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“Nowhere in the act does it require the FCC to auction guard bands,” Eshoo said. “Attempts to rewrite the law through the rulemaking process should be rejected by the commission and will only serve to delay the release of new spectrum.”
FCC Chairman Julius Genachowski and Democratic commissioner Mignon Clyburn agreed that unlicensed spectrum should be prioritized, while Republican commissioners Robert McDowell and Ajit Pai echoed the concerns raised by Walden and other GOP lawmakers that money could be left on the table if too much spectrum is set aside for unlicensed use.
Republican lawmakers also questioned the structure of the auction, saying elements of the FCC’s current proposal may prevent the government from maximizing revenue from spectrum sales.
They warned that the commission should not set caps that limit which broadband providers can purchase the spectrum sold back by broadcasters to the federal government. Such caps could prevent dominant wireless companies AT&T and Verizon from buying up as much spectrum as they would like, but caps could also reduce the number of bidders and the revenue generated in the auction.
Rep. Lee Terry, R-Neb., said current laws already protect consumers and encourage competition, adding, “Many commenters have argued there should be no spectrum cap.”
But Rep. Henry A. Waxman, D-Calif., ranking member on the full committee, said the FCC “must have the authority to write rules that aim to avoid the concentration of spectrum in the hands of just a small group of companies.”
He noted that both the issue of unlicensed spectrum and bidder eligibility were sticking points for Congress when lawmakers were writing the auction legislation.
“I am troubled by attempts by some to relitigate issues that were resolved earlier this year,” Waxman said. “After-the-fact spin that unfairly twists the language of the law deserves little weight.”