[House Report 111-462]
[From the U.S. Government Publishing Office]
111th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 111-462
======================================================================
RADIO SPECTRUM INVENTORY ACT
_______
April 13, 2010.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Waxman, from the Committee on Energy and Commerce, submitted the
following
R E P O R T
[To accompany H.R. 3125]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 3125) to require an inventory of radio spectrum
bands managed by the National Telecommunications and
Information Administration and the Federal Communications
Commission, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
CONTENTS
Page
Amendment........................................................ 2
Purpose and Summary.............................................. 4
Background and Need for Legislation.............................. 4
Legislative History.............................................. 5
Committee Consideration.......................................... 5
Committee Votes.................................................. 6
Statement of Committee Oversight Findings and Recommendations.... 6
Statement of General Performance Goals and Objectives............ 6
Constitutional Authority Statement............................... 6
Earmarks and Tax and Tariff Benefits............................. 6
Federal Advisory Committee Statement............................. 6
Applicability of Law to Legislative Branch....................... 6
Federal Mandates Statement....................................... 6
Committee Cost Estimate.......................................... 7
Budget Authority and Congressional Budget Office Cost Estimate... 7
Section-by-Section Analysis of the Legislation................... 9
Explanation of Amendment......................................... 13
Changes in Existing Law Made by the Bill, as Reported............ 13
Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Radio Spectrum Inventory Act''.
SEC. 2. SPECTRUM INVENTORY.
Part B of title I of the National Telecommunications and Information
Administration Organization Act (47 U.S.C. 921 et seq.) is amended by
adding at the end the following:
``SEC. 119. SPECTRUM INVENTORY.
``(a) Radio Spectrum Inventory.--In order to promote the efficient
use of the electromagnetic spectrum, the NTIA and the Commission shall
coordinate and carry out each of the following activities not later
than 1 year after the date of enactment of this section:
``(1) Except as provided in subsection (e), create an
inventory of each radio spectrum band of frequencies listed in
the United States Table of Frequency Allocations, from 225
megahertz to, at a minimum, 3.7 gigahertz, and to 10 gigahertz
unless the NTIA and the Commission determine that the burden of
expanding the inventory outweighs the benefit, that includes--
``(A) the radio services authorized to operate in
each band of frequencies;
``(B) the identity of each Federal or non-Federal
user within each such radio service authorized to
operate in each band of frequencies;
``(C) the activities, capabilities, functions, or
missions (including whether such activities,
capabilities, functions, or missions are space-based,
air-based, or ground-based) supported by the
transmitters, end-user terminals or receivers, or other
radio frequency devices authorized to operate in each
band of frequencies;
``(D) the total amount of spectrum, by band of
frequencies, assigned or licensed to each Federal or
non-Federal user (in percentage terms and in sum) and
the geographic areas covered by their respective
assignments or licenses;
``(E) the approximate number of transmitters, end-
user terminals or receivers, or other radio frequency
devices authorized to operate, as appropriate to
characterize the extent of use of each radio service in
each band of frequencies;
``(F) an approximation of the extent to which each
Federal or non-Federal user is using, by geography,
each band of frequencies, such as the amount and
percentage of time of use, number of end users, or
other measures as appropriate to the particular band
and radio service; and
``(G) to the greatest extent possible--
``(i) contour maps or other information that
illustrate the coverage area, receiver
performance, and other parameters relevant to
an assessment of the availability of spectrum
in each band;
``(ii) for each band or range of frequencies,
the identity of each entity offering unlicensed
services and the types and approximate number
of unlicensed intentional radiators verified or
certified by the Commission that are authorized
to operate; and
``(iii) for non-Federal users, any commercial
names under which facilities-based service is
offered to the public using the spectrum of the
non-Federal user, including the commercial
names under which the spectrum is being offered
through resale.
``(2) Except as provided in subsection (e), create a
centralized portal or Web site to make the inventory of the
bands of frequencies required under paragraph (1) available to
the public.
``(b) Use of Agency Resources.--In creating the inventory described
in subsection (a)(1), the NTIA and the Commission shall first use
agency resources, including existing databases, field testing, and
recordkeeping systems, and only request information from Federal and
non-Federal users if such information cannot be obtained using such
agency resources.
``(c) Reports.--
``(1) In general.--Except as provided in subsection (e), not
later than 2 years after the date of enactment of this section
and biennially thereafter, the NTIA and the Commission shall
submit a report to the Committee on Commerce, Science, and
Transportation of the Senate and to the Committee on Energy and
Commerce of the House of Representatives containing--
``(A) the results of the inventory created under
subsection (a)(1), including any update to the
information in the inventory pursuant to subsection
(d);
``(B) a description of any information the NTIA or
the Commission determines is necessary for such
inventory but that is unavailable; and
``(C) a description of any information not provided
by any Federal or non-Federal user in accordance with
subsections (e)(1)(B)(ii) and (e)(2)(C)(ii).
``(2) Relocation report.--
``(A) In general.--Except as provided in subsection
(e), the NTIA and the Commission shall submit a report
to the Committee on Commerce, Science, and
Transportation of the Senate and the Committee on
Energy and Commerce of the House of Representatives
containing a recommendation of which spectrum, if any,
should be reallocated or otherwise made available for
shared access and an explanation of the basis for that
recommendation.
``(B) Deadlines.--The report required under
subparagraph (A) shall be submitted not later than 4
years after the date of enactment of this section and
every 4 years thereafter.
``(3) Inventory report.--If the NTIA and the Commission have
not conducted an inventory under subsection (a) to 10 gigahertz
at least 90 days before the third report required under
paragraph (1) is submitted, the NTIA and the Comission shall
include an evaluation in such report and in every report
thereafter of whether the burden of expanding the inventory to
10 gigahertz outweighs the benefit until such time as the NTIA
and the Commission have conducted the inventory to 10
gigahertz.
``(d) Maintenance and Updating of Information.--After the creation of
the inventory required by subsection (a)(1), the NTIA and the
Commission shall make all reasonable efforts to maintain and update the
information required under such subsection on a quarterly basis,
including when there is a transfer or auction of a license or a change
in a permanent assignment or license.
``(e) National Security and Public Safety Information.--
``(1) Nondisclosure.--
``(A) In general.--If the head of an executive agency
of the Federal Government determines that public
disclosure of certain information held by that agency
or a licensee of non-Federal spectrum and required by
subsection (a), (c), or (d) would reveal classified
national security information or other information for
which there is a legal basis for nondisclosure and such
public disclosure would be detrimental to national
security, homeland security, or public safety, the
agency head shall notify the NTIA of that determination
and shall include descriptions of the activities,
capabilities, functions, or missions (including whether
they are space-based, air-based, or ground-based)
supported by the information being withheld.
``(B) Information provided.--The agency head shall
provide to NTIA--
``(i) the publicly releasable information
required by subsection (a)(1);
``(ii) to the maximum extent practicable, a
summary description, suitable for public
release, of the classified national security
information or other information for which
there is a legal basis for nondisclosure; and
``(iii) a classified annex, under appropriate
cover, containing the classified national
security information or other information for
which there is a legal basis for nondisclosure
that the agency head has determined must be
withheld from public disclosure.
``(2) Public safety nondisclosure.--
``(A) In general.--If a licensee of non-Federal
spectrum determines that public disclosure of certain
information held by that licensee and required to be
submitted by subsection (a), (c), or (d) would reveal
information for which public disclosure would be
detrimental to public safety, or the licensee is
otherwise prohibited by law from disclosing the
information, the licensee may petition the Commission
for a partial or total exemption from inclusion on the
centralized portal or Web site under subsection (a)(2)
and in the report required by subsection (c).
``(B) Burden.--The licensee seeking an exemption
under this paragraph bears the burden of justifying the
exemption and shall provide clear and convincing
evidence to support such an exemption.
``(C) Information required.--If an exemption is
granted under this paragraph, the licensee shall
provide to the Commission--
``(i) the publicly releasable information
required by subsection (a)(1) for the
inventory;
``(ii) to the maximum extent practicable, a
summary description, suitable for public
release, of the information for which public
disclosure would be detrimental to public
safety or the licensee is otherwise prohibited
by law from disclosing; and
``(iii) an annex, under appropriate cover,
containing the information that the Commission
has determined should be withheld from public
disclosure.
``(3) Additional disclosure.--The annexes required under
paragraphs (1)(B)(iii) and (2)(C)(iii) shall be provided to the
congressional committees listed in subsection (c), but shall
not be disclosed to the public under subsection (a) or
subsection (d) or provided to any unauthorized person through
any other means.
``(4) National security council consultation.--Prior to the
release of the inventory under subsection (a), any updates to
the inventory resulting from subsection (d), or the submission
of a report under subsection (c)(1), the NTIA and the
Commission shall consult with the National Security Council for
a period not to exceed 30 days for the purposes of determining
what additional information, if any, shall be withheld from the
public.
``(f) Proprietary Information.--In creating and maintaining the
inventory, centralized portal or Web site, and reports under this
section, the NTIA and the Commission shall follow their rules and
practice regarding confidential and proprietary information. Nothing in
this subsection shall be construed to compel the Commission to make
publicly available any confidential or proprietary information.''.
Purpose and Summary
H.R. 3125, the Radio Spectrum Inventory Act, was introduced
on July 8, 2009, by Reps. Henry Waxman (D-CA), Rick Boucher (D-
VA), Joe Barton (R-TX), and Cliff Stearns (R-FL). H.R. 3125
would require the National Telecommunications and Information
Administration (NTIA) and the Federal Communications Commission
(FCC) to jointly develop a publicly-accessible spectrum
inventory and submit regular reports to Congress regarding such
an inventory. It would also require those agencies to make
periodic recommendations as to which spectrum frequencies, if
any, should be reallocated or otherwise made available for
shared access.
Background and Need for Legislation
There were approximately 270 million wireless subscribers
in the United States at the end of 2008,\1\ including an
estimated 40 million active users of mobile Internet
services.\2\ The Wireless Communications Association
International estimates that a single smart phone consumes 30
times the amount of data used by a traditional handheld device,
often because it is used to access bandwidth-intensive
applications such as online video and gaming.\3\
---------------------------------------------------------------------------
\1\CTIA--The Wireless Association, Semi-Annual Wireless Industry
Survey (Apr. 1, 2009) (online at http://files.ctia.org/pdf/
CTIA_Survey_Year-End_2008_Graphics.pdf).
\2\Comments of Motorola, A National Broadband Plan for Our Future,
GN Docket No. 09-51, Notice of Inquiry, 24 FCC Rcd 4342 (2009) (June 8,
2009).
\3\Comments of Wireless Communications Association International, A
National Broadband Plan for Our Future, GN Docket No. 09-51, Notice of
Inquiry, 24 FCC Rcd 4342 (2009) (June 8, 2009).
---------------------------------------------------------------------------
Wireless carriers have suggested that the current
allocation of spectrum for mobile broadband in the United
States compares unfavorably with other nations and is
inadequate to meet the rapidly growing demand for wireless
services.\4\ That view has been echoed by FCC Chairman Julius
Genachowski, who has stated that a ``looming spectrum crisis''
may be the ``biggest threat to the future of mobile in
America.''\5\ Recognizing the growing need for spectrum, the
National Broadband Plan recommends that the country make ``500
megahertz newly available for broadband use within the next 10
years, of which 300 megahertz between 225 MHz and 3.5 GHz
should be made newly available for mobile use within five
years.''\6\
---------------------------------------------------------------------------
\4\Comment of CTIA--The Wireless Association, A National Broadband
Plan for Our Future, GN Docket No. 09-51, Notice of Inquiry, 24 FCC Rcd
4342 (2009) (June 8, 2009).
\5\Prepared Remarks of Chairman Julius Genachowski, Federal
Communications Commission, America's Mobile Broadband Future (Oct. 7,
2009) (online at http://hraunfoss.fcc.gov/edocs_public?attachmatch/DOC-
293891A1.doc).
\6\Federal Communications Commission, Connecting America: The
National Broadband Plan at 77 (Mar. 16, 2010) (online at http://
download.broadband.gov/plan/national-broadband-plan.pdf).
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Designating new spectrum for broadband use is not the only
way to increase available bandwidth for broadband applications.
The emergence of spectrum sensing and sharing technologies,
including wireless devices or systems that are more aware of
their radio environment through real-time spectrum monitoring
measurements or access to databases, are beginning to enable
more dynamic forms of shared access for spectrum. As one
witness testified at the legislative hearing on H.R. 3125,
``[b]y taking advantage of this more localized, real-time
information [wireless devices or systems] are potentially able
to access unused spectrum that may be available on a moment-by-
moment rather than just a long term basis,''\7\ providing a
potential solution to reducing network congestion. Furthermore,
advances in technology continually result in increases in which
bands of spectrum are considered usable for wireless services.
---------------------------------------------------------------------------
\7\House Committee on Energy and Commerce, Testimony of Dale N.
Hatfield, Hearing on H.R. 3125, the Radio Spectrum Inventory Act, and
H.R. 3019, the Spectrum Relocation Improvement Act of 2009, 111th Cong.
(Dec. 15, 2009).
---------------------------------------------------------------------------
H.R. 3125, the Radio Spectrum Inventory Act, was developed
to provide policymakers with greater transparency concerning
the current uses of spectrum and the potential availability of
spectrum for new and innovative services, including broadband
services.
Legislative History
On July 8, 2009, Reps. Waxman, Boucher, Barton, and Stearns
introduced H.R. 3125, the Radio Spectrum Inventory Act. The
bill was referred to the Subcommittee on Communications,
Technology, and the Internet on July 9, 2009. The Subcommittee
held a legislative hearing on H.R. 3125 on December 15, 2009.
The Subcommittee received testimony from witnesses representing
the New America Foundation, Lockheed Martin Corporation, CTIA--
The Wireless Association, the National Association of
Broadcasters, and Shared Spectrum, Inc., as well as from a
professor at the University of Colorado.
Committee Consideration
On Thursday, January 21, 2010, the Subcommittee on
Communications, Technology, and the Internet met in open markup
session to consider H.R. 3125. The Subcommittee adopted an
Amendment in the Nature of a Substitute offered by Subcommittee
Chairman Boucher and subsequently forwarded H.R. 3125, amended,
favorably to the full Committee by a voice vote.
The full Committee met in open markup session on Wednesday,
March 10, 2010. The Committee adopted an Amendment in the
Nature of a Substitute offered by Mr. Boucher. Subsequently the
Committee ordered H.R. 3125 favorably reported to the House,
amended, by a voice vote.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto. A
motion by Mr. Waxman to order H.R. 3125 favorably reported to
the House, amended, was agreed to by a voice vote. There were
no recorded votes taken during the consideration of H.R. 3125.
Statement of Committee Oversight Findings and Recommendations
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report.
Constitutional Authority Statement
Under clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, the Committee must include a statement
citing the specific powers granted to Congress to enact the law
proposed by H.R. 3125. Article I, section 8, clauses 3 and 18
of the Constitution of the United States grants the Congress
the power to enact this law.
Earmarks and Tax and Tariff Benefits
H.R. 3125 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e), or 9(f) of rule XXI of the Rules of the
House of Representatives.
Federal Advisory Committee Statement
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., section 5(b).
Applicability of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to terms and conditions of
employment or access to public services and accommodations.
H.R. 3125 directs the NTIA and the FCC to create a spectrum
inventory. As such this bill does not relate to employment or
access to public services and accommodations.
Federal Mandates Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement whether
the provisions of the reported bill include unfunded mandates.
In compliance with this requirement the Committee has received
a letter from the Congressional Budget Office included herein.
Committee Cost Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 3125. Clause 3(d)(3)(B) of that rule, however, provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for H.R. 3125 from the Director of
the Congressional Budget Office:
March 22, 2010.
Hon. Henry A. Waxman,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3125, the Radio
Spectrum Inventory Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susan Willie.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 3125--Radio Spectrum Inventory Act
Summary: H.R. 3125 would require the National
Telecommunications Information Administration (NTIA) and the
Federal Communications Commission (FCC) to conduct an inventory
of the license holders and users of certain frequencies of the
radio broadcast spectrum. The agencies would be required to
complete the inventory within one year of enactment of the bill
and to make the results available to the public on the
Internet.
Based on information from NTIA and FCC, CBO estimates that
implementing H.R. 3125 would increase net discretionary
spending by $16 million over the 2011-2015 period, assuming
appropriation of the necessary amounts. Pay-as-you-go
procedures do not apply to this legislation because it would
not affect direct spending or revenues.
H.R. 3125 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would not affect the budgets of state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 3125 is shown in the following table.
The costs of this legislation fall within budget function 370
(commerce and housing credit).
----------------------------------------------------------------------------------------------------------------
By fiscal year in millions of dollars--
-----------------------------------------------------------------------------
2011 2012 2013 2014 2015 2011-2015
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level..... 3 3 4 3 4 17
Estimated Outlays................. 2 3 4 3 4 16
----------------------------------------------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted near the end of fiscal year 2010 and that
the necessary amounts will be appropriated each year.
H.R. 3125 would require the two federal agencies
responsible for managing the telecommunications spectrum (NTIA
for federal government use and FCC for commercial and
nonfederal use) to conduct an inventory of the license holders
and users of certain radio frequencies that they manage. The
inventory would be completed within one year of enactment of
the bill and would be updated on a quarterly basis. The bill
also would require the agencies to make the results of the
inventory available to the public on the Internet.
The bill would require the agencies to prepare two reports.
The first, to present the results of the inventory, would be
due two years after the date of enactment and would be updated
biennially thereafter. The second, to provide recommendations
by NTIA and the FCC of spectrum that should be reallocated or
made available for sharing, would be due four years after
enactment and would be updated every four years thereafter.
Based on information from NTIA and the FCC, CBO estimates
that implementing H.R. 3125 would cost $31 million over the
2011-2015 period, assuming appropriation of the necessary
amounts. Most of that cost would be incurred to collect
information about the users of each band of spectrum and update
the databases that track that information. CBO estimates that
costs to the FCC would total $15 million over the 2010-2015
period; costs to NTIA would be about $16 million over the same
period. Further, under current law, the FCC is authorized to
collect fees to offset the costs of its regulatory program;
subject to appropriations action, CBO estimates that the FCC
would collect $15 million in fees to offset the bill's costs.
Therefore, CBO estimates that implementing H.R. 3125 would
increase net discretionary spending by $16 million over the
2011-2015 period.
Pay-as-you-go considerations: None.
Intergovernmental and private-sector impact: H.R. 3125
contains no intergovernmental or private-sector mandates as
defined in UMRA and would not affect the budgets of state,
local, or tribal governments.
Previous CBO estimate: On July 28, 2009, CBO transmitted a
cost estimate for S. 649, the Radio Spectrum Inventory Act, as
ordered reported by the Senate Committee on Commerce, Science,
and Transportation on July 8, 2009. The Senate bill includes a
requirement to make the inventory available to the public on
the Internet, updated as changes occur. H.R. 3125 does not
include the real-time update requirement but does require the
agencies to collect more detailed information for the
inventory. The cost estimates for the two bills reflect those
differences.
Estimate prepared by: Federal Costs: Susan Willie; Impact
on State, Local, and Tribal Governments: Elizabeth Cove
Delisle; Impact on the Private Sector: Sam Wice.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Section-by-Section Analysis of the Legislation
Section 1. Short title
This Act is entitled the ``Radio Spectrum Inventory Act''.
Section 2. Radio spectrum inventory
Section 2 of the bill creates new section 119 of the
National Telecommunications and Information Administration
Organization Act.
New section 119(a) requires the NTIA and the FCC to develop
an inventory of each spectrum band in the U.S. Table of
Frequency Allocations from 225 megahertz to at least 3.7
gigahertz, and to 10 gigahertz unless the NTIA and the FCC
determine that the burden of expanding the inventory outweighs
the benefits. The inventory shall include (1) the services
authorized to operate in each band; (2) the identity of each
federal or non-federal user authorized to operate in each band;
(3) the activities, capabilities, functions, or missions
supported by the devices in each band of frequencies, including
whether such missions are space, air, or ground based; (4) the
total amount of spectrum assigned or licensed to each federal
or non-federal user and the geographic areas covered by these
allocations; (5) the approximate number of transmitters or
other devices authorized to operate within each allocation; and
(6) an approximation of the extent of use by geography of each
federal or non-federal user within each band.
To the greatest extent possible, the inventory would also
include: (1) contour maps or other information that illustrate
the coverage areas of users in each spectrum band, (2) the
identity of each entity offering unlicensed services and the
types and approximate number of unlicensed devices verified or
certified by the FCC that are authorized to operate in each
band, and (3) for non-federal users, any commercial names under
which the user offers service to the public.
The NTIA and the FCC are required to create a centralized
portal or Web site to make the inventory available to the
public under subsection (a)(2).
New subsection (a)(1)(F) directs the NTIA and the FCC to
collect information that would approximate ``the extent to
which each federal or non-federal user is using, by geography,
each band of frequencies, such as the amount and percentage of
time of use, number of end users, or other measures as
appropriate to the particular band and radio service.'' The
reference to ``amount and percentage of time of use'' is merely
illustrative of the types of information that may be
appropriate for the agencies to use to characterize the extent
of use in each spectrum band, but it is not a requirement.
Although the agencies are not required to include ``amount and
percentage of time of use'' to describe the extent of use, the
Committee encourages federal and non-federal users to report
such information whenever it is readily available and
appropriate to characterize the use of that band of spectrum.
If such information is reported, the NTIA and the FCC are
encouraged to provide further context regarding such use in the
reports to Congress under subsection (c), including the
functions or missions supported by the devices located in the
band.
New section 119(b) directs the FCC and the NTIA to first
use agency resources, including existing databases, field
testing, and recordkeeping systems, in creating the inventory.
The FCC and the NTIA should only request information from
federal and non-federal users if information needed for the
inventory cannot be obtained using agency resources. The
Committee expects the agencies to follow the same requirement
with respect to the creation of the centralized portal or Web
site that makes the inventory public. The Committee does not
intend that the bill will require the imposition of extensive
new data reporting obligations on licensees. To the extent the
agencies require additional information from federal and non-
federal users, the Committee encourages the agencies to require
only the submission of additional information that is readily
available. The Committee intends for the reference to ``field
testing'' to be illustrative of the types of existing agency
resources that the NTIA and the FCC shall first use before
obtaining information from spectrum licensees. The Commission
should treat existing databases and recordkeeping systems in
the same manner. The Committee does not intend for the agencies
to expend additional resources such as conducting additional
field tests to collect data to comply with this subsection.
New section 119(c) directs the NTIA and the FCC to provide
reports to the House Committee on Energy and Commerce and
Senate Committee on Commerce, Science, and Transportation
biennially, commencing not later than two years after the date
of enactment. These reports shall contain: (1) the results of
the inventory, including any updates; (2) a description of any
information that the NTIA or the FCC determines is necessary
for the inventory but was unavailable; (3) a description of any
information that was not made available for the inventory due
to the national security and public safety provisions of the
Act; and (4) if the NTIA and the FCC have not extended the
inventory to 10 GHz at least 90 days before the date the third
inventory report (6 years after the date of enactment) is
submitted to the Committees, an evaluation in that report and
in every report thereafter of whether the burden of expanding
the inventory to 10 GHz outweighs the benefit until such time
as the NTIA and the FCC have extended the inventory to 10 GHz.
Under new section 119(c)(2), the NTIA and the FCC must
submit a separate report to Congress not later than 4 years
after the date of enactment of the bill and every 4 years
thereafter containing a recommendation of which spectrum
frequencies, if any, should be reallocated or otherwise made
available for shared access and an explanation of the basis for
that recommendation. The Committee does not intend for this
quadrennial reallocation report requirement to delay, impede,
or otherwise interfere with existing or ongoing efforts by the
NTIA or the FCC to identify spectrum for reallocation or shared
access. Rather, the Committee seeks to create a regular process
by which the NTIA and the FCC will continuously review the
efficiency of spectrum usage. Nothing in the bill prevents the
NTIA and the FCC from completing and submitting any relocation
report prior to the deadlines set forth in the measure, and the
Committee strongly encourages the agencies to do so. The
Committee is encouraged by the goal outlined in the National
Broadband Plan of freeing up 500 MHz of spectrum over the next
decade for wireless services and believes such efforts should
commence immediately and without regard to the timing of the
reports required under (c)(3).
Furthermore, by using the term ``shared access,'' the
Committee does not mean to exclude non-traditional modes of
``sharing'' among distinct users. Rather, the NTIA and the FCC
should also consider dynamic sharing involving so-called
``smart'' sensing devices, or devices that are able to access
real-time spectrum monitoring databases.
When providing reallocation recommendations, if any, the
NTIA and the FCC should base such recommendations not only on
how much the spectrum is currently used, but also on the nature
of such use, including whether the spectrum is utilized in
bursts and whether its usage varies significantly with specific
incidents such as during emergency responses and military
exercises. The NTIA and the FCC should consult with federal
agencies affected by the recommendations contained in the
report.
Should the NTIA and the FCC decide to not expand the
inventory to include spectrum located between 3.7 Gigahertz and
10 Gigahertz, this bill, under new section 119(c)(3), requires
that they submit a cost-benefit analysis to Congress starting
with the third inventory report. The Committee does not intend
for the cost-benefit analysis to be overly burdensome. The NTIA
and the FCC should provide a summary description of the burdens
of expanding the inventory to additional spectrum and any
corresponding benefits. The cost of conducting an expanded
inventory may include the burden on resources or personnel or
significant national security and public safety concerns. The
benefit may include the extent to which there is potential
value in other commercial or government use of the spectrum
above 3.7 GHz in light of currently available technologies to
use such frequencies, or the extent to which relocation leads
to more efficient uses of spectrum by the relocated users. The
agencies are not required to provide a band-by-band cost-
benefit analysis.
New section 119(d) directs the NTIA and the FCC to make all
reasonable efforts to maintain and update the information in
the inventory on a quarterly basis, including information
regarding transfer, auction, or change in a permanent
assignment of a license.
New section 119(e) allows a federal executive branch agency
head to withhold from public disclosure information the head of
the agency determines would be detrimental to national
security, homeland security, or public safety if released
publicly. Under this provision, the head of the executive
agency would determine whether public disclosure of certain
information would reveal classified national security
information or other information for which there is a legal
basis for nondisclosure (such as an exemption from disclosure
under the Freedom of Information Act) and such public
disclosure would be detrimental to national security, homeland
security, or public safety. The head of an executive branch
agency should follow the same procedures with regard to
information held by a licensee of non-federal spectrum that has
entered into a service arrangement with an executive branch
agency or otherwise allows the executive agency access to non-
federal spectrum for governmental purposes. A licensee of non-
federal spectrum seeking to utilize the national security
mechanisms of this subsection must seek invocation of this
exception from the appropriate executive branch agency with
expertise in the core business functions and operations of the
licensee.
The agency head must provide to the NTIA the publicly
releasable information, a summary description of the
information being withheld from public disclosure, and an annex
that will be provided to Congress containing the information to
be withheld from public disclosure. The agency head must also
include descriptions of the activities, capabilities,
functions, or missions supported by the information being
withheld. A licensee of non-federal spectrum may also seek a
waiver from the FCC for the purpose of withholding from public
disclosure information that would be detrimental to public
safety or the disclosure of which is otherwise prohibited by
law, but the licensee must justify the exemption before the FCC
and shall provide clear and convincing evidence to support such
an exemption. The licensee must similarly provide the FCC with
a summary and annex that will be provided to Congress.
Under new section 119(e)(4), prior to the release of the
inventory, the inventory reports to Congress, or the updates to
the inventory, the NTIA and the FCC are required to consult
with the National Security Council for a period not to exceed
30 days. The Committee intends for this review process to allow
the National Security Council to determine whether the release
of aggregated information required for the spectrum inventory,
subsequent reports to Congress, or updates might disclose
information publicly that would be detrimental to national
security, homeland security, or public safety. In consulting
with the National Security Council, the NTIA and the FCC shall
follow the national security procedures established elsewhere
in subsection (e) for the treatment of any information to be
classified or withheld under (e)(4). The Committee expects any
such review by the National Security Council to be completed
within the statutorily prescribed 30-day period.
It is the intention of the Committee that any release of
classified information provided to the NTIA and Congress under
subsection (e) will adhere to well-established procedures
regarding the treatment of classified information. It is the
intention of the Committee that only individuals with the
appropriate security clearances will have access to such
information.
In preparing the spectrum inventory and any recommendations
about future spectrum reallocations, the NTIA and the FCC
should take into account the critical importance of spectrum to
the military during training and operations and during
conflicts, and should consider that spectrum is vital to
mission effectiveness. The NTIA and the FCC should also
recognize that spectrum is fundamental to the range of military
operations, and spectrum availability is essential to existing
and emerging technologies in electronic warfare, network-
centric operations, communications systems, satellite
resources, and multi-spectral sensors.
New section 119(f) instructs the NTIA and the FCC to
continue to follow their rules and practice regarding the
protection of confidential and proprietary information in
implementing this Act. This provision also clarifies that
nothing in this subsection shall be construed to compel the FCC
to make publicly available any confidential or proprietary
information. The Committee recognizes that compiling data
pursuant to this Act may involve the use of competitively
sensitive, confidential, or proprietary information. It
therefore expects that the NTIA and the FCC will take all
necessary steps to protect from disclosure any information that
has been or is submitted to them on a confidential basis and to
which the agencies' existing rules and practice would afford
protection from public disclosure. The NTIA and the FCC should
also ensure that no such information is disclosed on the
centralized portal or Web site. Thus, pursuant to new
subsection (f), submission of confidential or proprietary
information by a non-federal user would be governed by the
Commission's existing rules and practice applicable to such
information.
Explanation of Amendment
During full Committee consideration of H.R. 3125, an
amendment in the nature of a substitute was offered by
Subcommittee Chairman Boucher. This substitute amendment was
adopted by a voice vote. Among other changes, the substitute
amendment (1) separates the relocation recommendations of the
NTIA and the FCC from the biennial inventory report and creates
a separate quadrennial report for such recommendations; (2)
moves the cost-benefit analysis required of the NTIA and the
FCC for not expanding the inventory to 10 GHz until the third
inventory report; (3) specifies that the inventory update and
maintenance requirement shall occur on a quarterly basis,
rather than every time a license changes hands; and (4) changes
the national security section to remove the ``national
security'' and ``homeland security'' exemptions from the FCC
waiver process and to require the agencies to consult with the
National Security Council prior to any public release of the
information. The agencies may seek exemptions based on national
security, homeland security, and public safety not only for
information held by the agencies, but also for information held
by licensees of non-federal spectrum.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION ORGANIZATION
ACT
* * * * * * *
TITLE I--NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION
* * * * * * *
PART B--TRANSFER OF AUCTIONABLE FREQUENCIES
* * * * * * *
SEC. 119. SPECTRUM INVENTORY.
(a) Radio Spectrum Inventory.--In order to promote the
efficient use of the electromagnetic spectrum, the NTIA and the
Commission shall coordinate and carry out each of the following
activities not later than 1 year after the date of enactment of
this section:
(1) Except as provided in subsection (e), create an
inventory of each radio spectrum band of frequencies
listed in the United States Table of Frequency
Allocations, from 225 megahertz to, at a minimum, 3.7
gigahertz, and to 10 gigahertz unless the NTIA and the
Commission determine that the burden of expanding the
inventory outweighs the benefit, that includes--
(A) the radio services authorized to operate
in each band of frequencies;
(B) the identity of each Federal or non-
Federal user within each such radio service
authorized to operate in each band of
frequencies;
(C) the activities, capabilities, functions,
or missions (including whether such activities,
capabilities, functions, or missions are space-
based, air-based, or ground-based) supported by
the transmitters, end-user terminals or
receivers, or other radio frequency devices
authorized to operate in each band of
frequencies;
(D) the total amount of spectrum, by band of
frequencies, assigned or licensed to each
Federal or non-Federal user (in percentage
terms and in sum) and the geographic areas
covered by their respective assignments or
licenses;
(E) the approximate number of transmitters,
end-user terminals or receivers, or other radio
frequency devices authorized to operate, as
appropriate to characterize the extent of use
of each radio service in each band of
frequencies;
(F) an approximation of the extent to which
each Federal or non-Federal user is using, by
geography, each band of frequencies, such as
the amount and percentage of time of use,
number of end users, or other measures as
appropriate to the particular band and radio
service; and
(G) to the greatest extent possible--
(i) contour maps or other information
that illustrate the coverage area,
receiver performance, and other
parameters relevant to an assessment of
the availability of spectrum in each
band;
(ii) for each band or range of
frequencies, the identity of each
entity offering unlicensed services and
the types and approximate number of
unlicensed intentional radiators
verified or certified by the Commission
that are authorized to operate; and
(iii) for non-Federal users, any
commercial names under which
facilities-based service is offered to
the public using the spectrum of the
non-Federal user, including the
commercial names under which the
spectrum is being offered through
resale.
(2) Except as provided in subsection (e), create a
centralized portal or Web site to make the inventory of
the bands of frequencies required under paragraph (1)
available to the public.
(b) Use of Agency Resources.--In creating the inventory
described in subsection (a)(1), the NTIA and the Commission
shall first use agency resources, including existing databases,
field testing, and recordkeeping systems, and only request
information from Federal and non-Federal users if such
information cannot be obtained using such agency resources.
(c) Reports.--
(1) In general.--Except as provided in subsection
(e), not later than 2 years after the date of enactment
of this section and biennially thereafter, the NTIA and
the Commission shall submit a report to the Committee
on Commerce, Science, and Transportation of the Senate
and to the Committee on Energy and Commerce of the
House of Representatives containing--
(A) the results of the inventory created
under subsection (a)(1), including any update
to the information in the inventory pursuant to
subsection (d);
(B) a description of any information the NTIA
or the Commission determines is necessary for
such inventory but that is unavailable; and
(C) a description of any information not
provided by any Federal or non-Federal user in
accordance with subsections (e)(1)(B)(ii) and
(e)(2)(C)(ii).
(2) Relocation report.--
(A) In general.--Except as provided in
subsection (e), the NTIA and the Commission
shall submit a report to the Committee on
Commerce, Science, and Transportation of the
Senate and the Committee on Energy and Commerce
of the House of Representatives containing a
recommendation of which spectrum, if any,
should be reallocated or otherwise made
available for shared access and an explanation
of the basis for that recommendation.
(B) Deadlines.--The report required under
subparagraph (A) shall be submitted not later
than 4 years after the date of enactment of
this section and every 4 years thereafter.
(3) Inventory report.--If the NTIA and the Commission
have not conducted an inventory under subsection (a) to
10 gigahertz at least 90 days before the third report
required under paragraph (1) is submitted, the NTIA and
the Commission shall include an evaluation in such
report and in every report thereafter of whether the
burden of expanding the inventory to 10 gigahertz
outweighs the benefit until such time as the NTIA and
the Commission have conducted the inventory to 10
gigahertz.
(d) Maintenance and Updating of Information.--After the
creation of the inventory required by subsection (a)(1), the
NTIA and the Commission shall make all reasonable efforts to
maintain and update the information required under such
subsection on a quarterly basis, including when there is a
transfer or auction of a license or a change in a permanent
assignment or license.
(e) National Security and Public Safety Information.--
(1) Nondisclosure.--
(A) In general.--If the head of an executive
agency of the Federal Government determines
that public disclosure of certain information
held by that agency or a licensee of non-
Federal spectrum and required by subsection
(a), (c), or (d) would reveal classified
national security information or other
information for which there is a legal basis
for nondisclosure and such public disclosure
would be detrimental to national security,
homeland security, or public safety, the agency
head shall notify the NTIA of that
determination and shall include descriptions of
the activities, capabilities, functions, or
missions (including whether they are space-
based, air-based, or ground-based) supported by
the information being withheld.
(B) Information provided.--The agency head
shall provide to NTIA--
(i) the publicly releasable
information required by subsection
(a)(1);
(ii) to the maximum extent
practicable, a summary description,
suitable for public release, of the
classified national security
information or other information for
which there is a legal basis for
nondisclosure; and
(iii) a classified annex, under
appropriate cover, containing the
classified national security
information or other information for
which there is a legal basis for
nondisclosure that the agency head has
determined must be withheld from public
disclosure.
(2) Public safety nondisclosure.--
(A) In general.--If a licensee of non-Federal
spectrum determines that public disclosure of
certain information held by that licensee and
required to be submitted by subsection (a),
(c), or (d) would reveal information for which
public disclosure would be detrimental to
public safety, or the licensee is otherwise
prohibited by law from disclosing the
information, the licensee may petition the
Commission for a partial or total exemption
from inclusion on the centralized portal or Web
site under subsection (a)(2) and in the report
required by subsection (c).
(B) Burden.--The licensee seeking an
exemption under this paragraph bears the burden
of justifying the exemption and shall provide
clear and convincing evidence to support such
an exemption.
(C) Information required.--If an exemption is
granted under this paragraph, the licensee
shall provide to the Commission--
(i) the publicly releasable
information required by subsection
(a)(1) for the inventory;
(ii) to the maximum extent
practicable, a summary description,
suitable for public release, of the
information for which public disclosure
would be detrimental to public safety
or the licensee is otherwise prohibited
by law from disclosing; and
(iii) an annex, under appropriate
cover, containing the information that
the Commission has determined should be
withheld from public disclosure.
(3) Additional disclosure.--The annexes required
under paragraphs (1)(B)(iii) and (2)(C)(iii) shall be
provided to the congressional committees listed in
subsection (c), but shall not be disclosed to the
public under subsection (a) or subsection (d) or
provided to any unauthorized person through any other
means.
(4) National security council consultation.--Prior to
the release of the inventory under subsection (a), any
updates to the inventory resulting from subsection (d),
or the submission of a report under subsection (c)(1),
the NTIA and the Commission shall consult with the
National Security Council for a period not to exceed 30
days for the purposes of determining what additional
information, if any, shall be withheld from the public.
(f) Proprietary Information.--In creating and maintaining the
inventory, centralized portal or Web site, and reports under
this section, the NTIA and the Commission shall follow their
rules and practice regarding confidential and proprietary
information. Nothing in this subsection shall be construed to
compel the Commission to make publicly available any
confidential or proprietary information.
* * * * * * *