Joel Thayer: Getting One Big Beautiful Spectrum Pipeline by 2028
Notifying NTIA is not the same as identifying spectrum for auction, and the FCC should use that difference to keep 2028 auctions alive.
Nikola Tesla prophesied in 1926 that “[w]hen wireless is perfectly applied…[w]e shall be able to communicate with one another instantly, irrespective of distance.” He went on to predict that we would be able to witness events around the world “just as though we were present.”
A century later, wireless networks far exceed even Tesla’s imagination. Phones, tablets, smart appliances, connected medical devices, and countless other technologies all run on spectrum. And with the wider deployment of 6G, artificial intelligence, and robotics, we are on the cusp of another wireless revolution that might make even Tesla’s head spin.
The good news is that Congress has positioned the United States for a series of major spectrum wins. The Working Families Tax Cut Act restored the Federal Communications Commission’s auction authority and established an ambitious spectrum pipeline, including federal spectrum that could be repurposed for commercial use.
But there are two hitches.
The first is timing. Federal law requires the FCC to “notify” the National Telecommunications and Information Administration at least 18 months before the commencement of an auction of eligible federal frequencies. That means the clock is already ticking. Even if the FCC provides notice this summer, the first federal-spectrum auction could not begin until spring 2028.
The second hitch is that much of the spectrum that could be auctioned in 2028 is still being studied. NTIA and federal agencies are doing the technical work needed to determine whether several promising bands can be cleared or shared and, if so, under what conditions. The Spectrum Relocation Fund can pay for that research and development—but only while the spectrum is “not identified for auction.”
Put those provisions together and an apparent dilemma emerges. Wait until the studies are finished before notifying NTIA, and the 18-month notice requirement could push an auction beyond 2028. Identify the bands for auction too soon, and the agencies conducting those studies could lose access to the R&D funding they need to finish the job.
Frankly, Congress provided the solution in the words it chose. One law speaks of “notifying” NTIA. The other speaks of spectrum being “identified” for auction.
Those are different words. And courts ordinarily presume that when Congress uses different terms in closely related provisions, the difference is intentional. The FCC therefore can notify NTIA that a band may be auctioned without necessarily identifying that band (or identifying a portion of that band) for auction.
There is precedent for doing exactly that.
In 2013, FCC Chairman Julius Genachowski notified NTIA via letter that the Commission planned to auction multiple federal bands, including 1755–1780 MHz, even though work on that band was still underway. As the FCC explained at the time, including the band in the notice would “preserve the possibility of auctioning it.”
That same approach makes sense today.
Four bands are strong contenders for potential auction in 2028. NTIA has already identified a portion of 1675–1695 MHz for repurposing. NTIA and federal agencies are still studying spectrum at 2700–2900 MHz, 4400–4940 MHz, and 7125–7400 MHz. They need to determine what spectrum can be cleared, what can be shared, what systems might need to be modernized, and what protections federal operations may require.
The Commission can “notify” NTIA about all of these bands without treating them as “identified” for auction—that would be reserved for the one slice (1675-1680 MHz) that NTIA itself says is ready to go. Doing so would start the 18-month clock and preserve the possibility of 2028 auctions while allowing federal agencies to continue receiving R&D funding and completing the studies needed to determine whether—and how—the spectrum should ultimately be repurposed.
That is not a loophole. It is how the statutory scheme fits together.
Spectrum has long been a great equalizer for American families. It connects rural patients to distant doctors. It allows people to work remotely. It lets students stream lectures from anywhere. And as wireless networks support more AI, robotics, connected devices, and other emerging technologies, demand for spectrum will only grow.
The FCC has already taken an important step by moving to clear 160 MHz of upper C-band spectrum. Paired with the 280 MHz cleared in the lower C-band, that would create a substantial contiguous block of mid-band spectrum for commercial use. But more will be needed to meet Congress’s spectrum goals and the demands that next-generation networks will place on America’s airwaves.
The path forward is simple. For spectrum ready to move, notify and identify. For spectrum still under study, notify now and identify when the work is done.
Congress chose different words. The FCC should put both of them to work.
Joel Thayer is president of the Digital Progress Institute and an attorney based in Washington. Digital Progress Institute is a nonprofit seeking to bridge the policy divide between telecom and tech. This Expert Opinion is exclusive to Broadband Breakfast.
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