Some Republican Senators want to renege on their reconciliation spectrum deal

By James Erwin

The Big Beautiful Bill’s spectrum provisions were a historic victory for free market telecommunications policy. A record 800 MHz of spectrum was mandated for auction, the largest pipeline ever. But it could all be for naught if a provision of the Senate-passed National Defense Authorization Act is not fixed by the House.

We have been shouting ourselves hoarse on this blog about the need for auction authority to be restored to the FCC. The longest-ever lapse in auction authority began during the Biden administration and was finally ended by the Big Beautiful Bill. Spectrum auctions have generated over $233 billion since 1994 while wireless investment has added $260 billion to GDP. Of this, $118 billion has come in since just 2018 – demand is growing.

The federal government controls far too much spectrum, and the worst offender is the Department Formerly Known As Defense that refuses to even explain why it needs so much. This prime real estate should be returned to the American people through license auctions. Privatizing a government asset enables greater investment and innovation while offsetting the costs of some of the other good policy in the Big Beautiful Bill. Substantial investments in missile defense and border security do not come cheap, and the (likely underestimated) $88 billion in projected revenue will help pay for these priorities. If DoD wants its Golden Dome, it should be expected to cough up some mid-band frequencies to pay for it.

Despite their support for final passage of the reconciliation package, some Republican senators are now trying to renege on the carefully-negotiated deal to privatize more government spectrum. Months of tough negotiations and presidential involvement resulted in a precarious compromise where DoD took several bands off the table, leaving the FCC with limited options in the C-Band, lower 3.0, and lower 4.0 to put on the market. The narrowed deal also made 200 MHz of non-federal spectrum shared under Citizens Broadband Radio Service licenses vulnerable to auction in addition to 600 MHz of government spectrum. This was considered the acceptable to pass the wider package that prevented a $4.5 trillion tax increase, provided across the board permanent pro-growth tax cuts, repealed Biden’s green energy subsidies, and reformed welfare.

Senators Deb Fischer (R-Neb.) and Mike Rounds (R-SD) carried the Pentagon’s water and resisted privatization every step of the way. But after accepting the spectrum deal, they have gone back on it in the NDAA. A provision inserted by Sen. Fischer “prohibits any modifications to the Department’s systems in key spectrum bands without joint certification from the Secretary of Defense and Chairman of the Joint Chiefs of Staff.” In plain English, the Senate-passed NDAA grants a veto to the deep state over what was already signed into law through reconciliation. There is now nothing to stop the Pentagon from refusing to agree to any auction, defeating the purpose of the Big Beautiful Bill’s Commerce title.

This is not only bad for industries looking to invest and innovate, but threatens CBRS incumbents as well. The FCC is mandated to find its 800 MHz somewhere. While 200 MHz of this can come from shared non-federal users, it does not necessarily all have to come from them. The law lists ranges of frequencies that can be trawled for auctions, including ranges with both federal and non-federal users.

If DoD vetoes every attempt to auction federal spectrum, the FCC will have no choice but to find all of the 200 MHz by revoking CBRS licenses. This should not happen, especially when the FCC is supposed to find the overwhelming majority in bands used by DoD. It is as much an assault on property rights as it is a failure to get the government out of the way of innovation.

The underhanded provision of NDAA empowers bureaucrats to overrule the president and Congress’s clear will, reneges on a deal negotiated in good faith, threatens licenses that do not need to be revoked, and prevents the benefits of spectrum auctions from being enjoyed by the American people. The offending Senators fancy themselves defense hawks, but they are acting like Darth Vader in The Empire Strikes Back – they are altering the deal, and we can only pray they do not alter it any further.

The House should remove this provision to uphold the Big Beautiful Bill and protect its pro-innovation wins.