On March 9, 2023, the FCC’s spectrum auction authority expired for the first time since it was initially granted in 1993.  The authority enabled the FCC to auction spectrum when it received conflicting applications for a frequency in the wireless or broadcast services.   

Under the Balanced Budget Act of 1997, the FCC’s spectrum auction authority is the only permissible means by which the FCC may choose among two or more mutually exclusive applications for initial commercial licenses or permits.  Expiration of that authority leaves the FCC without any procedure to resolve mutually exclusive applications. As a result, the FCC cannot open any filing windows for new commercial services until the auction authority is reinstated. 

In a March 10, 2023 news release, FCC Chairwoman Jessica Rosenworcel reflected on the gravity of Congress’s failure to extend the Commission’s authority.  “To date, the FCC has held 100 auctions and raised more than $233 billion in revenues and unlocked extraordinary benefits for the American people.  It is my hope that the FCC’s auction authority is restored quickly so that this program is once again able to produce results for consumers and the economy.” 

Although we anticipate that the Commission will eventually regain its spectrum auction authority, until Congress acts, the path remains murky for hopeful individuals and companies seeking to obtain new commercial licenses or permits.  It is unlikely that the FCC will start a new rule making to propose alternative procedures for resolving competing applications.  Moreover, it could take years for an FCC rule making to be adopted. 

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