An Agency Most Haven't Heard Of, But That's Very Relevant

By Michael O'Reilly

August 29, 2024

In today’s divided government, federal agencies are constantly testing the faith and legal authority bestowed upon them by Congress. Instead of focusing on the specifics required by statute or guidance offered by congressional committee leaders, agencies often continue to pursue their own agendas divorced from their legislative foundations. Even more questionable is the case when Congress tries to boost an agency’s importance and functions only to have the agency rebuff it. Yet, this is exactly what is happening at the National Telecommunications and Information Administration (NTIA). To successfully move forward on communications policy, NTIA would do well to deepen its focus on spectrum matters, as required by law, and avoid any freelancing into unrelated or unauthorized matters.

Most Americans have never heard of NTIA, a small agency within the Department of Commerce which serves as the President’s chief advisor on communications and as the lead on federal government spectrum holdings and policy. Its relevance has tended to ebb and flow as new administrations come into power. Decades ago, Congress considered ways to eliminate its direct functions and transfer that workload to other parts of the government. Conversely, the Biden Administration’s infrastructure investment law provided the agency with a huge new role of implementing and overseeing a singular investment to ensure broadband reaches the unserved Americans. More recently, the House of Representatives – by a vote of 374 to 36, including 85% of Republicans – agreed to elevate the agency’s head within the Commerce Department flowchart and enhance its role over Federal users of the electromagnetic spectrum.

Despite this newfound confidence from Congress, NTIA seems to be finding new ways to falter. I have written before about my concerns with respect to the work NTIA is doing implementing the BEAD program in contravention to the crafted statute passed by Congress. What is striking is NTIA’s attempts to justify its statutory end-runs in a recent House hearing by stating it was merely enacting certain conditions on states. Predictably, this gobbledygook did not sit well with Members, including the Ranking Member of the Senate Commerce Committee.  Nor should it. Getting funding to help providers who know how to and are able to build broadband well and quickly is critical for these hard-to-reach locations. Every delay is only extending the time until we can solve the connectivity issues for those Americans unserved.

On spectrum, Congress has tried repeatedly to impress upon NTIA how it needs to better manage and direct Federal agency spectrum use rather than serving as a bystander to other agencies’ visions of spectrum management. By statute and practice, it is the job of NTIA to act as the Executive Branch’s voice on spectrum policy matters. Yet it issued a National Spectrum Strategy that grants all other agencies equal voice on the future of key spectrum bands as “co-leads” of spectrum studies.

In fact, earlier this summer, NTIA found itself invited and then disinvited to a spectrum meeting instigated by the Department of Defense and outside parties to discuss a critical spectrum band – the future of which NTIA has been tasked by the Biden National Spectrum Strategy to decide. That is, the agency charged with overseeing all Federal user spectrum wasn’t included in a meeting to discuss key Federal spectrum allocation and assignments. Huh. How is that acceptable protocol for the Biden Administration? Think about if this practice existed in other settings: could the Defense Department be left out of conversations about upcoming military strike scenarios, or Pete Buttigieg told to skip the next White House meeting on closing the nation’s airports? Those scenarios are laughable because their equities are too significant to be ignored. The same would seem to apply to NTIA on Federal spectrum.       

Concerns for the treatment of NTIA should stretch beyond hurt feelings. Substantively, no other Executive Branch department or agency is designed to function as an unbiased and facts-based spectrum arbitrator. Without some entity to serve as credible authority, every Federal spectrum licensee will continue to fight any proposal to alter spectrum policy based on myopic self-interest, especially injecting itself into non-Federal spectrum and commercial bands. Federal spectrum stagnation also means that the rest of the world’s wireless connectivity will advance as American wireless consumers miss out. Just as Congress is asking NTIA to step forward, other Federal agencies are trying to relegate the agency’s spectrum role to that of a younger sibling. Not only should NTIA be included in any spectrum conversation involving Federal spectrum users, but it should be the one convening any such meetings and deciding who else to include.

Power in Washington, DC, a necessary component for effectuating policy for the betterment of the American people, is a constant turf war between one entity to another. The larger risk of NTIA’s failure to properly assert itself, whether its wasting time and resources on overreach or the failure to lead on spectrum, is that Congress reconsiders the agency’s relevance. If the agency is unwilling to comply with the law, continues to play legal games to push its own whims, or allows itself to be shoved in the proverbial corner when the big boys are having spectrum conversations, then Congress will and should turn to other administration officials to do the work. NTIA’s value, and that of the Commerce Department, will wither. 

As the country faces an election in a few months, it would be appropriate for the new President, whoever it might be, to focus special attention on NTIA and require that it rise to the goals and duties established by Congress and expected of it. America’s economic leadership depends on it.

Michael O’Rielly is a former commissioner of the FCC.