[Federal Register Volume 88, Number 221 (Friday, November 17, 2023)]
[Presidential Documents]
[Pages 80079-80084]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25627]




                        Presidential Documents 



Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / 
Presidential Documents

___________________________________________________________________

Title 3--
The President

[[Page 80079]]

                Memorandum of November 13, 2023

                
Modernizing United States Spectrum Policy and 
                Establishing a National Spectrum Strategy

                Memorandum for the Heads of Executive Departments and 
                Agencies

                By the authority vested in me as President by the 
                Constitution and the laws of the United States of 
                America, and in order to meet the growing requirements 
                of United States radio frequency spectrum users, it is 
                hereby ordered as follows:

                Section 1. Policy. Radio frequency spectrum is among 
                our Nation's most important national resources. The 
                United States has long advanced our global 
                technological leadership by striking an appropriate 
                balance between promoting private-sector innovation and 
                furthering the missions of executive departments and 
                agencies (agencies). In recent years, however, rising 
                demand for always-connected devices and other factors, 
                such as the development of cooperative and automated 
                vehicles, the commercialization of space, and the 
                growing complexity and increased requirements of 
                Federal missions, have all led to increased competition 
                for scarce spectrum resources. Managing these diverse, 
                and at times competing, spectrum demands requires 
                careful planning and coordination. Agencies and 
                private-sector users must address these challenges by 
                working together in the best interests of the American 
                people.

                This memorandum directs my Administration to build on 
                prior innovation by promoting efficient and effective 
                spectrum use by both agencies and non-Federal users. My 
                Administration's goal is to accelerate United States 
                leadership in wireless communications and other 
                spectrum-based technologies and to unlock innovations 
                that benefit the American people, while ensuring 
                necessary access to spectrum for agencies and private-
                sector users, such as for scientific, public safety, 
                critical infrastructure, and national security uses, 
                now and into the future.

                The policy of my Administration is to ensure that 
                spectrum management, usage, and allocation decisions 
                are coordinated, consistent, and reflect the needs and 
                diverse missions of agencies and non-Federal users. 
                This memorandum reaffirms the policies and authorities 
                stated in Executive Order 12046 of March 27, 1978 
                (Relating to the Transfer of Telecommunications 
                Functions), regarding the duties and powers of the 
                Department of Commerce, and recognizes the role of the 
                National Telecommunications and Information 
                Administration (NTIA) within the Department of 
                Commerce, as laid out in its organic statute, as ``the 
                executive branch agency principally responsible for 
                advising the President on telecommunications and 
                information policies'' (47 U.S.C. 901(b)(6)). This 
                policy recognizes the discrete mission needs and 
                associated statutory oversight that agencies must 
                fulfill as they develop and implement operating 
                requirements that rely on spectrum.

                The Congress has charged NTIA and the Federal 
                Communications Commission (FCC) with jointly managing 
                the Nation's radio spectrum resources. The NTIA and FCC 
                perform their functions consistent with the August 1, 
                2022, Memorandum of Understanding (MOU) between the two 
                agencies; the Presidential Memorandum of January 27, 
                2021 (Restoring Trust in Government Through Scientific 
                Integrity and Evidence-Based Policymaking); the 
                November 23, 2022, MOU among NTIA, FCC, and the 
                Department of the Interior; and Executive Order 13175 
                of November 6, 2000 (Consultation

[[Page 80080]]

                and Coordination With Indian Tribal Governments), 
                honoring the Federal trust relationship with Tribal 
                Nations.

                Accordingly, I direct the following actions to 
                modernize the usage of spectrum in the United States:

                Sec. 2. Coordination. To ensure that the United States 
                manages its spectrum resources in a manner that 
                benefits all Americans, the executive branch must work 
                cooperatively to arrive at consensus positions 
                reflecting my Administration's spectrum policy goals.

                There is hereby established the Interagency Spectrum 
                Advisory Council (Council) to serve as the principal 
                interagency forum for heads of agencies to advise NTIA 
                on spectrum policy matters and to ensure that all 
                decisions made by NTIA take into consideration the 
                diverse missions of the Federal Government. Within 90 
                days of the date of this memorandum, NTIA shall publish 
                a charter for the Council. The Council shall be led by 
                the Assistant Secretary of Commerce for Communications 
                and Information and shall be composed of Assistant 
                Secretary-level representatives or their designees with 
                spectrum management oversight from agencies holding 
                Federal spectrum assignments or otherwise having 
                spectrum-related statutory authorities within their 
                respective agencies. The Executive Office of the 
                President shall participate in the work of the Council, 
                and NTIA shall request that FCC participate in the work 
                of the Council.

                The NTIA's Interdepartment Radio Advisory Committee 
                (IRAC) shall continue to advise NTIA with respect to 
                NTIA's statutory role to develop and execute policies, 
                programs, procedures, and technical criteria pertaining 
                to the allocation, management, and Federal use of the 
                electromagnetic spectrum.

                Sec. 3. National Spectrum Strategy. By December 31, 
                2023, the Secretary of Commerce, acting through NTIA, 
                shall develop a National Spectrum Strategy (Strategy), 
                and the Secretary shall submit it to the President, 
                through the Assistant to the President for National 
                Security Affairs, the Assistant to the President for 
                Economic Policy, and the Director of the Office of 
                Science and Technology Policy. The NTIA shall seek to 
                collaborate with FCC and coordinate with the Council in 
                the development of the Strategy, which shall include, 
                at a minimum:

                    (a) a roadmap to make spectrum resources available 
                to continue United States leadership in advanced 
                wireless technologies and services, which shall provide 
                a ``pipeline'' of spectrum bands to support commercial 
                innovation and agencies' needs now and into the future 
                by identifying at least 1500 megahertz for in-depth 
                study to determine suitability for repurposing, which 
                may include spectrum bands currently allocated for 
                Federal operations, non-Federal operations, or shared 
                Federal and non-Federal operations;
                    (b) data-driven processes for long-term spectrum 
                planning that increase transparency into current and 
                future Federal and non-Federal spectrum use; anticipate 
                and enable technological advances in order to 
                facilitate spectrum access; and fully account for 
                essential Federal missions, including national defense 
                and homeland security, safeguarding the national 
                airspace, securing the Nation's critical 
                infrastructure, climate monitoring and forecasting, and 
                other scientific endeavors;
                    (c) plans to optimize United States spectrum 
                management and use by considering different types of 
                spectrum governance models, including exclusive 
                licensing, unlicensed use, shared use, and combinations 
                of these approaches;
                    (d) plans for investing in and promoting the 
                development of emerging technological advancements in 
                spectrum management, including spectrum sharing and 
                improving understanding of electromagnetic spectrum 
                science; and
                    (e) recommendations for developing an enduring, 
                scalable mechanism for managing shared spectrum access 
                for the Federal Government, with the goal of increasing 
                the efficiency of spectrum use.

[[Page 80081]]

                Sec. 4. Implementation Plan. Within 120 days of the 
                submission of the Strategy, the Secretary of Commerce, 
                acting through NTIA, in coordination with the Council, 
                and after seeking to collaborate with FCC, shall 
                publish an Implementation Plan for the Strategy. The 
                Implementation Plan shall include a schedule for 
                detailed studies of the pipeline bands identified in 
                the Strategy to be completed within 2 years of the 
                submission of the Strategy or, in the case of proposals 
                by agencies to conduct studies under the Spectrum 
                Pipeline Act of 2015 (Public Law 114-74), within 2 
                years of the date of receipt of funding.

                Sec. 5. Responsibilities of the Department of Commerce 
                and NTIA. The Secretary of Commerce, acting through 
                NTIA, has ``[t]he responsibility to promote the best 
                possible and most efficient use of electromagnetic 
                spectrum resources across the Federal Government, 
                subject to and consistent with the needs and missions 
                of Federal agencies.'' (47 U.S.C. 902(b)(2)(U)). In 
                order to properly fulfill this responsibility, NTIA, 
                consistent with its ``authority . . . as the executive 
                branch agency principally responsible for advising the 
                President on telecommunications and information 
                policies,'' shall, in coordination with the Council and 
                the IRAC as appropriate, ensure that the views of the 
                executive branch on spectrum matters are properly 
                developed, documented, and, if necessary, presented to 
                FCC and, in appropriate circumstances, in coordination 
                with the Director of the Office of Management and 
                Budget, to the Congress, as required by statute (47 
                U.S.C. 901(b)(6), 902(b)(2)(J)). This duty shall extend 
                to all Federal spectrum matters, both where agencies 
                hold NTIA-issued frequency assignments and where non-
                Federal spectrum use may have a substantial impact on 
                agency missions.

                    (a) In undertaking these duties, NTIA shall:

(i) adhere to the terms of the August 1, 2022, MOU between NTIA and FCC and 
any successor arrangement, so long as the arrangement remains in effect;

(ii) solicit views of stakeholder agencies in a timely fashion and provide 
sufficient time and procedures for such agencies to present their views and 
supporting technical information to NTIA;

(iii) provide agencies with timely written feedback articulating why and 
how agency views will be incorporated into the position that NTIA 
communicates to FCC;

(iv) facilitate the presentation by agencies of classified or otherwise 
sensitive views to FCC;

(v) develop the position of the executive branch on spectrum-related 
issues, including any supporting technical and operational information to 
facilitate FCC decision-making, and provide that position to FCC; and

(vi) endeavor to provide such views and information within FCC's applicable 
timelines and request additional time when needed.

                    (b) In matters where NTIA and an agency or agencies 
                cannot reach a consensus on the views to be presented 
                to FCC, NTIA shall:

(i) notify FCC of the lack of consensus and anticipated next steps and 
timing to resolve it;

(ii) request the joint assistance of the Secretary of Commerce and the head 
of any agency objecting to NTIA's proposed submission to FCC to find a 
mutually agreeable resolution; and

(iii) keep FCC informed, as appropriate, regarding anticipated next steps 
and timing of resolution.

                    (c) If a resolution is not reached, NTIA shall 
                within 90 days submit, or the disputing agency or 
                agencies may submit, the disagreement to the Assistant 
                to the President for National Security Affairs and the 
                Assistant to the President for Economic Policy, who 
                shall, in consultation with the Director of the Office 
                of Science and Technology Policy and the National Space 
                Council, resolve the dispute through the interagency 
                process described in National Security Memorandum 2 of 
                February 4, 2021 (Renewing the

[[Page 80082]]

                National Security Council System), or the process 
                described in any successor Presidential directive. The 
                NTIA shall advise FCC on the executive branch position 
                following adjudication and decision.

                Sec. 6. Post-FCC Action Procedures. Since agencies are 
                directed to participate fully and actively in NTIA's 
                development of positions on spectrum matters, disputes 
                following FCC action should be rare. When FCC has acted 
                to make spectrum available for non-Federal use and an 
                agency believes that, for a reason unforeseen before 
                FCC action, the new use is causing or potentially will 
                cause harmful interference to existing Federal 
                operations or non-Federal operations that are regulated 
                by an agency, the following procedures shall be adhered 
                to:

                    (a) The complainant agency, no later than 45 days 
                after learning of the unforeseen risk of harmful 
                interference, shall formally request that NTIA address 
                the matter with FCC for an appropriate remedy, and in 
                that request shall:

(i) clearly indicate the manner in which the public interest will be 
implicated or harmed or an agency's mission will be adversely affected;

(ii) present evidence to NTIA that such new use is causing or potentially 
will cause harmful interference or potential harm to the public interest, 
including any technical or scientific data that supports that position; and

(iii) explain why the complainant agency cannot take steps to ensure 
mission continuity that are consistent with FCC's decision.

                    (b) If NTIA believes that the complainant agency 
                has produced sufficient evidence that the new use will 
                risk harmful interference that cannot be reasonably 
                mitigated without FCC action, it shall, within 60 days 
                of the complainant agency's request, address FCC under 
                established processes for seeking appropriate relief. 
                If NTIA does not believe that there is sufficient 
                evidence to seek relief from FCC, the complainant 
                agency may invoke the process set forth in sections 
                5(b) and 5(c) of this memorandum.
                    (c) Before any significant regulatory action 
                directly related to the spectrum subject to license is 
                taken by the complainant agency pursuant to its 
                statutory authorities, the regulatory action shall be 
                submitted to the Office of Information and Regulatory 
                Affairs (OIRA) within the Office of Management and 
                Budget, as required by sections 3(f) and 6(a)(3) of 
                Executive Order 12866 of September 30, 1993 (Regulatory 
                Planning and Review).

                Sec. 7. Other Responsibilities of Agencies. Consistent 
                with NTIA's statutory authorities and to ensure the 
                coordination and consistency called for in this 
                memorandum:

                    (a) Agencies shall expeditiously, and no later than 
                45 days subsequent to any NTIA request outside of the 
                time frames set by section IV(3) of the August 1, 2022, 
                MOU between NTIA and FCC, respond to and, to the extent 
                possible, share with NTIA any technical and operational 
                information needed to facilitate spectrum coordination 
                and policy development.
                    (b) Agencies shall furnish NTIA ``with such 
                information, support, and assistance, not inconsistent 
                with law, as it may require in the performance of its 
                functions,'' (47 U.S.C. 904(c)(2)), including 
                coordinating with NTIA on:

(i) all relevant information to be considered for filing with FCC; and

(ii) any significant regulatory actions to be taken by the agency pursuant 
to its statutory authorities directly relating to spectrum issues, prior to 
its submission to OIRA as required by Executive Order 12866.

                    (c) Agencies shall collaborate with NTIA to 
                facilitate long-term spectrum planning, including by 
                sharing information about their current spectrum use 
                and long-term spectrum needs as requested by NTIA.
                    (d) Agencies shall coordinate with NTIA prior to 
                carrying out any electromagnetic compatibility study or 
                testing plan that the agency seeks to be considered in 
                formulating the views of the executive branch regarding 
                spectrum regulatory matters. Coordination with NTIA 
                will ensure the use of

[[Page 80083]]

                consistent methods across the executive branch, 
                promoting reliable findings as well as evidence-based 
                decision-making. Nothing herein is intended to prevent 
                agencies from conducting spectrum-related studies for 
                internal purposes unrelated to formulating executive 
                branch views on spectrum regulatory matters. Agencies 
                are strongly encouraged to conduct spectrum-related 
                testing and research in cooperation with NTIA's 
                Institute for Telecommunication Sciences.
                    (e) Agencies shall favor the development and 
                procurement of systems that enable coexistence with 
                other spectrum users. Accordingly, agencies shall 
                ensure that their acquisition processes properly 
                consider spectrum coexistence and access prior to 
                milestone investment decisions. The NTIA shall, in 
                turn, improve its criteria and processes for 
                certification regarding spectrum availability to 
                facilitate spectrum access.

                Sec. 8. Spectrum Management Principles and Methods. By 
                May 14, 2025, the Secretary of Commerce, working in 
                partnership with the Council, shall publish a report 
                identifying spectrum management principles and methods 
                that will guide the Federal Government in spectrum 
                studies and science. The report shall identify the 
                coordination guidelines for spectrum studies and 
                identify processes for determining types of studies, 
                criteria, assumptions, and timelines that will be 
                acceptable in decision-making involving the use of 
                Federal spectrum and the use of non-Federal spectrum by 
                agencies.

                Sec. 9. Revocation. The Presidential Memorandum of 
                October 25, 2018 (Developing a Sustainable Spectrum 
                Strategy for America's Future), is hereby revoked.

                Sec. 10. Protection of Information. Nothing in this 
                memorandum shall be construed to require the disclosure 
                of classified information, law enforcement sensitive 
                information, or other information that must be 
                protected in the interests of national security.

                Sec. 11. General Provisions. (a) Nothing in this 
                memorandum shall be construed to impair or otherwise 
                affect:

(i) the authority granted by law to an executive department or agency, or 
the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget 
relating to budgetary, administrative, or legislative proposals.

                    (b) This memorandum shall be implemented consistent 
                with applicable law and subject to the availability of 
                appropriations.
                    (c) This memorandum is not intended to, and does 
                not, create any right or benefit, substantive or 
                procedural, enforceable at law or in equity by any 
                party against the United States, its departments, 
                agencies, or entities, its officers, employees, or 
                agents, or any other person.

[[Page 80084]]

                    (d) The Secretary of Commerce is authorized and 
                directed to publish this memorandum in the Federal 
                Register.
                <GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
                
                    (Presidential Sig.)

                THE WHITE HOUSE,

                    Washington, November 13, 2023

[FR Doc. 2023-25627
Filed 11-16-23; 8:45 am]
Billing code 3510-07-P