Federal Spectrum Coordination: Pitfalls and Progress

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Jack Derwin:  Hello, and welcome to this Federalist Society virtual event. My name is Jack Derwin. I'm Associate Director of the Practice Groups here at FedSoc. Today, we're pleased to host a panel discussion titled "Federal Spectrum Coordination: Pitfalls and Progress," featuring two former NTIA administrators and two additional experts in the field. In the interest of time, we'll keep intros very brief, but you can view all our speaker's full bios at fedsoc.org. To guide today's discussion, we have two co-moderators. Joe Kane is Director of Broadband and Spectrum Policy at the Information Technology and Innovation Foundation, where his work focuses on spectrum policy, broadband deployment and regulation, competition, and consumer protection. Joining Joe is Scott Delacourt, who is a partner at Wiley Rein, where he chairs the firm's FTC practice group.       

 

After the discussion between our panelists, we'll go to audience Q&A if there's time remaining. So please enter any questions for our speakers using the Q&A button at the bottom of your screen. Finally, I'll note that as always, all expressions of opinion on today's program are those of the speakers joining us today and not those of The Federalist Society. Without further delay, the virtual floor is yours, Joe, and Scott.

 

Joe Kane:  All right. Thanks, Jack. And welcome to this webinar. We're going to talk about something that we all rely on every day today, our wireless devices, but something that you probably don't think about the process that leads to them being able to send your messages, your videos, your tweets, and, I guess, now, your threads through the air. And so we also probably don't think about how that spectrum that we're using can also be used for other things like military radar and GPS and other types of wireless applications.     

 

So who gets to use that spectrum and how they use it is an important and increasingly contentious policy process. In the middle of much of that process sits the National Telecommunications and Information Administration or NTIA, which is a part of the Department of Commerce and it governs the federal government's use of spectrum. Just to do a little bit of table setting here, when we talk about federal users, we're talking about federal agencies as distinct from commercial users like your cell phone company and as distinct from any state and local governments who use spectrum.  So how this whole puzzle of spectrum fits together is -- it has big implications for how American consumers and for -- how American consumers use their devices and how the U.S. leads the wireless world.       

 

So our goal in the webinar today is to get a better understanding of that process, how it goes wrong sometimes, how it could be improved. And it's especially a timeliness event because tomorrow the House Communication Subcommittee will be considering legislation to reauthorize NTIA. So maybe our panelists have some ideas that will be helpful to Congress as well. We couldn't ask for better panelists to discuss the role of NTIA -- two former NTIA administrators. Their full bios are on the FedSoc website. So I'll just briefly introduce them here.       

 

First, we have John Kneuer, who led NTIA from 2006 to 2007 and he is now the president and founder of JKC Consulting. And we have David Redl who led NTIA from 2017 to 2019 and he is now the founder and president of Salt Point Strategies. So Scott and I will be asking these two questions on all things NTIA. And you can ask questions too in the Q&A, as Jack mentioned. But just to get started here, John and David, can you tell us a little bit about your, I guess, your NTIA origin story? How and why did you become NTIA administrator? I guess we can start with John.

 

Hon. John Kneuer:  We'll do age before beauty. Yeah. So I started my legal career at the FCC. So I had a telecommunications regulatory background. I spent a brief period of time with a trade association that was very focused on technical spectrum issues. And then I went into a big law firm and I'd sort of diversified my practice beyond telecom and included national defense and transportation, some other issues. And I had a little bit of involvement in the Bush II campaign.  But when he got elected, it wasn't a good time for me to drop the law career and go in. I had a young family. But then 9/11 happened and I thought, if I'm going to go in, the time to go in is now.     

 

So I sort of just threw my hat in the ring very broadly into White House personnel, saying I'll do whatever I can to be helpful, whether it's -- I've got an expertise in tech and telecom, but a lot of that stuff overlaps into transportation. They were standing up Homeland for the first time. And I got a call from White House personnel. NTIA was at that point leaderless. The first NTIA director in the Bush administration had announced their departure. The original deputy at NTIA had left the department, had left NTIA and was working in the secretary's office. So NTIA was kind of being run out of the deputy secretary's office. And I went in and I had an interview with who would then become my boss, Mike Gallagher, who was deputy chief of staff in the Commerce Department, and his boss, a really unsung giant by the name of Sam Bodman, who was just a brilliant, brilliant MIT professor, but also Fortune 50 CEO. And those guys were a really tough audience, but we hit it off. And we had sort of a similar view of things.         

 

And so I had that great opportunity to come in and be the deputy.  Mike got confirmed as the assistant secretary and I spent two years learning the ropes under Mike. And when he left, I was lucky enough to be nominated by the president and spent the last two years as the assistant secretary and did a lot of super fun, interesting stuff.

 

Joe Kane:  That's great. Thank you. And David?

 

Hon. David Redl:  Well, like John, I'm a lawyer by training, started my career as a regulatory lawyer in the wireless space and was quite happy as a regulatory lawyer, but had a colleague that said to me, you know, you're an okay lawyer, Redl, but you like people and you run your mouth, so you might be better on Capitol Hill. And so I had a good friend that proceeded to put my name in with the Energy and Commerce Committee when republicans took control after the 2010 midterms. They needed to staff up and specifically, they needed someone who was an expert in radio frequency spectrum regulation. And as it turns out, the Venn diagram of is a republican, understand spectrum, will take a hill salary, was not very many people. And I was quite fortunate to end up going there and work for two of the best that I could have asked for in Fred Upton and Greg Walden as my full chair and sub chair on the Communications and Technology Subcommittee.      

 

And I spent my first year there helping draft spectrum auction legislation and helping to create FirstNet. And then my chief counsel left for the private sector.  And I was promoted to chief counsel and stayed there for a long time, for almost seven years, which, in hill time, is an eternity. As you all know, 2016's election was somewhat atypical and house staffers are not generally in the mix for Senate-confirmed jobs for obvious House versus Senate reasons. But the Trump administration was coming in. And because they ran such an unconventional campaign, they did not have as robust an apparatus around each of the different policy areas where they had already sort of thought through who they were going to nominate for all of these jobs.        

 

And so I saw an opportunity and I went to my bosses at the time -- it was Fred Upton had termed out as chairman of energy commerce. Greg Walden had moved up. And now Senator, then Congressman Marsha Blackburn was my new subcommittee chair, I went to them and said, you know, I think I want to throw my hat in the ring to run NTIA. And they said, "Why?" I jokingly said, "I promised myself I'd do the satellite bill only once."  And then when they said, "No, what's the real idea?" I said, "Listen, I think I can contribute something over there. I'd like to show that I can manage a big organization and you can't do that on Capitol Hill."        

 

And so to their great credit, they threw my resume into presidential personnel. And about two weeks later, I got a call and they said, "Can you meet Wilbur Ross this afternoon?" There's only one answer to that when you're running for -- trying to get a job when the secretary, the nominated Secretary of Commerce says, "Would you like to come meet about working for me?" You say, "Of course, what time and where?" And apparently, he saw something in me that was enough to have me come work. And I spent two years after I got through my confirmation -- about 18 months after I got through confirmation -- running NTIA and it was a fantastic experience. I think John would probably agree with me. If those jobs paid market rates, people would never leave them. They're great jobs, but it's unfortunate it's not the nature of the job.

 

Hon. John Kneuer:  There's always the Don Rumsfeld, Bill Barr option where you go back and do it again.

 

Hon. David Redl:  Yeah, you can always boomerang back in, right?

 

Scott D. Delacourt:  Well, thanks for that background on the leadership role and how you came to be there. Maybe for our general audience, you could tell us a little bit about NTIA as an institution and its role in spectrum policy making. The institution itself wears many hats, speaking for the agency, speaking for the White House. Wonder if you can tell us a little bit about that and as well about NTIA's role on broadband and spectrum generally. Maybe John, you can --

 

Hon. David Redl:  John and I served almost 15 years apart. So, John, it might be helpful for you to give the perspective of where it was and sort of where it ended up by the time I got there.

 

Hon. John Kneuer:  Yeah.  So first there was the dinosaurs, but then shortly thereafter, there was the Office of Spectrum Management inside the Commerce Department, which was a small standalone entity. But there was the Office of Telecommunications Policy that was in the White House. And I believe it was in the Carter administration, they wanted to combine those two things. And that's where NTIA came from. Small footnote, the original general counsel of the original NTIA was a bright lawyer named Antonin Scalia. He was the first general counsel of NTIA. But they put them together to have a, not just the technical federal spectrum management piece, but they wanted it to be informed and married up with the broader commercial economic issues that surround the communications industry, which even then was an enormously influential part of our economy, but not nearly the central place it holds now. 

 

So that's why, if you actually look in the statute, the head of NTIA reports directly to the Secretary of Commerce, but it's a dotted line report directly to the president on telecommunications economics policy issues. So at its inception, NTIA was designed to be the entity that takes the government equities of operational capabilities in telecom and marries them with the broader economic interests that the country has in having a robust and innovative and leading communications sector in the economy.

 

Hon. David Redl:  I think it's worth noting, as John points out, to double down on that, it's an assistant secretary that reports directly to a secretary, which is wildly atypical inside the U.S. government. Assistants usually sit under an undersecretary who reports to the secretary. So the direct line to the secretary is rather unique in addition to the dotted line to the president. And it's one of the reasons the job has the absurdly long title it has, which is Assistant Secretary of Commerce for Communications and Information and the Administrator of NTIA, because it essentially was two jobs that got smashed together when they created the office.      

 

By the time I got to NTIA, spectrum had become a much larger focus of NTIA's work than perhaps it had been. Certainly, the focus of that work had shifted significantly from just coordinating federal assignments and federal missions within the Executive Branch to also looking at how to find spectrum to make available for reallocation and auction for commercial use. And over the course of 15 years, several different statutes created mechanisms for that, whether it was the Commercial Spectrum Enhancement Act or the Bipartisan Budget Act of 2015, we can do this all day. They are all driven by one thing, which is that Congress was always trying to find ways to get more money out of spectrum.        

 

I think this still holds true. It was true for a long time that no spectrum bill ever passed the Congress by itself. It always rode on a fiscal vehicle, starting with the Omnibus Budget Reconciliation Act of 1993, which created auction authority.  And so that has been a driving force for the last 10 or so years, is how do we promote that economic value of spectrum through auctions? And I would argue somewhat to the detriment of larger spectrum policy. Because the debate we've had over what's the real value of spectrum, whether you're talking about a government user, a licensed satellite user, a licensed threshold user, an unlicensed user, has unfortunately become a dominant part of the conversation around spectrum policy.

 

Hon. John Kneuer:  So I would add one thing to that. Part of the evolution of these auction laws from the Commercial Spectrum Enhancement Act -- so there was the first spectrum authorization, the Commercial Spectrum Enhancement Act for the first time, recognized that finding spectrum to give to the federal government spectrum to give to the FCC for them to auction and raise money imposes burdens and costs, both fiscal and operational, on the federal entities that were the prior holders of the spectrum. And this is very often DOD. So one of the things they've done is create a process where the equities of the government users get added to that decision tree. It's not just that you're going to raise money, there are costs on the other side. So just like you would, in an auction for anything, you set a floor, a reserve price. So, they say, okay, we're not just going to take this spectrum from the government, we're going to do the hard work in the front end to evaluate what's it going to cost for these people to relocate, for these systems to relocate, for these capabilities to relocate, not just they have to buy new equipment, they need to -- in the case of the government, it could be entire weapons systems that have to be rethought, that have to be -- people be retrained on, they have to go into the field.         

 

And that creates a very contentious process because if you ask DOD how much it's going to cost, they're going to say infinity. And so you have to wrestle back to the ground, like, no, let's talk about what the real costs are, but do it fairly and credibly. But then if you have a band of spectrum that says, you know, Jesus it's going to cost us a billion dollars to move out of this band. Well, then, okay, a billion dollars is a lot of money, but there are unmeasurable benefits to the economy and to our national productivity and our national competitiveness by having new broadband capabilities. But so those are hard to measure, but we can measure the hard costs for you. It's a billion bucks. And so then when the auction is held, it says, you know, this auction doesn't close if you guys -- if the industry doesn't pay up more than the relocation costs are going to be. 

 

Hon. David Redl:  110% of the relocation costs.

 

Hon. John Kneuer:  Yeah, because it's the relocation costs plus the admin on top of it. But happily, in almost every circumstance, the revenues that have been generated by the auction totally dwarf the cost of the relocation. But that is where the tension is coming to a head again now. That there are -- it was easy in the early days when you had fixed wireless links or outdated radar systems, but from the government's perspective, at least at the operational level, there is this sense that there's only so much we can give and you're running a real risk of causing operational vulnerabilities in our homeland and national security. And balanced on the other side is, we've got economic security that we're struggling with China and other economic competitors. And where do we find the intersection between national security and economic security? And when those issues got raised when I was in government with Don Evans as the secretary or people in the White House, they said, when the choice is economic security or national security, we do both. Now, get out of my office and go figure it out. 

 

Hon. David Redl:  That and -- John has hit on one of the most interesting aspects, I think, of the job, which is that, for those of us that have worked in spectrum policy, whether it be on the political job, like NTIA administrator, or at any point, this job changes constantly. The balance of national security and economic needs is always there, but how we're going to achieve it continues to evolve. I think John hinted towards this, that we've run this playbook for a long time of like, give us your costs and we'll just clear spectrum and auction it. And that has gotten harder and harder and harder each time because the areas where it made sense to do it are becoming fewer and fewer and fewer. We continue to pack more users into the spectrum, whether it's federal or non-federal. And every time we run this playbook, it becomes iteratively more challenging to do it again. And I think that's what we're seeing come to a head in the last couple of years is that there are no real good places left for us to just easily run this playbook. That it's going to have to evolve. It's going to have to get smarter. It's going to have to find ways to work around incumbents that can't move, that don't just simply have geographic areas in the middle of nowhere that we can say, fine, the cell networks won't work here or fine, we're not going to allow Wi-Fi in this area. We've got to figure out new ways, more efficient ways to find the pieces that are not there within the spectrum puzzle.

 

Joe Kane:  Yeah. Yeah. It's certainly a very complicated and contentious process, it seems, as we've run out of that green field spectrum. I wonder if, from your perspective at NTIA, did you ever sort of -- thinking about like, whose side is NTIA on in this? Right? Because it's ostensibly, you're representing, in some sense, the federal agencies, but you're also in the Department of Commerce. And so is -- how do you view sort of the role of NTIA in that? Are you supposed to be sort of channeling the federal agencies views along or are you sort of evaluating those from, you know, the expert agency on federal spectrum and deciding what is the best policy that balances between the two, between your economic national security and other federal priorities that agencies have?

 

Hon. John Kneuer:  David, why don't you go first on this one?

 

Hon. David Redl:  Yeah. I'll take this one. So look, I think the answer is, yes. Whose side are you on? The answer is, yes. I mean, NTIA really does have a dual mandate at this point. Their job is to be the regulator and protector of federal missions and federal assignments and make sure that they are regulating those in a way that allows them to do their jobs. But they're also tasked in statute with finding ways to make more spectrum available for non-federal users. And when I used to get asked this question all the time as administrator, people would say, whose side are you on? And I'd say, I'm on the side of the best use of the spectrum. And it sounds like a cop-out, but it really isn't.         

 

I think you can find sometimes the best use of the spectrum is to allow the federal user to exist unimpeded because what they're doing with it cannot coexist with something else efficiently, effectively, or in a way that comports with national security.  Sometimes your job as the administrator is to go to an agency and say, it's cute that you think you're that important. You're not. And so let's have real conversations about what we're going to do with your spectrum because we understand you have a mission, but your mission is not contingent on being exactly where you are right now.       

 

And those are tough conversations to have. You know, there's institutional inertia within the Executive Branch. Nobody likes change. If you've got a job and you've been doing it for 20 years, you do not want someone coming in and saying, "Hey, I want you to relearn everything you know about your job." It's not a well -- it's not well received. But that's the reality in some of these spectrum reliant systems that we have within the Executive Branch that -- yeah, they do need to be improved.  Now, the fine line is figuring out when it's time to tell an agency, it's -- you've been heard --overruled. And when it's time to hear the agency and say, "Okay, I got it, I'll get my body armor on and I'll go to war for you on this one."         

 

And there's no one good answer for when you're in which role. It's very much case by case, it's very much dependent on understanding the mission of the federal agency, the technology that the federal agency is using, and frankly, understanding what you're seeing from the commercial side, what the commercial users want, what their economic expectations are, what the technological expectations are. And in that way, you are terribly reliant. John and I, as we mentioned, are both lawyers by training. We are not engineers. And so you are heavily dependent on engineers, both the ones within your agency and the ones without, to explain to you in lawyer terms what's happening in a way that you can understand so that you can accurately decide, yeah, I'm going to tell Congress this is not doable, I won't do it. I can't do it without imperiling a federal mission. And when you have to go to an agency and say, yeah, Congress has told me to do this, so we're doing this. So let's get on board. So it does lead you to have to sort of talk out of both sides of your mouth sometimes as an administrator because it looks like you're not able to pick a team, but the reality is they're so issue-specific that you can't take it as a one or the other. John?

 

Hon. John Kneuer:  Yeah. So I agree with all of that. Like in a lot of things, the only stuff that draws the attention is when there is -- there's conflict that's hard to resolve. But 90% of NTIA's involvement with the agencies is resolved within NTIA in collaboration with the agencies. Within NTIA, there is a subgroup called the Interdepartmental Radio Advisory Committee. And it's just what it sounds like in bureaucratic ease. It's the representatives of all of the departments who have spectrum equities.          

 

And we've got this giant skiff -- classified capability to have classified conversations as secure compartmentalized information facility that's like twice the size of the White House situation room because you get like 45 men and women from the various -- the Army has a -- it's not just DOD, it's DOD and the Army and the Air Force and Marines. And it is NASA and it is the geospatial representatives. And they all get together, law enforcement and whatever else it may be, aviation, transportation, and they all get together in this big conference room in the basement of the Commerce Department. And we figure these things out. It's not just the government versus the commercial interests. A lot of times it's government agencies versus government agencies.       

 

And it's, as David says, it's driven by the engineers and it's contentious, but it's always resolved. But then you get to these broader issues that impact the government equities and the commercial equities, and those fights come out of the IRAC, and they wind up in the White House with someone from the National Economic Council, someone from the National Security Council, people at assistant secretary levels, trying to come up with this balance. Where are we going to find the mix between our critical government missions and our critical economic security agenda?           

 

And the way we find good paths, and one of the things that, as David said, is getting harder and harder, the thing that makes it no longer impossible, even as it gets harder, is that the technology develops and the coexistence of a commercial system with a government system gets solved by the changes in technology. And one of the things that is very hard to get government actors at the operational level to understand is the kind of macro dynamic that says, I know you have an immediate operational need that the spectrum is your only answer to, but the more spectrum that goes into the commercial space creates whole new cycles of innovation.

 

4G, 5G, 6G, from GSM to -- I'll quit on the acronym salad -- but the innovation that is a byproduct of increased economic activity, that innovation then spills back into the government entities, and they've got brand new capabilities that they otherwise wouldn't have had. So it is -- the challenge is capturing short-term conflict to reap midterm, longer term, not just economic benefits, but enormous operational benefits for the warfighter and for the government. Spread spectrum technology massively increases the security of battlefield communications. That comes from commercial innovation. It's that virtuous cycle that you want to try and keep everybody focused on. But they lose their focus in day-to-day immediate needs.

 

Hon. David Redl:  Well, what John points out about the pace of technological change is a blessing, but it's also a curse because the reality of what you have to do as the administrator is balance the fact that the commercial sector iterates significantly faster than the government sector does. There's no wireless provider out there, there's no Wi-Fi equipment manufacturer out there that's like, I built this router with a 40-year life cycle. That's just not, that's not a thing in the commercial sector, they iterate too quickly. But for some of the systems that government is running, they have a built in 40-year life cycle. And so, you look at a radar array, yeah, in the time that it would take you to replace that radar array, the commercial industry might go through 4Gs worth of iteration. And so those two not lining up all the way, or being at different paces is a real challenge for the administrator to try to square.

 

Scott D. Delacourt:  Yeah, that's a great point, David. And not just for the administrator to square, but also -- we've been talking mostly about the internal tensions and NTIA's role, but there's another player in this space, the FCC representing the commercial interests and NTIA has to cooperate with them as well. That's been an area where some of the conflict that John talks about that has generated attention as conflict does, has occurred. And that occurs even where the NTIA administrator and the FCC chair and commissioners are all public-spirited people acting in good faith and trying to advance the public interest. But there's just this inherent tension between the roles of the agencies. And there have been some efforts to address it structurally back in the early 2000s. There was a memorandum of understanding put in place to address coordination between the FCC and the NTIA, and it was updated recently. The effort there with the MOU and its adoption was to add some discipline to the process, and to add some regular procedure, timelines, deadlines to advance decision making where things stall. I wonder if you all could speak to that effort, whether the end of the MOU has been helpful, and whether you think it's had a productive role in disciplining the process and what more can or needs to be done.

 

Hon. David Redl:  So there's a couple hard truths about the work between the FCC and the NTIA. One is that 95% of it occurs at the staff level and nobody ever hears about it and it just happens. It's magic. They all coordinate well, they play nice in the sandbox, and things either get done or they don't get done based on the engineers and the staff level attorneys working things out. And that's the part nobody talks about. The MOU is really looking at the 5% of the time that principals get involved. And that's when you've got the commission either making a decision that the administrator disagrees with or vice versa. But the second hard truth, and this is hard for any NTA administrator to say out loud, is that the FCC gets the last word. Love it or hate it, our legal system gives them the last word. They get to make the allocation decisions, and if they decide to make a co-primary allocation with your federal users, they're free to do it. They actually can go forth and interfere if they want. Now, there are remedies to solve the problem if they go forth. And thankfully, that's not the way things work in the real world. But legally speaking, they do get the last word.      

 

I would say, I have, for the most part, had very good experiences working with my FCC. Like, when I was working as administrator with Chairman Pai, I had a very good relationship with the Pai office.  We were largely in sync on the way things work. And although the FCC is an independent agency, it's not independent of the political process. Everybody that works in the Executive Branch, of course, works for the President of the United States and so what the President says goes. And technically, that's not true for the chairman of the FCC, that they're technically independent, and they should not, but they can read the news. It's not like the chairman of the FCC does not understand what the president would like from them.       

 

And so rarely do you see the kind of real conflict between the two play out in public. That usually plays out -- if there's a disagreement between NTIA and the FCC, it plays out behind the scenes. It plays out behind closed doors, and it gets resolved. What has changed in the last couple of years is that both Executive Branch agencies and the FCC and NTIA have increasingly been having these conversations in public and not within the family. And so we're seeing these things play out in a way, publicly, that it has never done before. I don't think it's any more contentious than it's ever been. Just isn't being dealt with by a single decider at the end of the day. John, maybe you feel differently, but --

 

Hon. John Kneuer:  No, I think that's right. We did the first revision of the MOU. One of the things President Bush asked of us was to come up with a spectrum policy that would be long lasting, that sort of balanced all these commercial and federal government equity issues. We put out this two-part report that had a focus on the commercial and the integration with the FCC, and focusing -- trying to get away from the exercise where Congress says, find 100 megahertz and the government scrambles and goes back and finds 100 megahertz. But instead to create a system of incentives and requirements inside the federal government that, thinking about the value of spectrum, thinking about the efficiency of spectrum, is part of your day-to-day responsibility. And included in that was this bit with the FCC where we had regularly scheduled meetings that were supposed to take place, that if there was a proceeding before the FCC trying to manage the independent agency reality of the FCC. So we can't just call -- the president can't call the chairman of the FCC and say, "Do X." He can't delegate to the assistant secretary and say, "Hey, call the FCC and tell them to do X." We have to maintain that appropriate separation.      

 

But to encourage better communication, we would have these regularly scheduled meetings. Then if the FCC was going to consider a rulemaking that would impact the federal government, they're supposed to give us a period of time on heads up. If we have a concern, we had the ability to ask them, hey, pause and give us more time, but ultimately, it'd be up to the FCC. But to David's point, there's a limit to how much of this you can write down. And a great deal of it is dependent on or reliant upon the relationship between the Assistant Secretary at NTIA and the Chair. And my experience is pretty similar to David's. If I had an issue, I would just phone and call and be like, hey, we're talking about this over at the White House. Everyone's scratching their heads at what you're thinking about doing, you want to explain? We could have those kinds of conversations. And sometimes they go forward on what they wanted to do, because the other political balance is that the FCC is really a creation of the Congress. And they've got a lot more -- their base of political support is in the Congress and NTIA is an extension of the Executive Branch.

 

Hon. David Redl:  This is why -- it's worth noting that this is why, for those that either weren't in policy then or didn't pay as close attention at the time, why it was such a big protocol foul on the thought -- in the minds of many in Washington when President Obama put out a YouTube video specifically calling for Title II regulation of the internet. Because it just isn't how things are done that the president opines publicly on what he wants the chairman of the FCC to do. And so when that happened, it wasn't that people didn't know what he wanted, but the fact that he was willing to go and do it so brazenly and openly say, “I'm basically telling the FCC to do this” was a very big deal at the time.

 

Joe Kane:  Yeah. Yeah. So I wonder if you could say a little bit more. Like, why do you think things have been playing out more in public? It does seem like there's been kind of a shift in power dynamics in general. I think, especially with spectrum policy, it seems like the Department of Defense is especially playing a much bigger role even over and above NTIA's influence, like, almost to the point of a veto power on spectrum policy decisions. Do you have thoughts about what's going on there?

 

Hon. John Kneuer:  I do.

 

Hon. David Redl: I mean, I would argue right now, the baddest -- the one that's taking the most advantage of it is actually FAA, not DOD. I think it has been taken -- and the reason for it is, look, bad behavior is being rewarded. At the bottom, if there is discipline within the Executive Branch to follow the process that has been laid out by the White House, that we will have a conversation within the family, we will reach a policy, the White House will broker what that policy is, and then everybody gets on board with the policy, then you end up not seeing these fights go out. But what happened, at least in the case of the FAA, is they went straight to the media. And the media ran the story, and there was no corresponding sort of smack down from the White House of this is not how we do business. And if you don't have that operational discipline within the Executive Branch, you end up with everybody feeling empowered to say whatever they want, regardless of what the White House wants. And John, I think you probably had a more rigorous process in place, I think, than we did at that point in terms of the White House managing sort of the day-to-day operations of policy making process.

 

Hon. John Kneuer:  Yeah, I think that's right. I think the -- in my time, if one of those things spilled out into the public the way they did, it would have been a bad day for some people. If the FAA had jumped out that way, I would have gotten an immediate call from the White House saying, how come you're not handling this? I would have been in the secretary's office, the secretary of MFO, the secretary of transportation, and either someone would have been fired or they would have understood there's a process to resolve these conflicts. And it's not you guys. It is the process that runs through NTIA. If there's a problem that can't be resolved in NTIA, it goes up the chain, goes to policy time in the White House. I mean, we had one that went to the Oval. It's a terrible failure on our part if a spectrum issue winds up in the Oval Office, but it happened one time.      

     

But there has to be discipline around the process for a variety of reasons, but one of which I think, Joe, you talked about this concept that DOD basically wants veto authority on any of these spectrum issues. That's a bad idea for a bunch of reasons, but it's bad for the Department of Defense for DOD to have veto authority on this because if you give DOD veto authority, it's going to be exercised at the operational level. It's going to be the director of some system that says, we're not doing that. We just installed this system. We don't want to do it. And DOD totally misses any of the inputs on the broader technological innovation, economic security -- having one particular program be run without any disturbance at the cost of our macro global competitiveness with China is a bad outcome for national security, right?      

     

So it takes the -- and I don't know that the head of NTIA needs more authority. I don't think NTIA should have a counter veto authority over others. But NTIA just has to be the place where it's understood we start these fights here and not because it's in the commerce, it's just because it is the established institution for interagency coordination. No one has a voice louder than the others. We're collaborating, we're coordinating. If it can't get solved there, it goes up the chain into the White House, into a whole of government approach. But what's been happening more recently is when it doesn't get resolved at the NTIA level, the agencies run back to their offices and start running their own play with the Congress, with the press, with whatever. And that's a really bad system for getting to thoughtful solutions that solve whole of government problems.

 

Hon. David Redl:  It's worth going -- real briefly, John, and I'll do it -- into sort of how this process works in reality, right? It's that once something goes through NTIA's internal process, if there's a disagreement, as John pointed out, it gets elevated to the White House. And so historically, either the National Economic Council or the National Security Council, depending on which side of the house was aggrieved, would bring together all of the agencies at the staff level that have equities in the decision and say, basically, we're sitting around the table, let's hash this out. If they can get to yes, and it goes back to all their agencies and everybody says yes, great, mazel tov, we're done.         

 

If not, it comes back with a non-concur, which is a word that doesn't exist in the English language outside of this process. A non-concur comes back to the White House and they say, okay, we couldn't work it out at the staff level. Now we're going to elevate it to deputies. So it goes to the subcabinet level. And they do the same thing at the subcabinet level. And again, if you fail to reach agreement there, it goes to the cabinet. If the cabinet can't reach agreement and it's still something that's worth dealing with, then as John pointed out, ultimately it goes to the president. And as the NTIA administrator, if your -- he points out rightly -- if your argument has to be put before the president, you failed, right? Because you should have been able to convince people at some stage of the game to reach a compromise or to see it your way. But that sort of iterative process of going up and sending things back down, if that's not happening, you end up where we are now, which is everybody runs to their existing buildings and cries to the press.

 

Hon. John Kneuer:  Yeah. One of the things -- the other thing we had in our spectrum policy papers that we did for the president was just in the same way it's important for the administrator to have a good relationship with the FCC, it's super important to have good relationships with your counterparties at the assistant secretary level at the Defense Department, at the Transportation Department, at the State Department, at Justice, Homeland, because they're then invested in the process. And they're going to be less inclined to allow a lower-level debate spill out into the public. So that would be -- one of the things we added in that spectrum report was not just the MOU with the FCC, but we create something called the Commerce Spectrum Advisory Committee, I think it was called, which brought in private sector entities to advise the Assistant Secretary. But we also had, I talked about the IRAC, the Interdepartmental Radio Advisory Committee, which is run sort of like a SES GS15 level of just straight-line government employees, senior executive service people who run programs. But then we had another committee level that was at the assistant secretary level.      

 

So that all of us -- all of this is communication, transparency, mutual trust, and mutual understanding on what the objective is. In the interagency process, if the interagency is being brought together, it's because none of our individual equities are enough to solve the problem, or none of our individual equities are in isolation. So that means we're serving a bigger governmental objective. And you need to get in a room and solve those issues. And that requires some people losing out on some things and some people gaining on other things. But there has to be the baseline understanding at the outset that, we're here because the president told us to come here. We're here because Congress passed a law that says we have to do this. This isn't about our own narrow equities. This is a national interest exercise we're undertaking. So act like it and stop running off and saying, but my particular sacred cow is going to get gored.

 

Scott D. Delacourt:  So we've been talking about the internal process for resolving conflict within NTIA between the various agencies. But what about the process where the conflict is between the FCC and NTIA? And David alluded a little to the fact that the FCC may be more responsive to Congress as a creature of Congress, and not as much in that White House escalation path, although certainly aware of the political environment. Do you think there's a working process in place to resolve those conflicts the same way there is for those internal NTIA conflicts? Or are different or new tools needed to address that situation?

 

Hon. David Redl:  So I think the same answers apply that we gave to the last question, Scott, which is saying, all the structures that John mentioned, the IRAC, the FCC has observer status there. They attend, they present their viewpoint. They are obviously there as an observer because they're not part of the Executive Branch and it'd be inappropriate for them to be there because they were ordered to be there. That's not how it works, but they attend. The IRAC always has somebody from the Office of Engineering and Technology there to talk about what they're thinking, not so much to necessarily be told what to do, but to inform that group of what the FCC is thinking.

 

And going back to what I said earlier, 95% of this stuff is resolved at the staff level, because of that. When there are these disagreements, yeah, Congress plays a pretty solid role in resolving them as well. Because, as the administrator, you know you cannot go back to energy and commerce and Senate commerce when it is budget appropriations time and have thumbed your nose at them on the things they asked you to do. You've got to maintain that relationship because at bottom, you're working for appropriated dollars to fund your agency, to pay salaries, and to run the programs that you are running. So there is a responsiveness to Congress for both agencies that I think is a little more flexible than necessarily the responsiveness of the president where the administrator has to be responsive to the president. The chair is generally responsive to the president but does not have to be. John, you want to --

 

Hon. John Kneuer:  No, I think it's the exact same process. So just like you have intergovernmental equities intention, the FCC is largely, in these debates, they're representing the commercial interests, right? They're regulated entities. NTIA is representing the government equities. But as I've said, the task for both is to come up with solutions that maximize our economic growth opportunities and our innovation opportunities and our economic security without doing unmanageable harm. And harm is the wrong word. Without -- in a way that accommodates key federal government equities. You don't want to harm or damage the government equities, but there has to be a path forward to achieve the things that the government needs.           

 

And so the compromises there typically are measured in dollars and time, right? In a perfect world, industry would love to have access to this band of spectrum tomorrow. And in the extreme government side, the perfect world is, you don't get access to it, we need it. And so the path in the middle is, how do we find a path to allow the government equities to responsibly make the transition without compromising their mission from an operational standpoint or an economic standpoint. So they're compensated and they're given the space to do it. That's where these fights typically come out. It's like, I want it. You can't have it. The end, then, okay, you can have it. How long is it going to take? How much is it going to cost? And you start smoothing off the edges around time and costs and total amount of spectrum involved.          

 

I mean, this is going on in a 3 gigahertz band right now. Do you want all of it? Do you want part of it? How much is it going to cost? What's the time going to be? Those are the messy sausage making parts of this exercise that falls upon the assistant secretary and his or her partners across the government. And to an extent, it's incumbent upon the assistant secretary to communicate this directly to industry as well. We represent the president on all matters of economic policy that go to this part of the industry, which means you have to have relationships and dialogue and understand what the economic actors need.

 

For one thing, it's useful to turn around and go back to the agencies and be like, look, I think what they're saying is better for America 10-year time horizon than what you're saying.  So, I'm your representative, but you've got to give here. So it's like any other part of the give and take negotiations in Washington, whether it's around a piece of legislation, around a budget matter, it's standing in the middle, understanding both sides, getting both sides to understand one another a little bit better, and no one goes home. 

 

Hon. David Redl:  I will say the other thing that's fun about having a good relationship with the commissioners and the chairman of the FCC is that you also get to figure out who's telling two stories to two agencies. And for anybody that is advocating different stories to the FCC and to NTIA, you should know it gets found out pretty quickly when it gets to the political level.  Because at some point, the chairman and the administrator are going to either have a phone call or sit down and they're going to say, well, they're telling me X. And they're telling me the inverse of X. And you've lost your fight if the two of us are being told the exact opposite things.

 

Joe Kane:  Yeah, those are all good points. I think we're coming down to our last few minutes here. So I wanted to ask both of you sort of what reforms or tools does NTIA or just in terms of what should be changed about spectrum policy to improve this process? As we've said, it's getting increasingly hard to find spectrum, the debates are becoming more public and contentious. What is your -- do you have a reform recipe for us?

 

Hon. John Kneuer:  Well, I would -- sorry. You go ahead, David.

 

Hon. David Redl:  No, go ahead, John.

 

Hon. John Kneuer:  So I was going to say, I think it's super important that the FCC gets auction authority restored, because the auction authority -- one of the big lubricants in this entire process is money, right? And so if the real economic value of the spectrum can be realized, and some of those resources can be devoted to solving the operational challenges that the government has in accommodating more flexible spectrum use, I think that's super important. I think reforms that would give individual agencies veto power or independent authority on this are misguided. And I think those are reforms I would avoid completely. I think the important thing is a lot of this can be solved by the White House understanding what this is empowering NTIA to do its job. NTIA doesn't necessarily need -- NTIA doesn't need veto authority over the agencies. It works best when they are the clearinghouse for collaboration. And when disputes break down at that level, they don't go back out to separate agencies getting in front of the Congress or the press. They get resolved with a well-understood process that brings whole of government problems to the place where all of government answers are made.  And that's in the White House.

 

Hon. David Redl:  Yeah. I agree with everything John said. I think to quote someone who worked for both me and John, who I will leave nameless, it was said to me once, "Europeans are real good at passing rules, but never enforce them. Americans don't pass a whole lot of rules, but we enforce the daylights out of them. "The problem right now is there's no discipline in our process. We've got a framework in place. The framework is not broken. The discipline around the framework is what's broken at the moment. And putting discipline back into that process will fix the vast majority if not all of the problems we are seeing currently play out in spectrum policy.

 

Hon. John Kneuer:  That's right. Well said.

 

Joe Kane:  Where does that discipline have to come from?

 

Hon. David Redl:  It's got to come from the top. The White House has to be the ones to impose the discipline. It has to be. They're the only ones that can speak equitably across the entirety of the Executive Branch and say, you have to play ball.

 

Hon. John Kneuer:  That's where it comes from. 

 

Joe Kane:  Yeah. Good points. John, I wonder if I could ask just in our last few minutes here, you've talked a lot about the spectrum relocation fund and how that can be helpful here. Do you think the fact that it's limited to replacing equipment with comparable capabilities is a limitation there and that sort of changing that around could make it more useful? Cause then you also improve -- that helps you accomplish your federal mission better too, if you get higher quality equipment, right?

 

Hon. John Kneuer:  Yep, so that's been sort of -- the evolution was, the government got nothing, they just gave them the spectrum. Then it was the government, the next iteration was, we'll cover relocation expenses. And then it's moved on to, well, how broadly can we define relocation expenses? And there have been items like, well, the Defense Department would like much more sophisticated spectrum management tools that help them evaluate all of these things. And they will be -- funding those will be beneficial to future relocation or don't overly, narrowly limit what they can do with the funds. That's a good carrot. But then you get into -- the appropriators start getting anxious about that if suddenly, there is a spectrum slush fund that goes into the agencies that they don't have to get appropriated from Congress. They can just start throwing spectrum out the door, selling it willy-nilly and do other pet projects. So there's a tension between overall government accountability, power of the person, the rest of that.          

 

      From my perspective being overly narrow on defining these things, for the same money you can get more capability, get more capability. Why would you not do that? But that gets tempered against -- only replacing it with the capabilities that they had defeats the thing I was talking about earlier, that one of the benefits of focusing on our economic security is that the innovation in the private sector produces all kinds of new capabilities for the Defense Department. They should have the ability to take advantage of that. So that's one of those smoothing around the edges. Don't be too restrictive, but at the same time, don't open up the spigot of money that they can spend whenever they want.

 

Hon. David Redl:  I mean, that question, Joe, is a microcosm of the larger question that we are asking ourselves about agency deference at the moment, right? The larger macro government question about how much flexibility do we give federal agencies to decide what the law means? And I think there's no better place to look than perhaps what constitutes comparable capability.  I mean, there's been a lot of hemming and hawing on the technical panel that was established in the Spectrum Relocation Fund about, well, is that more than what you should be getting? Is it less than what you should be getting? That kind of gray area -- I lay that at my feet and others who are, I know are on this call who helped write amendments to the Special Relocation Fund language that that's made it a little more challenging and frankly made it a little more contentious between the agencies having to have OMB, NTIA and whoever the agency is deciding sort of what the right answer is in terms of what the technology questions are.

 

Scott D. Delacourt:  We've got just one more minute here. I wonder if you would feel comfortable commenting on where we're headed directionally. So we've described we've been in a period of fragmentation in the decision making versus historically, there has been a discipline process whether or not it's been observed. Are we becoming -- are we moving back towards that discipline process? Or are we becoming increasingly fragmented? Do you have a quick comment on which direction we're headed?

 

Hon. David Redl:  I think we are in a bubble at the moment that we don't know the answer to. We have an unprecedented process taking place under the IIJA, where the Department of Defense is currently running the process for deciding how to deal with some of its own spectrum. So we are at a weird fork in the road where this could be something that becomes the new normal, or this could be a historical anomaly that is never again repeated. And I don't think any of us are going to know that until the end of this year. And so I'm almost hesitant to project anything beyond the end of this year, because what comes out in that report will directly influence what Congress does on the spectrum bill, will directly influence how these agencies work together.  And that's three steps removed from me, which is a little difficult to predict.

 

Hon. John Kneuer:  I think that's right.  Look, it's really a question of prioritization and personnel inside the White House. That's really where it comes from. And the process that David's alluding to that DOD has been directed to write a report. We know what that's going to say.  It's going to say we're the only equity that matters. And as we've been talking about for the last hour, I think that's bad for the Defense Department. As far be it from me, a retired Assistant Secretary of Commerce, opining about what's good or not good for the Defense Department. I think it's bad for the Defense Department, it's bad for our national security, because it means that significant equities are not being put into the equation. And those equities, our future competitiveness with China, our innovation lead in all of these critical industries are in a large extent predicated upon the commercial industry having access to the core resources that it needs, doesn't mean that they get the only voice. It's got to be a collaborative voice. It's got to be a compromise, but something that puts it in just one bucket. If you take economic security out of the national security equation, you damage national security and vice versa.

 

Joe Kane:  All right. I think that's a good place to leave it. Thank you to all the panelists and for everyone watching and thanks for joining us.

 

Hon. John Kneuer:  Super enjoyed it. Love The FedSoc.

 

Hon. David Redl:  Thanks guys. Always a pleasure.

 

 

Jack Derwin:  Thank you to all our panelists and to our audience for tuning in. You can check out our website, fedsoc.org, or follow us on all the major social media platforms @FedSoc to stay up to date. With that, we are adjourned. Thank you very much.