Bryan Tramont of Wilkinson Barker Knauer on C-Band and the Future of Spectrum Policy

Scott Wallsten: Hi and welcome back to the Technology Policy Institute’s podcast, Two Think Minimum. It’s Tuesday, November 12th, 2019. I’m Scott Wallsten, President and Senior Fellow at TPI and I’m joined by my colleague and cohost TPI Senior Fellow Sarah Oh. Today we’re excited to talk with Bryan Tramont. Bryan is Managing Partner of Wilkinson Barker Knauer, a top tier law firm according to Chambers and Legal 500 Bryan offers strategic counsel to Fortune 100 companies, trade associations, small and midsize telecommunications and media companies, on all aspects of communications law and regulation. Bryan has also served as Chief of Staff and Senior Legal Advisor for FCC chairman Michael Powell. His other top level FCC gigs have included at Senior Legal Advisor to Commissioners Kathleen Abernathy and Harold Furchtgott-Roth. He’s been recognized as one of the nation’s top communications lawyers. If there’s a list he’s on it, including 2016 Lawyer of the Year in Communications law and the top 10 Washington DC Super Lawyer, 2017 Lawyer of the year in media law, was named in 2017 to be Inaugural Legal 500 Hall of Fame, and Lawyer of the Year in 2020 edition of Best Lawyers in America, which is amazing cause it’s not even 2020 yet. So, and although there’s no award for it, Bryan is also known throughout the telecom world regardless of your economic or political leanings or company you work for or represent, as not just a super insider, unmatched knowledge, but also the friendliest, most helpful and most honest person around. So welcome Bryan. 

Bryan Tramont: Thank you for speaking with Scott. It’s great to be here. 

Scott Wallsten: So I thought we’d start off with an area that there’s been a lot of talk about, which is C-band.

Bryan Tramont: I’ve heard of it. 

Scott Wallsten: I guess some people have. Why don’t you just give a quick background of C-band, what the issues are and then we’ll take it from there.

Bryan Tramont: Sure. So C-band is a remarkable opportunity for the United States to lead on mid band spectrum policy. It’s critical for 5G that the spectrum be utilized for wireless broadband. The challenges are in some ways unique, but in many ways, very familiar. For many years to C-band has been used by satellite providers to connect in many cases, content companies to, well, their content to be accurate. By most people’s accounts that use is probably not the most efficient or highest valued use for that 500 MHz of spectrum. The commission has identified that under Chairman Pai’s leadership and has been working towards figuring out ways to convert the spectrum to a higher value use. It’s not a dissimilar experience than the ones that we’ve gone through to convert federal government users to commercial broadband spectrum, wireless broadband spectrum or to convert the broadcasters during the incentive auction or the channels, 60 to 69, and 70 and 79 those proceedings. So it’s a, it joins a long progression of a seemingly never-ending challenge to allow spectrum to rise to its highest and best use after prior administrations of both parties for that matter have adopted very restrictive uses. That’s the challenge presented. There’s a lot of moving parts because you have the satellite providers who provide the connectivity, you have the customers, who are actually not the licensees, and most often the content companies, often broadcasters, cable companies, and then you have the wireless industry, it’s very, very eager to buy up this spectrum and to invest in the 5G future as a country. Because of where we are in the overall spectrum landscape, this is one of the rare opportunities we have at mid band to make 5G spectrum available. Recall at a broader level 5G requires spectrum at a lower, mid, and upper bands. The lower band, the United States has done a nice job, most recently, with the incentive auction. Upper bands, we’ve done a good job of making millimeter wave available. Where we’ve really struggled is the mid band. There are some opportunities there but the C-band is really the key one for us to maintain global leadership. 

Scott Wallsten: Early on there was an agreement that we would at least in some way compensate the current users of the spectrum and I want to come back to that, but most of the controversy has been, at least recently, for one how to do it, how much sort of incentive do the satellite providers need to leave or to give up some of their spectrum. And also kind of below the surface, it’s always seem to be, how do we get to 300 MHz. So talk about that controversy and also maybe, where did the 300 target number come from? Even though it’s nothing official.

Bryan Tramont: I guess I’d start with the 300 number and I think the C-band Alliance, which is a coalition of satellite companies, came forward with a proposal that made about 200 available. In some ways I think 300 became the number because it’s more than 200. If they had come with 300 they might have ended up at 400, I don’t exactly know. But I think in TPI, I think you institutionally will be sympathetic to this idea, which is I think that the economics should dictate how much spectrum they give up. This tripartite structure that is to say the satellite companies versus their customers versus this entrenched wireless industry has made the traditional kind of economic interactions very challenging because the customers have been seemingly the most reluctant to make this change, but in reality, if the people who are providing the service to them view as uneconomic to keep providing the service to them, then they probably shouldn’t have the service anymore. I think there’s an economic answer to how much it’ll be, and I think to the Commission’s credit, a lot of the work they’ve done has been trying to drive towards that solution. As for the first part, which is the notion about where should the money go, I find this a little bit frustrating because we’ve been to this rodeo a number of times during my time at the commission, afterwards. This notion that we’re going to try to fence off every example of windfall in the spectrum market is insanity. In my mind, it can lead to some demagoguery in terms of how the policy rolls out. I love auctions. I think it’s been one of the greatest innovations the country has ever known in terms of spectrum policy, and indeed the world, and the incentive auction was a great example of creative solutions in that regard, but I don’t that it should trouble people that companies invest in spectrum and then they get additional rights, or their uses change and they make more money. I think that is what markets are about. Sometimes people bet and win. Sometimes people bet and lose. We want to encourage people to invest in their spectrum rights and let it evolve to its highest and best use. If we’re constantly trying to catch up in terms of what the windfall is, I think it’s very complicated and likely to cause delay and ultimately harm the economy. 

Scott Wallsten: I think in even a more blunt way to put that from an economist perspective is that windfalls really don’t matter from it from an economics perspective. It’s just a transfer of money and we just want that spectrum to go to its highest valued use. On the other hand, windfalls really annoy people. Is there any way for deciding what’s the right amount of money that will help get an incumbent out of a band? 

Bryan Tramont: I’ve written some about this and there’s been a fair amount of work done on this. I think there’s a calculus to be done about when the most economic thing is to take the spectrum away from people and compensate the incumbent versus to grant the incumbent the rights and I think that’s a calculable conversation to be had. I don’t know that that’s the one we’re having right now. I think we’re right now having a conversation about what we need to do politically to get this done. I don’t know that that’s the wrong conversation to have because I do think getting it done is probably the top imperative and speed is important here. I agree with you about the notion that it’s just a complicated question, but it is knowable.

Sarah Oh: There have been hearings on the Hill about it. So there’s congressional interest. Why are politics involved? Why is Congress interested in C-band?

Bryan Tramont: I teach a spectrum management course at University of Colorado and I also teach one at Catholic University, and I ask my students this question. I say, why would Congress be so interested in spectrum and why does spectrum keep getting included in things like the Middle Class Tax Relief Act? And then the answer, of course, is money. And if you are sitting on Capitol Hill and you have the ability to raise revenue that you can then spend, it becomes a very appealing political conversation to have. In this case, I think the fact that some of the satellite companies are largely foreign affiliated has further contributed to some of the political intensity around these issues. But it’s very popular topic on Capitol Hill and, and the constituencies involved, I should say, the wireless industry is obviously critical, critical to economic growth. And the country leading on 5G has been shown to be tremendously important to the overall economy as we led in 4G. That constituency is very interested in getting this done quickly. The broadcasters and content companies who receive the services are also very politically connected and receive critical information over these airwaves, and so they also had been expressing concern about what the repack would look like. There’s a lot of pretty influential parties who are talking to their representatives and that is prompted all the attention. 

Scott Wallsten: So it sounds like they care mostly about two things. One is to make sure that they get as much or more local coverage as they always have, TV and maybe radio, but TV primarily, news coverage, and also that they worry about the windfall issue cause they would like to see more money going to the Treasury.

Bryan Tramont: I would like to think they’d also worry about 5G leadership and continuity of service. 

Scott Wallsten: We Would like to think that. Let me ask a process question that also has no real answer, or it has an answer but it’s shrouded in complicated pragmatic decisions. We’ve decided that the C-band spectrum will go for licensed spectrum, but there are two other proceedings happening now as well. But for 5.9 GHz with one point set aside for auto safety and still is, and then 6 GHz, which in some ways similar to C-band uses but not exactly. And those two, the general belief is that they’ll go to unlicensed. Now without expressing any preference for unlicensed versus licensed, I mean you can express that preference if you’d like, how does it happen that that deal is made? That one is going to go for licensed and another is going to go for unlicensed? Given that, I should add a caveat, that we don’t yet have any good market mechanisms for making that decision. As much as we want to say that regulators shouldn’t be making choices about how the spectrum is going to be used, we haven’t yet figured out a way to avoid that choice.

Bryan Tramont: There’s been some work done on this about whether or not there’s some way to create a mechanism that the market would determine when it’s licensed versus unlicensed. I think there are certainly theoretical models that would allow you to do that. The unlicensed community has never been particularly interested in pursuing those models, even when the Commission has facilitated that possibility. The vehicular communication band is particularly interesting because I was at the Commission when we first allocated that spectrum for that use.

Scott Wallsten: Not many people admit that. 

Bryan Tramont: Yeah, I know it’s embarrassing. There are a few of those that are still unfortunately bobbing around. But that one, it just never worked. And we’re 20 years in, and the spectrums to ever come to conduct constructive endpoint. It also reflected sort of a different era of spectrum management, albeit one that was moving in a more progressive direction. Although as I say, I think CV decks for example does present some interesting opportunities there. I do understand the needs of the automotive community potentially have a home, which I think is a little bit unique because of the ubiquitous nature of the industry. It’s not obvious to me that the normal market would work as well for the vehicular safety band, but maybe that’s a debate for their time. I think the larger question that you raise is a good one, which is when do we decide which spectrum goes where as between unlicensed and licensed. There has been a consensus that has emerged, with debate on the edges, that we are predominantly a licensed first country and that we create opportunities for unlicensed but that is not sort of quote unquote “entitled” to the same amount of spectrum is licensed. Some of that is the bias associated with the treasury, some of it’s the nature of development. I think the licensed industry has a very strong track record of investment that has driven our network revolution and has made us the leaders in 4G. The unlicensed community has filled a role, as I tell my students, just as parks and roads fill a role alongside private property, so too does unlicensed fill a role amongst licensed spectrum. But I think at the end of the day, a license is still a primary driver for where we are and it’ll still continue to earn the lion’s share of the spectrum attention as spectrum is converted to new uses.

Scott Wallsten: Do you think this proceeding, even though of course we don’t know how any of this really going to turn out, represents sort of a detente between licensed and unlicensed, where they just agreed, okay, this 300 megahertz is going to be licensed and, what would it be 75, but is 45 MHz over here is unlicensed and that’s going to be the way it is?

Bryan Tramont: No, I think we’re going constantly have this conversation as much as we did in the incentive auction, in the context every time there’s a new spectrum frontier opened up, there’s going to be a conversation about which model is the best fit for what it is. And I think there’s going to be a mix and they’ll continue to be a mix and it’s not going to be over.

Scott Wallsten: David Redl who was head of NTIA gave a speech just before he resigned where he said, we have to stop looking at spectrum piecemeal, which sort of seems to what you said as we started. Are we breaking things down into even smaller pieces of this piecemeal approach with agencies now getting involved, the DOT is involved, and auto makers in what we call the auto spectrum. And there’s FERC maybe getting involved in the six GHz, electric utilities care about it. Are we becoming even more fragmented on spectrum policy?

Bryan Tramont: I hope not. It has not been a particularly strong period for the relationship between the executive branch and the FCC when it comes to spectrum management. That is unfortunate. It’s not good for the country and it’s important that we try to find a solution that allows each to serve their constituencies while still moving the national interest forward. And I do think that it has been not good for anyone when those fissures are exposed in a public setting. So let’s start with that. Second, I do think there is a need that has been identified by administrations of both parties over the years for a national spectrum strategy that lends some predictability to what we’re doing three to five years out, and that is a more comprehensive view of these puts and takes like the one you just described between licensed and unlicensed. I serve on the Commerce Department Spectrum Management Advisory Committee. One of the things we’ve been thinking about is, so what could that look like? I am a fan of trying to do something that’s three to five years out. I think part of that will need to be something that more systematically addresses the interaction between what is now the IRAC (Inter-department Radio Advisory Committee) and the FCC on these issues of shared jurisdiction because they’re not going away. We’re constantly going to have the conversation about spectrum that just shared between federal and non-federal users and the country will be better off if we find a more predictable and fast way of resolving these issues. Whether it’s the dockets that you’ve described or it’s Legado or something else, there is no shortage of examples of places where these tensions have come to the fore and it would be better if we can figure out a more systematic way to deal with them.

Scott Wallsten: You mentioned IRAC and that sort of raises a point about how different little known institutions can affect spectrum policy and we’re going to come back to that. Sarah, maybe you’ll ask something about that because you’ve been thinking about it a lot. But are you saying that you would be in favor of something like a national spectrum plan? 

Bryan Tramont: I am saying that.

Scott Wallsten: What would it look like? 

Bryan Tramont: Well it would have this three to five year time horizon. It would identify bands that’re going to be repurposed. It would give ideally some sort of auctions schedule. I am not saying it would tie, well ideally maybe it would tie their hands, it would give predictability to what spectrum is coming on the market, what spectrum changes are being had, etc.

Scott Wallsten: Was the national broadband plan section on spectrum- I mean it’s dated- that kind of approach? In that case, 500 MHz-

Bryan Tramont: I mean you can point to very- there had been multiple efforts to try and pull something like this together, so sure that’s one place to look. 

Scott Wallsten: Sarah, do you want to ask about the-

Sarah Oh: Yeah, institutionally, like what can SEC do to push that agenda forward? Or is it more the OSTP office or is NTIA? 

Bryan Tramont: Well, I mean one of the big problems is no one has authority to do it. At the end of the day, the FCC is an independent agency and you have the administration and they can’t tell each other what to do. Ultimately Congress would have to figure out what that would look like. I think you can do a fair amount cooperatively. There is this system whereby NTIA, the head of NTIA and the chairman of the FCC meet periodically to coordinate their activities together. I think you could pull that- make that cooperation stronger and try to develop something like this. And that might be a starting point, but you’re right, there’s no obvious center of power that could drive it towards that result.

Scott Wallsten: So let’s advertise a little bit for Wilkinson Barker. 

Bryan Tramont: No, no. Anything but that! 

Scott Wallsten: How did Wilkinson Barker become such an important part of the telecom policy world? How did this happen? 

Bryan Tramont: I don’t know what to do with that question. I will say that the firm has been around a time, it’s been around since the 50s. We have had a long tradition of an FCC practice. Former FCC chairman Rosel Hyde, we have a conference room here dedicated to him, was here for 20 years from 1970 to 1990, he was an FCC chairman for two presidents and of different parties. And he began at the Federal Radio Commission and then proceeded through being a Commissioner and then served, as I said, two different presidents as Chairman. So we have been around in this space for real long time and I’m honored to follow in the footsteps of some really tremendous practitioners and it’s been really fun, it’s great. And we try to, that Rosel’s method of operating and being bi-partisan and trying to solve problems is one that has been a part of the firm for its entire life. And I think Mr. Wilkinson, Mr. Barker and Mr. Knauer, we are all of similar ilk. 

Scott Wallsten: Let me ask you a question that’s a little bit less of a softball. 

Bryan Tramont: It wouldn’t be hard to be less softball than why are you start terrific! But yes, go ahead. Let’s talk about how great you are, we can do that next.

Scott Wallsten: Right. You’re part of Silicon Flat Irons and you’ve taught for them. How do you get students interested in this space? We’ve found, at least among economists, which is different from the students at Silicon Flat Irons, that there’s less interest in telecom as an area. It used to be the thing to study and we’d still like to encourage students to be interested in this again and to continue working on it. But it’s not like in its heyday. Is that true among students? I mean there’s a little bit of selection cause the students who are interested are coming to you. How do you keep the pipeline flowing? 

Bryan Tramont: So, I’ve been teaching at two places. I teach at Catholic University, I’ve been there almost 20 years and I’ve been at Colorado for about 15 as you alluded to. As Catholic for the last 10 plus years I’ve been teaching with Rosemary Herald, who’s the Enforcement Bureau chief and doing a great job. In Colorado I team teach with Dale Hatfield on a spectrum management course. In both cases, the schools have very, very strong traditions of leadership in our space. Harvey Zuckman at Catholic and Phil Weiser in Colorado are trailblazers in their field in setting up these institutes. Both have a strong history of alumni, you mentioned David Redl, he’s an alum of the Catholic program, as is Brendan Carr, as is Kathleen Abernathy, as is Kathleen Ham. There’s a long tradition there. And similarly at Colorado, you see a rising generation of great stars like Travis Litman at Commissioner Rosenworcel’s office. So both all these programs have really started to create communities around these issues. And I think that strong communities with inspiring leaders and strong values attract students. And I think that’s what’s happened. Both programs are in great shape. That Colorado program brings a about 15 or 20 students here each summer to serve as Hatfield scholars and work in various institutions around town, mostly government, but a lot of nonprofits, etc. At Catholic, this year they have 10 students that are all interning around town and very interested in these programs and stuff. So it’s a great tradition to be associated with. And I do think that in both cases, the hands on component, which has become all the rage in law schools these days has been a long time feature of both programs. I think that really captures students’ imaginations is getting them out into the field and working in these- whether it’s government or a law firm or a company- gives them the kind of hands on experience that starts to get them passionate. 

Scott Wallsten: Let’s go back to telecom policy for a minute. What do you think is the reality of 5G? How much of it is hype? How much of it is real? What have we actually seen so far? And among the build outs that we’ve seen, what do you think we’ve learned? I haven’t seen any kind of lessons learned yet, even from the policy or the engineering side. Not having seen it on the engineering side might just be my own ignorance. 

Bryan Tramont: I might share your ignorance on the engineering side. From a policy perspective, I think the job of the spectrum regulator, because we’d all regulated the technology. The role of government here is to, in my mind at least, make spectrum available for the highest and best use that the service providers can find. And whether that’s 5G or it’s going to be 6G or what have you, I don’t know how important that is, but I do know that it’s important to give the engine fuel to run. I don’t know if it’s going to go as fast as they say. Maybe it’ll go faster, maybe it’ll go slower. But I don’t know that we’re ever going to be worse off for having given the fuel. And one of the things we’ve done in this country, which has not been true around the world, is that we have not said this fuel will be used for 2G, this fuel will be for 3G. We have never been part of technology mandates; we’ve always let the industry drive it. And I think that will serve us well in 5G and beyond. I believe in the technology. I’m excited about what is going to do, especially for economic growth. But whether or not this widget is going to work the right way at the right time, I’m not the right guy. 

Scott Wallsten: What do you think the biggest policy or regulatory barriers are to whatever the market would want 5g to become, aside from spectrum.

Bryant Tramont: I think it’s spectrum and infrastructure. I don’t know that it’s that much more complicated than those two things. Infrastructure challenges are real and I think they are new, which in some ways makes them harder. On the spectrum side, we’ve been to this rodeo before we’d been re-purposing spectrum, well, depending on how you think about, we’ve been repurposing spectrum away from less valuable uses for a long time in part because the country had a lot of legacy uses before we got to wireless broadband. So we’ve been on that road for a while. On the infrastructure side that the nature of the networks is changing so fundamentally and the density of the deployments is so much greater that that’s just going to be a much harder political problem both in the NIMBY, the not my backyard component of it, but the economics also, they’re both extremely complicated for these densified networks. The commission has been focused on that issue as many states, I think we’re 26 States to pass laws to facilitate a small cell deployment, but there’s a lot left to do.

Scott Wallsten: Do you think federal preemption of things like pole attachments and so on, is the only feasible way forward?

Bryan Tramont: Well, I think it’s the best way forward. I think that- it makes no sense to me that a wireless carrier can’t put up a small cell without going through tribal environmental historic preservation review and paying the city a bunch of money when I can put up a basketball net, it’s the same size or smaller, and do none those things. 

Scott Wallsten: I’m sure you can do that in my town.

Bryan Tramont: Fair enough. You can’t do much in Takoma Park. If we’re really taking, I don’t mean to suggest in any way, shape, or form that the historic preservation and environmental review are not important- they are. But I think we have to have some perspective about when it matters and when it doesn’t. And I think that the notion that we need to have that kind of review for small cells, it’s a legacy notion that should be put to bed.

Scott Wallsten: One of the changes in the market structure, at least in wireless- I guess I shouldn’t say a change of market structure, we don’t know whether it will be- the T-Mobile/Sprint merger is the big biggest thing, but you’ve also got now cable companies offering, and Google, offering MVNOs with the cable companies as part of a quad play or a different kind of triple play as people don’t want their home phones anymore. And Google’s offering its own service, GoogleFi. Is that going to matter? Is that going to make a difference to the market? 

Bryan Tramont: I think, other countries, other markets have had more MVNOs, some have had less. If someone can cut a deal with a carrier and figure out a way to offer a service that distinguishes them from others, more power to them. At the end of the day, I’m not sure how it all lands in terms of shaping the market, but I think the development of MVNOs is great and it illustrates how competitive the market is.

Scott Wallsten: Yeah. I don’t know what I think about the cable’s wireless strategy. I’m glad that they were, that they are experimenting with it and they should keep trying things because that’s what we want people to be doing. But it’s hard to know how it’s going to play out.

Bryan Tramont: Exactly.

Sarah Oh: How about satellites? So do you think the low earth orbit satellites will be another competitive force for low latency connectivity? Will we have mobility with low earth orbits?

Bryan Tramont: One of the things I love about our space is that, which is the idea that you never know where the next platform is going to come from. You never know how it’s going to disrupt the market. Satellite changed everything about video. The DBS providers changed forever what the offerings were, how competitive they were, all those things. Satellite has played a role in the fixed broadband market for many people. Whether or not they can break into that next layer, we’ve heard about it before. The technology at various times has kind of gotten it out paced by threshold guys. Maybe this time it’ll be different. Maybe in some parts of the world that’s going to be the most compelling proposition. We certainly have seen the rest of the world hop over the United States by never deploying a wired network and going straight to wireless. Maybe there are going to be parts of the world that hop over the wireless network and goes straight to satellite and save all those infrastructure costs that a lot of other countries have had to invest in it. So I think it’s terrific. It’s great for the sector. I have a lot of my students who are very energized by space as an area of study. And I think it’s great for the country and it’s also excellent. The United States has been a real leader in satellite. This administration has been very committed to that leadership and I think it’s very much their credit. 

Scott Wallsten: How well do you think these new companies like, SpaceX, will know how to navigate the regulatory landscape? 

Bryan Tramont: I’m sure they’ll be fine. They’ve got a lot of good people in those companies and really do fine. And I do think, especially in satellite, it’s very important that the US take a leadership role globally on behalf of some of those companies. I think that’s an area where we really need to focus our attention. So I think that’s really important.

Scott Wallsten: I don’t know, I wonder, I mean one would have thought that about the tech companies too, the big tech companies. And it’s been a big learning curve for them. It’s not FCC necessarily, but- 

Bryan Tramont: They had a good long run, I would say. 

Scott Wallsten: They did, that is true. Good point.

Bryan Tramont: It has been rockier as of late, it appears. 

Scott Wallsten: So you think astronomers who now complaining about those trains of satellites blocking their views, you think they’ll figure all that out? 

Bryan Tramont: I love my radio astronomer friends. Yes, I think they’ll figure it all out and I’m just going to go with that. Thank you guys very much. I really appreciate the time.

Scott Wallsten: Thanks for coming on the podcast. We really appreciate having you. 

Bryan Tramont: Absolutely.