Colorado's Plan Provides Useful BEAD Insights

 In today's Policyband, Ted Hearn provides some figures regarding Colorado's revised BEAD proposal that are useful in suggesting key policy insights.

This from Policyband: 

"Amazon’s Project Kuiper and SpaceX’s Starlink were tentatively awarded about half of the roughly 90,000 homes and buildings with either no service or speeds below 100/20 megabits per second. Fiber providers captured 48% of the locations, while fixed wireless accounted for 2%. Colorado awarded $25.3 million to Project Kuiper to serve 42,252 locations – about 47% of all locations – at about $600 per location, while Starlink received $9.1 million to serve 5,400 locations – about 6% of all locations – at about $1,700 per location."

 

And then here's the kicker:

 

"Because fiber deployment come with high per-locations costs, Colorado awarded 91% of its BEAD funds to fiber Internet Service Providers (ISPs)."

                                                     

The cost difference between providing broadband service via satellite and fiber is significant. Under the Biden administration BEAD plan, Colorado was to receive about $826 million in federal funds, whereas under the reworked Trump administration guidelines, Colorado said it would connect all eligible locations for a cost of $409 million. The $417 million in savings to the governments is not peanuts.

 

So, the Trump administration's abandonment of Biden's "fiber at all costs" policy makes sense, including for America's taxpayers. And it's consistent with Congress's intent in the Infrastructure Act that the BEAD program be technology-neutral.

 

Of course, it matters whether the satellite providers can actually deliver broadband service at the specified 100/20 megabits per second requirement and whether Amazon's Project Kuiper can actually get its satellites up and running in time to meet its commitments in this regard. Apparently, Colorado thinks both contingencies can be met or it would have proposed a different plan.

 

And I have a lot of confidence that new NTIA Administrator Arielle Roth, who has been on top of observing implementation of the BEAD program for years as the key telecom aide to Senator Ted Cruz, will ensure that NTIA administers the program efficiently and effectively. 

 

BTW, if you are not subscribing to Policyband, you should. Always useful information intelligently presented – and often with a bit of wit.

President Trump Revokes President Biden's Mislabeled "Promoting Competition" EO

On August 13 President Trump issued an Executive Order revoking President Biden's Executive Order 14036 issued in 2021. EO 14036 was styled "Promoting Competition in the American Economy." 

Naming EO 14036 "Promoting Competition in the American Economy" was real misnomer in the same way that President Biden's "Inflation Reduction Act of 2022" was misleadingly labeled. That law did a whole bunch of things, but reducing inflation was not one of them. Instead, it increased inflation. Likewise, the "Promoting Competition" executive order encouraged adoption of a lot of unsound policies by various agencies. The overall effect was not to increase competition and make markets freer but to increase government intervention in key segments of the U. S. economy.

 

With respect to communications law and policy, the Biden EO "encouraged" the FCC to adopt "net neutrality" rules to convert broadband Internet service providers into public utilities. Additionally, it "encouraged" the agency to prohibit early termination fees; to require broadband providers to regularly report broadband price and subscription rates to the agency; and to prevent landlords and cable and Internet service providers from inhibiting tenants' choices among providers.

 

                                                  

Not surprisingly, the FCC under Jessica Rosenworcel's leadership proceeded to implement, or try to implement, all of the actions it was "encouraged" to implement. Most of these sugar-coated government interventions did not contribute to enhancing competition or benefitting consumers.

 

So, I'm pleased President Trump has revoked the Biden's Executive Order 14036 which provided a lot of the impetus for many of his administration's regulatory crusades.

 

That said, I have no hesitancy in admitting that I wish President Trump would resist his not-so-occasional urges to "encourage" government intervention in the free marketplace when it strikes his fancy. Could he issue an executive order that would restrain himself?

Two Victories for Constructing Cell Tower Infrastructure

 As reported in Law360 [subscription required] on August 13, both the Fourth and the Eleventh Circuits issued decisions on the same day affirming lower court actions that had rejected local governments denial of permission to cell tower companies to build out cell tower infrastructure. There continue to be attempts by some municipalities and counties to improperly forestall cell tower projects, hindering the deployment of a robust 5G networks. So these two new appeals court decisions are welcome, especially coming on the day.

In one case, the Fourth Circuit said that Culpeper County, Virginia, officials let the 150-day clock run out without approving or denying the application, and that, under federal law, that was sufficient for it to be "deemed granted." In other words, the locality can simply sit on the application and "run out the clock."

                                               

 

In the other case, the Eleventh Circuit determined that Brevard County, Florida, couldn't deny a conditional-use permit to build a cell tower for "solely aesthetic concerns." The appeals court agreed with a lower court's finding that those concerns about the tower intended to enhance service for T-Mobile weren't supported by substantial evidence, adding that "we have consistently held that generalized aesthetic objections, standing alone, cannot justify denial of an otherwise qualified application." Therefore, according to the court, " the district court correctly concluded that the county's factual support for its decision fell short of the substantial evidence requirement."

 

As the Law360 report concludes: "The Telecommunications Act of 1996 is the law that most cell tower disputes are filed under, and it forbids localities from regulating cell towers in a way that prohibits telecom services. Local governments also can't deny permits based on environmental concerns, which courts have generally interpreted to include health concerns, and applications are deemed granted if municipalities leave them untouched for long enough."

James Byrnes, Meet Brendan Carr!

 You may not know the name James Byrnes! But, for me, he comes to mind. Mr. Byrnes once declared: The nearest approach to immortality on Earth is a government bureau." 

James Byrnes served as a governor of South Carolina, United States Senator, a Supreme Court Justice, and U.S. Secretary of State, aside from other government positions. Yes, you read that right!

 

So, by virtue of his experience, Mr. Byrnes knew a thing or two about the difficulty of shrinking the size of government.

 

Admittedly FCC Chairman Brendan Carr hasn't served in as many high-level government positions as James Byrnes. No one else has. But Carr has served in key FCC positions long enough – as General Counsel, Commissioner, and now Chairman – to understand that there are plenty of legacy regulations remaining in the FCC's rule book that are no longer necessary. Not only are they no longer necessary, but many of them, considering the dramatically changed telecommunications and media environment since they were adopted, impose costs and burdens that affirmatively harm consumers and competition.

 

I have criticized a few actions taken by Chairman Carr, for example, the use of the agency's transaction review process to impose extraneous conditions not unique to the transaction in approving the Skydance – Paramount CBS transaction, and the imposition of what appears to be an unwarranted forfeiture on Telnyx without fair notice of what standard it was expected to meet.

                                                                 

                                                                          

But, on the whole, I applaud the way that Chairman Carr is forging ahead in the DELETE, DELETE, DELETEproceeding and others to remove bunches of regulations that should no longer exist and, frankly, should have been eliminated years ago. For example, yesterday the Commission proposed to eliminate nearly 100 outdated, no longer necessary, broadcast rules using the Direct Final Rule process. The public will have 10 days after Federal Register publication to offer comments regarding any of the proposed rules. Absent the submission of a "significant adversecomment," the proposed elimination of the rule will occur. If the Commission determines that a "significant adverse comment" has been submitted, then that particular rule will go through the normal notice and comment process.

 

In a 1995 Recommendation, The Administrative Conference of the United States (ACUS), of which I have served as a Public Member and now Senior Fellow, suggested that agencies use the Direct Final Rule process to more quickly eliminate unnecessary regulations "in all cases where the ‘unnecessary’ prong of the good cause exemption is available…." On many occasions since then, to little or no avail, I have urged the FCC to consider employing the process.

 

So, I heartily commend Brendan Carr for taking the initiative to do so now. There will still be an opportunity for public comment when the Direct Final Rule process is employed, and, if experience proves there is a need, there can be adjustments to ensure that non-frivolous substantive objections are properly considered.

 

Shortly before becoming FCC Chairman, Ajit Pai, speaking at a Free State Foundation event, declared: “We need to fire up the weed whacker and remove those rules that are holding back investment, innovation and job creation.”Considering all the obstacles, including the time and energy expended to reverse the then-existing mandate regulating Internet service providers as public utilities, Chairman Pai made a good start. But now Chairman Carr has truly fired up the metaphorical "weed whacker" in a way that looks to make meaningful progress in the cause of eliminating costly, burdensome, unnecessary regulations.

 

He may not have eliminated a government bureau. But I suspect that James Byrnes would give Brendan Carr credit for what he's doing on the deregulation front.

Roth's NTIA Takes Early Aim at Rate Regulation

On July 30, 2025, Arielle Roth officially assumed the role of Assistant Secretary of Commerce for Communications and Information, a position that includes serving as Administrator of the National Telecommunications and Information Administration (NTIA). Days later, NTIA released updated Frequently Asked Questions (FAQs) regarding the $42.45 billion Broadband Equity, Access, and Deployment (BEAD) Program. Notably, the revised FAQs underscore a significant policy shift from the Biden Administration's approach, one that aligns with Congress's explicit prohibition against broadband rate regulation.

This latest version of the FAQs builds on the BEAD Restructuring Policy Notice (BEAD RPN) that was released in early June. The BEAD RPN made numerous substantive changes to the Notice of Funding Opportunity (NOFO) that the Biden Administration NTIA issued in May 2022, including several addressing the low-cost service option (LCSO) requirement for BEAD Program grant recipients.

Under the NOFO, NTIA imposed prescriptive price and service terms for the LCSO. These included effective mandates on the maximum monthly rate, restrictions that, in substance, amounted to prohibited rate regulation.

The RPN eliminated those requirements: "BEAD subgrantees must still comply with the statutory provision to offer at least one LCSO, but NTIA hereby prohibits [states] from explicitly or implicitly setting the LCSO rate a subgrantee must offer." The updated FAQ expounds upon this point:

The IIJA prohibits NTIA or the Assistant Secretary from engaging in rate regulation. Because the Assistant Secretary must approve the LCSO in the Final Proposal, the rate contained may not be the result of rate regulation. The RPN addressed this fundamental flaw in the BEAD NOFO. The RPN eliminated BEAD NOFO requirements dictating price and other terms for the required low-cost service option.

In addition, the FAQ notes that, "[p]er the RPN, states may not apply state laws to reimpose LCSO requirements removed by the RPN."

This, of course, is a sharp departure from the Biden Administration's deeply flawed approach. As I described in a February 2024 Perspectives from FSF Scholars, "Virginia Flags NTIA's Impermissible Pressure to Regulate Broadband Rates," NTIA sought to compel Virginia to "specify an exact price or formula" for the LCSO.

That demand directly conflicted with Section 60102(h)(5)(D) of the Infrastructure Investment and Jobs Act, which states that "[n]othing in this title may be construed to authorize the Assistant Secretary or the National Telecommunications and Information Administration to regulate the rates charged for broadband service."

By making explicit that neither NTIA nor a state may dictate broadband rates, the RPN and the updated FAQs realign BEAD Program implementation with the letter of the law. In doing so, they empower grant recipients to develop sustainable offerings. They also foster competition, innovation, and continued private investment (to the tune of $2.2 trillion and counting).

Released in the first few days of Roth's tenure as NTIA Administrator, these updated FAQs are a welcome indicator that, going forward, the BEAD Program will hew far more closely to congressional intent.

The "Block BEARD Act" Deserves Speedy Consideration

It's pretty rare these days to have legislation drafted in Congress on bipartisan basis that attempts to address a serious national problem in a meaningful way. Sure, bipartisanship may still occur in  naming post offices or designating a new national Peanut Butter Day or Green Pea Day, but not much else.

 

But Senators Thom Tillis (R-NC), Chris Coons (D-DE), Marsha Blackburn (R-TN), and Adam Schiff (D-CA) released a discussion draft of the Block Bad Electronic Art and Recording Distributors (Block BEARD) Act of 2025. The legislation, if adopted, would allow copyright owners who have had their property stolen to seek an order in federal court to block dedicated foreign online piracy operations from making that stolen content available to American households.

 

Foreign websites pirating American movies, TV shows, art, and books steal tens of billions of dollars from the U.S. economy each year. This theft of Americans' intellectual property enabled by foreign websites costs the U.S. creative community hundreds of thousands of jobs. Consumers are harmed through the malware, phishing, identity theft, and financial fraud perpetuated online by the international pirates.

 

Here is a short summary of what the Discussion Draft intends to accomplish copied from Senator Tillis's press release:

 

The Block BEARD Act would empower copyright owners to seek U.S. federal court orders against foreign websites dedicated to digital piracy, preventing them from making stolen content accessible to American households. To obtain relief, copyright holders must present evidence of specific harm and demonstrate the criminal nature of the targeted site. Courts could then direct internet service providers block access to the identified sites, while granting those providers immunity from liability, including for claims related to the petitioner’s actions.  The legislation includes strong public interest safeguards to protect free expression, due process, and legitimate online services operating in compliance with U.S. law. This targeted legal tool mirrors successful approaches used in over 50 democratic countries to curb foreign piracy operations that undermine creative industry jobs and expose users to malware, identity theft, and fraud.

 

While it's always possible the draft bill might be improved as it goes through the legislative process, the draft appears to strike a proper balance in addressing what is a very serious problem of foreign theft of the intellectual property of the U.S. creative community while safeguarding the legitimate interests of others, including online providers.

 

Senator Tillis and his Senate colleagues should be commended, and the Block BEARD Act deserves speedy consideration.

 

What Goes Around Comes Around

A quarter century ago I published a column in Legal Times titled, "Any Volunteers?" The editors added this subtitle: "The FCC unfairly regulates 'by condition' when it extracts concessions from merging telecom companies."

 

In the column, I criticized what was then becoming an increasingly frequent practice of extracting so-called "voluntary" concessions from applicants seeking to obtain FCC approval for their pending transactions involving mergers, acquisitions, or the like. Because the FCC reviews proposed transactions – whether the applicants hold spectrum licenses or common carrier authorizations – under the amorphous "public interest" standard, FCC commissioners found it easy to justify the extraction of conditions that, at least in their minds, comported with the public interest.

 

As I detailed in the column in 2000, often the voluntary, usually "midnight" concessions did not involve matters unique to the applicants before the Commission. And the conditions imposed did not involve compliance with specific then-existing requirements of the Communications Act or of Commission rules. The justification for imposing them was that they somehow advanced the public interest. The Legal Times column contains many examples of extraneous conditions imposed to obtain transaction approvals during the Clinton FCC period.

 

Regarding what I called "regulation by condition," I said: "The bottom line is that this process unfairly singles out merger applicants for regulation that, if justified at all, should be applied on an industrywide basis." And I urged Congress to reform the FCC's transaction review process.

 

In the ensuing 25 years, on many occasions I have bemoaned the ongoing practice – used most often, but not exclusively, by Democrat-controlled commissions – to extract extraneous "voluntary" commitments from supplicants seeking approval of proposed transactions. Again, by extraneous I mean the imposition of conditions that are not transaction-specific or uniquely related to the applicants as opposed to a generic group of market participants.

 

In both 2011 and 2013, my testimony before the House Energy and Commerce Committee urged reform of the FCC's transaction review process to prohibit the agency from imposing any condition not narrowly tailored to remedy a unique transaction-specific harm.

 

As a matter of principle, my position regarding the FCC's handling of transaction reviews and the need for reform of the process has been consistent throughout.

 

Which brings me to the FCC's approval of Skydance's acquisition of Paramount CBS, including its broadcast television stations. In approving the transaction, the FCC's Republican majority imposed an anti-DEI condition and an ""unbiased journalism" condition based on commitments offered by Skydance. Here's the FCC's description of both conditions:

 

"Commitment to Unbiased Journalism. Skydance has made written commitments to ensuring that the new company’s array of news and entertainment programming will embody a diversity of viewpoints across the political and ideological spectrum and that CBS’s reporting will be fair,

unbiased, and fact-based. To promote transparency and increased accountability, Skydance commits, for a period of at least two years, to have in place an ombudsman who will report to the President of New Paramount and evaluate complaints of bias.

 

Ensures that Discriminatory DEI Policies End. Skydance, which has no DEI programs in place today, has committed that it will not establish any such initiatives at the new company and confirms that New Paramount will also be committed to equal opportunity employment and nondiscrimination. This will ensure that the combined business will enact policies and practices consistent with the law and the public interest."

 

At this point in our nation's history, I generally oppose government-imposed or government-cajoled DEI programs because, all too often, in practical effect and however couched, they turn into coercive mandates that lead to forms of invidious discrimination. In other words, in effect, they deny equal treatment to those individuals who happen to be outside of the groups favored by the DEI programs and who did not engage in perpetuating any form of discrimination themselves. And, like many, I am disturbed by the demonstrable left-leaning political bias that still largely prevails in many of what we called "mainstream" media outlets. So, philosophically, I am disposed to be sympathetic to the concerns that give rise to the FCC's anti-DEI and "unbiased journalism" conditions.

 

Nevertheless, as a matter of principle, I dislike seeing the FCC's transaction review process continue to be used to impose "voluntary" concessions not uniquely related to the specific transaction – as it was in this instance. To be sure, the "public interest" standard may be sufficiently indeterminate for today's Republican Commission majority to justify imposition of the anti-DEI and anti-political bias conditions. Certainly, under the public interest rubric, Democrat commissioners, historically, have resorted to the extraction of "voluntary" concessions leading to imposition of concededly extraneous conditions much more frequently than have their Republican colleagues. If you're not familiar with these instances, you can start with my "Any Volunteers?" column and go from there.

 

So, I could say "what goes around, comes around." Or what's "good for the goose is good for the gander." Or some such. There's lots of truth in those old sayings, and there's part of me that wants to leave it at that. This is especially so because there's rarely, if ever, any acknowledgement by those now decrying the FCC's handling of the Skydance transaction that "their side" has abused the review process in the past.

 

But I prefer not to leave it at that. I prefer to take leave offering the same consistent message I have offered for a quarter-century: Congress should reform the FCC's transaction review process along the lines I've advocated. That reform starts by prohibiting the agency from imposing any condition not narrowly tailored to remedy a unique transaction-specific harm.