[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 857 Introduced in House (IH)]
103d CONGRESS
1st Session
H. R. 857
To establish procedures to improve the allocation and assignment of the
electromagnetic spectrum, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
February 4, 1993
Mr. Oxley (for himself, Mr. Gillmor, and Mr. Hastert) introduced the
following bill; which was referred to the Committee on Energy and
Commerce
November 4, 1993
Additional sponsors: Mr. Armey, Mr. Zimmer, Mr. Baker of California,
Mr. Royce, Mr. Cox, Mr. Packard, and Mr. Doolittle
_______________________________________________________________________
A BILL
To establish procedures to improve the allocation and assignment of the
electromagnetic spectrum, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Emerging Telecommunications
Technologies Act of 1993''.
SEC. 2. FINDINGS.
The Congress finds that--
(1) spectrum is a valuable natural resource;
(2) it is in the national interest that this resource be
used more efficiently;
(3) the spectrum below 6 gigahertz (GHz) is becoming
increasingly congested, and, as a result entities that develop
innovative new spectrum-based services are finding it difficult
to bring these services to the marketplace;
(4) scarcity of assignable frequencies can and will--
(A) impede the development and commercialization of
new spectrum-based products and services;
(B) reduce the capacity and efficiency of the
United States telecommunications system; and
(C) adversely affect the productive capacity and
international competitiveness of the United States
economy;
(5) the United States Government presently lacks explicit
authority to use excess radiocommunications capacity to satisfy
non-United States Government requirements;
(6) more efficient use of the spectrum can provide the
resources for increased economic returns;
(7) many commercial users derive significant economic
benefits from their spectrum licenses, both through the income
they earn from their use of the spectrum and the returns they
realize upon transfer of their licenses to third parties; but
under current procedures, the United States public does not
sufficiently share in their benefits;
(8) many United States Government functions and
responsibilities depend heavily on the use of the radio
spectrum, involve unique applications, and are performed in the
broad national and public interest;
(9) competitive bidding for spectrum can yield significant
benefits for the United States economy by increasing the
efficiency of spectrum allocations, assignment, and use; and
for United States taxpayers by producing substantial revenues
for the United States Treasury; and
(10) the Secretary, the President, and the Commission
should be directed to take appropriate steps to foster the more
efficient use of this valuable national resource, including the
reallocation of a target amount of 200 megahertz (MHz) of
spectrum from United States Government use under section 305 of
the Communications Act (47 U.S.C. 305) to non-United States
Government use pursuant to other provisions of the
Communications Act and the implementation of competitive
bidding procedures by the Commission for some new assignments
of the spectrum.
SEC. 3. NATIONAL SPECTRUM PLANNING.
(a) Planning Activities.--The Secretary and the Chairman of the
Commission shall, at least twice each year, conduct joint spectrum
planning meetings with respect to the following issues:
(1) future spectrum needs;
(2) the spectrum allocation actions necessary to
accommodate those needs, including consideration of innovation
and marketplace developments that may affect the relative
efficiencies of different portions of the spectrum; and
(3) actions necessary to promote the efficient use of the
spectrum, including proven spectrum management techniques to
promote increased shared use of the spectrum as a means of
increasing non-United States Government access, and innovation
in spectrum utilization including means of providing incentives
for spectrum users to develop innovative services and
technologies.
(b) Reports.--The Secretary and the Chairman of the Commission
shall submit a joint annual report to the President on the joint
spectrum planning meetings conducted under subsection (a) and any
recommendations for action developed in such meetings.
(c) Open Process.--The Secretary and the Commission will conduct an
open process under this section to ensure the full consideration and
exchange of views among any interested entities, including all private,
public, commercial, and governmental interests.
SEC. 4. IDENTIFICATION OF REALLOCABLE FREQUENCIES.
(a) Identification Required.--The Secretary shall prepare and
submit to the President the reports required by subsection (d) to
identify bands of frequencies that--
(1) are allocated on a primary basis for United States
Government use and eligible for licensing pursuant to section
305(a) of the Communications Act (47 U.S.C. 305(a));
(2) are not required for the present or identifiable future
needs of the United States Government;
(3) can feasibly be made available during the next 15 years
after enactment of this Act for use under the provisions of the
Communications Act for non-United States Government users;
(4) will not result in costs to the Federal Government that
are excessive in relation to the benefits that may be obtained
from the potential non-United States Government uses; and
(5) are likely to have significant value for non-United
States Government uses under the Communications Act.
(b) Amount of Spectrum Recommended.--
(1) In general.--The Secretary shall recommend as a goal
for reallocation, for use by non-United States Government
stations, bands of frequencies constituting a target amount of
200 MHz, that are located below 6 GHz, and that meet the
criteria specified in paragraphs (1) through (5) of subsection
(a). If the Secretary identifies (as meeting such criteria)
bands of frequencies totalling more than 200 MHz, the Secretary
shall identify and recommend for reallocation those bands
(totalling not less than 200 MHz) that are likely to have the
greatest potential for non-United States Government uses under
the Communications Act.
(2) Mixed uses permitted to be counted.--Bands of
frequencies which the Secretary recommends be partially
retained for use by United States Government stations, but
which are also recommended to be reallocated and made available
under the Communications Act for use by non-United States
Government stations, may be counted toward the target 200 MHz
of spectrum required by paragraph (1) of this subsection,
except that--
(A) the bands of frequencies counted under this
paragraph may not count toward more than one-half of
the amount targeted by paragraph (1) of this
subsection;
(B) a band of frequencies may not be counted under
this paragraph unless the assignments of the band to
United States Government stations under section 305 of
the Communications Act (47 U.S.C. 305) are limited by
geographic area, by time, or by other means so as to
guarantee that the potential use to be made by which
United States Government stations is substantially less
(as measured by geographic area, time, or otherwise)
than the potential United States Government use to be
made; and
(C) the operational sharing permitted under this
paragraph shall be subject to procedures which the
Commission and the Department of Commerce shall
establish and implement to ensure against harmful
interference.
(c) Criteria for Identification.--
(1) Needs of the united states government.--In determining
whether a band of frequencies meets the criteria specified in
subsection (a)(2), the Secretary shall--
(A) consider whether the band of frequencies is
used to provide a communications service that is or
could be available from a commercial provider;
(B) seek to promote--
(i) the maximum practicable reliance on
commercially available substitutes;
(ii) the sharing of frequencies (as
permitted under subsection (b)(2));
(iii) the development and use of new
communications technologies; and
(iv) the use of nonradiating communications
systems where practicable; and
(C) seek to avoid--
(i) serious degradation of United States
Government services and operations;
(ii) excessive costs to the United States
Government and civilian users of such
Government services; and
(iii) identification of any bands for
reallocation that are likely to be subject to
substitution for the reasons specified in
section 5(b)(2) (A) through (C).
(2) Feasibility of use.--In determining whether a frequency
band meets the criteria specified in subsection (a)(3), the
Secretary shall--
(A) assume such frequencies will be assigned by the
Commission under section 303 of the Communications Act
(47 U.S.C. 303) over the course of fifteen years after
the enactment of this Act;
(B) assume reasonable rates of scientific progress
and growth of demand for telecommunications services;
(C) determine the extent to which the reallocation
or reassignment will relieve actual or potential
scarcity of frequencies available for non-United States
Government use;
(D) seek to include frequencies which can be used
to stimulate the development of new technologies; and
(E) consider the cost to reestablish United States
Government services displaced by the reallocation of
spectrum during the fifteen year period.
(3) Costs to the united states government.--In determining
whether a frequency band meets the criteria specified in
subsection (a)(4), the Secretary shall consider--
(A) the costs to the United States Government of
reaccommodating its services in order to make spectrum
available for non-United States Government use,
including the incremental costs directly attributable
to the loss of the use of the frequency band; and
(B) the benefits that could be obtained from
reallocating such spectrum to non-United States
Government users, including the value of such spectrum
in promoting--
(i) the delivery of improved service to the
public;
(ii) the introduction of new services; and
(iii) the development of new communications
technologies.
(4) Non-united states government use.--In determining
whether a band of frequencies meets the criteria specified in
subsection (a)(5), the Secretary shall consider--
(A) the extent to which equipment is commercially
available that is capable of utilizing the band; and
(B) the proximity of frequencies that are already
assigned for non-United States Government use.
(d) Procedure for Identification of Reallocable Bands of
Frequencies.--
(1) Submission of reports to the president.--
(A) Within 6 months after the date of the enactment
of this Act, the Secretary shall prepare and submit to
the President a report which specifically identifies an
initial 30 MHz of spectrum, to be made available for
reallocation upon issuance of this report, and to be
distributed by the Commission pursuant to competitive
bidding procedures.
(B) Within 12 months after the date of the
enactment of this Act, the Secretary shall prepare and
submit to the President a preliminary report to
identify reallocable bands of frequencies meeting the
criteria established by this section.
(C) Within 24 months after the date of enactment of
this Act, the Secretary shall prepare and submit to the
President a final report which identifies the target
200 MHz for reallocation (which shall encompass the
initial 30 MHz previously designated under subparagraph
(A) of this paragraph).
(D) The President shall publish the reports
required by this paragraph in the Federal Register.
(2) Convening of private sector advisory committee.--Not
later than 12 months after the enactment of this Act, the
Secretary shall convene a private sector advisory committee
to--
(A) review the bands of frequencies identified in
the preliminary report required by paragraph (1)(B);
(B) advise the Secretary with respect to--
(i) the bands of frequencies which should
be included in the final report required by
paragraph (1)(C); and
(ii) the effective dates which should be
established under subsection (e) with respect
to such frequencies; and
(C) receives public comment on the Secretary's
preliminary and final reports under this subsection.
The private sector advisory committee shall meet at least
quarterly until each of the actions required by section 5(a)
have taken place.
(3) Composition of committee; chairman.--The private sector
advisor committee shall include--
(A) the Chairman of the Commission, and the
Secretary, or their designated representatives, and two
other representatives from two different United States
Government agencies that are spectrum users, other than
the Department of Commerce, as such agencies may be
designated by the Secretary; and
(B) persons who are representative of--
(i) manufacturers of spectrum-dependent
telecommunications equipment;
(ii) commercial users;
(iii) other users of the electromagnetic
spectrum; and
(iv) other interested members of the public
who are knowledgeable about the uses of the
electromagnetic spectrum to be chosen by the
Secretary.
A majority of the members of the committee shall be members
described in subparagraph (B), and one of such members shall be
designated as chairman by the Secretary.
(e) Timetable for Reallocation and Limitation.--The Secretary
shall, as part of the final report required by subsection (d)(1)(C),
include a timetable for the effective dates by which the President
shall, within 15 years after enactment of this Act, withdraw or limit
assignments on frequencies specified in the report. The recommended
effective dates shall--
(1) permit the earliest possible reallocation of the
frequency bands, taking into account the requirements of
section 6(a);
(2) be based on the useful remaining life of equipment that
has been purchased or contracted for to operate on identified
frequencies;
(3) be based on the need to coordinate frequency use with
other nations; and
(4) avoid the imposition of incremental costs on the United
States Government directly attributable to the loss of the use
of frequencies or the changing to different frequencies that
are excessive in relation to the benefits that may be obtained
from non-United States Government uses of the reassigned
frequencies.
SEC. 5. WITHDRAWAL OF ASSIGNMENT TO UNITED STATES GOVERNMENT STATIONS.
(a) In General.--The President shall--
(1) within three months after receipt of the Secretary's
report under section 4(d)(1)(A), withdraw or limit the
assignment to a United States Government station of any
frequency on the initial 30 MHz which that report recommends
for immediate reallocation;
(2) with respect to other frequencies recommended for
reallocation by the Secretary's report in section 4(d)(1)(C),
by the effective dates recommended pursuant to section 4(e)
(except as provided in section (b)(4)), withdraw or limit the
assignment to a United States Government station of any
frequency which that report recommends be reallocated or
available for mixed use on such effective dates;
(3) assign or reassign other frequencies to United States
Government stations as necessary to adjust to such withdrawal
or limitation of assignments; and
(4) publish in the Federal Register a notice and
description of the actions taken under this subsection.
(b) Exceptions.--
(1) Authority to substitute.--If the President determines
that a circumstance described in section 5(b)(2) exists, the
President--
(A) may, within one month after receipt of the
Secretary's report under section 4(d)(1)(A), and within
six months after receipt of the Secretary's report
under section 4(d)(1)(C), substitute an alternative
frequency or band of frequencies for the frequency or
band that is subject to such determination and withdraw
(or limit) the assignment of that alternative frequency
or band in the manner required by subsection (a); and
(B) shall publish in the Federal Register a
statement of the reasons for taking the action
described in subparagraph (A).
(2) Grounds for substitution.--For purposes of paragraph
(1), the following circumstances are described in this
paragraph:
(A) the reassignment would seriously jeopardize the
national security interests of the United States;
(B) the frequency proposed for reassignment is
uniquely suited to meeting important United States
Governmental needs;
(C) the reassignment would seriously jeopardize
public health or safety; or
(D) the reassignment will result in incremental
costs to the United States Government that are
excessive in relation to the benefits that may be
obtained from non-United States Government uses of the
reassigned frequency.
(3) Criteria for substituted frequencies.--For purposes of
paragraph (1), a frequency may not be substituted for a
frequency identified by the final report of the Secretary under
section 4(d)(1)(C) unless the substituted frequency also meets
each of the criteria specified by section 4(a).
(4) Delays in implementation.--If the President determines
that any action cannot be completed by the effective dates
recommended by the Secretary pursuant to section 4(e), or that
such an action by such date would result in a frequency being
unused as a consequence of the Commission's plan under section
6, the President may--
(A) withdraw or limit the assignment to United
States Government stations on a later date that is
consistent with such plan, by providing notice to that
effect in the Federal Register, including the reason
that withdrawal at a later date is required; or
(B) substitute alternative frequencies pursuant to
the provisions of this subsection.
(c) Costs of Withdrawing Frequencies Assigned to the United States
Government; Appropriations Authorized.--Any United States Government
licensee, or non-United States Government entity operating on behalf of
a United States Government licensee, that is displaced from a frequency
pursuant to this section may be reimbursed not more than the
incremental costs it incurs, in such amounts as provided in advance in
appropriation acts, that are directly attributable to the loss of the
use of the frequency pursuant to this section. The estimates of these
costs shall be prepared by the affected agency, in consultation with
the Department of Commerce.
(d) Appropriations Authorized.--There are authorized to be
appropriated to the affected licensee agencies such sums as may be
necessary to carry out the purposes of this section.
SEC. 6. DISTRIBUTION OF FREQUENCIES BY THE COMMISSION.
(a) Plans Submitted.--
(1) With respect to the initial 30 MHz to be reallocated
from United States Government to non-United States Government
use under section 4(d)(1)(A), not later than 24 months after
enactment of this Act, the Commission shall complete a public
notice and comment proceeding regarding the allocation of this
spectrum and shall form a plan to assign such spectrum pursuant
to competitive bidding procedures, pursuant to section 309(j)
of the Communications Act, during fiscal years 1996 through
1998.
(2) With respect to the remaining spectrum to be
reallocated from United States Government to non-United States
Government use under section 4(e), not later than two years
after issuance of the report required by section 4(d)(1)(C),
the Commission shall complete a public notice and comment
proceeding; and the Commission shall, after consultation with
the Secretary, prepare and submit to the President a plan for
the distribution under the Communications Act of the frequency
bands reallocated pursuant to the requirements of this Act.
Such plan shall--
(A) not propose the immediate distribution of all
such frequencies, but, taking into account the
timetable recommended by the Secretary pursuant to
section 4(e), shall propose--
(i) gradually to distribute the frequencies
remaining, after making the reservation
required by subparagraph (ii), over the course
of a ten-year period beginning on the date of
submission of such plan; and
(ii) to reserve a significant portion of
such frequencies for distribution beginning
after the end of such ten-year period;
(B) contain appropriate provisions to ensure--
(i) the availability of frequencies for new
technologies and services in accordance with
the policies of section 7 of the Communications
Act (47 U.S.C. 157); and
(ii) the availability of frequencies to
stimulate the development of such technologies;
and
(C) not prevent the Commission from allocating
bands of frequencies for specific uses in future
rulemaking proceedings.
(b) Amendment to the Communications Act.--Section 303 of the
Communications Act is amended by adding at the end thereof the
following new subsection (u) (indicating that the Commission shall):
``(u) Have authority to assign the frequencies reallocated from
United States Government use to non-United States Government use
pursuant to the Emerging Telecommunications Technologies Act of 1993:
Provided, That any such assignment shall expressly be made subject to
the right of the President to reclaim such frequencies under the
provisions of section 7 of the Emerging Telecommunications Technologies
Act of 1993.''.
SEC. 7. AUTHORITY TO RECLAIM REASSIGNED FREQUENCIES.
(a) Authority of President.--The President may reclaim reallocated
frequencies for reassignment to United States Government stations in
accordance with this section.
(b) Procedure for Reclaiming Frequencies.--
(1) Unassigned frequencies.--If the frequencies to be
reclaimed have not been assigned by the Commission, the
President may reclaim them based on the grounds described in
section 5(b)(2) of this Act.
(2) Assigned frequencies.--If the frequencies to be
reclaimed have been assigned by the Commission, the President
may reclaim them based on the grounds described in section
5(b)(2) of this Act, except that the notification required by
section 5(b)(1) shall include--
(A) a timetable to accommodate an orderly
transition for licensees to obtain new frequencies and
equipment necessary for their utilization; and
(B) an estimate of the cost of displacing the
licensees.
(c) Costs of Reclaiming Frequencies.--Any non-United States
Government licensee that is displaced from a frequency pursuant to this
section shall be reimbursed the incremental costs it incurs that are
directly attributable to the loss of the use of the frequency pursuant
to this section.
(d) Effect on Other Law.--Nothing in this section shall be
construed to limit or otherwise affect the authority of the President
under section 706 of the Communications Act (47 U.S.C. 606).
SEC. 8. COMPETITIVE BIDDING.
(a) Competitive Bidding Authorized.--Section 309 of the
Communications Act is amended to add a new subsection (j) providing
that:
``(j)(1) The Commission shall, subject to the exclusions listed in
paragraph (2) of this subsection, use competitive bidding for awarding
all initial licenses or new construction permits, including licenses
and permits for spectrum reallocated for non-United States Government
use pursuant to the Emerging Telecommunications Technologies Act of
1993 in accordance with the following procedures:
``(A) The Commission shall require potential bidders to
file a first-stage application indicating an intent to
participate in the competitive bidding process and containing
such other information as the Commission finds necessary. After
conducting the bidding, the Commission shall require the
winning bidder to submit a second-stage application. Upon
determining that such application is acceptable for filing and
that the applicant is qualified pursuant to subparagraph (B) of
this paragraph, the Commission shall grant a permit or license.
``(B) No construction permit or license shall be granted to
an applicant selected pursuant to subparagraph (A) of this
paragraph unless the Commission determines that such applicant
is qualified pursuant to section 308(b) and section 309(a) of
the Communications Act, on the basis of the information
contained in the first- and second-stage applications submitted
under subparagraph (A) of this paragraph.
``(C) Each participant in the competitive bidding process
is subject to the schedule of changes contained in section 8 of
the Communications Act (47 U.S.C. 158).
``(D) The Commission shall have the authority in awarding
construction permits or licenses under competitive bidding
procedures to (i) define the geographic and frequency
limitations and technical requirements, if any, of such permits
or licenses; (ii) establish minimum acceptable competitive
bids; and (iii) establish other appropriate conditions on such
permits and licenses that will serve the public interest.
``(E) The Commission shall, within eighteen months after
enactment of the Emerging Telecommunications Technologies Act
of 1993, following public notice and comment proceedings, adopt
rules establishing competitive bidding procedures under this
subsection, including the method of bidding and the basis for
payment (such as flat fees, fixed or variable royalties,
combinations of flat fees and royalties, or other reasonable
forms of payment); and a plan for applying such competitive
bidding procedures to the initial 30 MHz reallocated from
United States Government to non-United States Government use
under section 4(d)(1)(A) of the Emerging Telecommunications
Technologies Act of 1993, to be distributed during the fiscal
years 1996 through 1998.
``(F) The Commission shall take into particular account the
new technological benefits derived from awarding construction
permits or licenses under competitive bidding procedures.
``(G) The Commission shall not exclude any qualified
applicant from bidding for initial licenses or permits for
spectrum under the competitive bidding procedures authorized by
this subsection. In determining qualified applicants, the
Commission shall require an applicant to establish threshold
technical and financial commitment requirements to ensure
against speculative ventures.
``(2) Competitive bidding shall not apply to:
``(A) license renewals;
``(B) the United States Government and State or local
government entities;
``(C) amateur operator services, public radio broadcast
services, public television broadcast services, public safety
services, and radio astronomy services;
``(D) private radio end-user licenses, such as Specialized
Mobile Radio Service (SMRS), maritime, and aeronautical end-
user licenses;
``(E) any license grant to a non-United States Government
licensee being moved from its current frequency assignment to a
different one by the Commission in order to implement the goals
and objectives underlying the Emerging Telecommunications
Technologies Act of 1993;
``(F) any other service, class of services, or assignments
that the Commission determines, after conducting public comment
and notice proceedings, should be exempt from competitive
bidding because of public interest factors warranting an
exemption.''.
(b) Random Selection Not To Apply When Competitive Bidding
Required.--Section 309(i)(1) of the Communications Act (47 U.S.C. 309)
is amended by inserting after ``selection'' the following: ``, except
in instances where competitive bidding procedures are required under
subsection (j) of this section''.
(c) Spectrum Allocation Decisions.--Section 303 of the
Communications Act is amended to add a new subsection (v):
``(v) In making spectrum allocation decisions among services that
are subject to competitive bidding, the Commission is authorized to
consider as one factor among others taken into account in making its
determination, the relative economic values and other public interest
benefits of the proposed uses as reflected in the potential revenues
that would be collected under its competitive bidding procedures.''.
SEC. 9. DEFINITIONS.
As used in this Act--
(1) The term ``allocation'' means an entry in the National
Table of Frequency Allocations of a given frequency band for
the purpose of its use by one or more radiocommunications
services.
(2) The term ``assignment'' means an authorization given by
the Commission or the United States Government for a radio
station to use a radio frequency or radio frequency channel.
(3) The term ``Commission'' means the Federal
Communications Commission.
(4) The term ``Communications Act'' means the
Communications Act of 1934, as amended (47 U.S.C. 151 et seq.).
(5) The term ``Secretary'' means the Secretary of Commerce.
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