time, it was estimated that the auction would raise $10bn – which would more than cover the cost of moving the current incumbents to a new band and leave some money over.

But, telco critics warn, that is no longer the reality: thanks to other recent auctions of spectrum, cellular networks are not desperate for more spectrum, and so are unlikely to pay $10bn for the space. In turn, the money raised may not cover the costs of shifting the current users off the spectrum, leaving everything in a state of paralysis.

There is little or no incentive for those currently using the T-Band to move away from it: if they wait until they are forced to move, their costs will be covered by the federal government, but if they do it now, they will have to eat those costs themselves. In the meantime, they are stuck, with the FCC putting a stop to any new activity in the band until a reallocation plan is decided.

What’s more, the plan to build out a new national safety network ‒ called Nationwide Public Safety Broadband Network (NPSBN) – is significantly behind what most people had assumed or hoped, so in some cases it is going to be very difficult for the emergency services that use the T-band, which range from San Francisco to Houston to Boston, to find an alternative.

GAO says No

The upshot is that pretty much everyone thinks that moving forward with the T-band auction is a bad idea, including FCC Commissioner and voice of telco-sanity Jessica Rosenworcel, and even the Government Accountability Office (GAO). But there doesn’t appear to be the political awareness or will to make it happen.

Rosenworcel told Congress in March that it should “repeal the provision… that requires the FCC to auction off T-band spectrum one year from now,” adding that “this auction will jeopardize the communications of police and fire officials in New York, Philadelphia, Pittsburgh, Washington, Chicago, Dallas, Houston, Los Angeles, San Francisco, Boston, and Miami.”

And in a statement to The Register, she added:

The FCC is dutifully marching toward an auction that the Government Accountability Office warned won't work and that will threaten critical public safety communications during a pandemic. This is a disaster waiting to happen. We should work with Congress to repeal the provision in the Middle Class Tax Relief and Job Creation Act that requires the FCC to auction off T-band spectrum one year from now.

When the GAO took a look in 2019, it recommended that “Congress consider allowing public safety organizations to keep using the T-Band,” and noted that “in three of the four metropolitan areas we examined, officials said they haven't found a T-Band alternative.”

But despite Pai’s plea – and he made an almost identical one in December 2019 – it looks like the auction will move ahead, raising a huge amount of money and upsetting everybody. ®