Regarding the WiFi Hotspot CRA, Focus on the Law

By Randolph May

By and large, the opponents' reactions to Senate passage of the Congressional Review Act resolution to overturn the FCC's rule that purported to expand COVID-era funding for WiFi hotspots are misguided – and they illustrate what's wrong with much left-leaning advocacy. The reactions focus on the supposed ill-effects, as a matter of policy, of curtailing funding for WiFi hotspots outside of the E-Rate program's authorization of "classrooms" and "libraries." The opponents ignore what ought to be the most important point: The FCC's rule overturned by the CRA resolution exceeded the agency's authority.

Typical of the reaction is the statement issued by FCC Commissioner Anna Gomez. She says: “Sadly, this vote will only deepen that divide by stripping away one of the few remaining tools available to schools and libraries to help students and seniors access the internet—whether to do their homework, apply for jobs, or consult with a doctor." I don't necessarily agree with her conclusion, or similar sentiments she expresses regarding the extent of what she sees as the extent of the "digital divide." But those are matters of policy that are proper subjects for discussion and debate.

But the proper place for resolution of those policy debates regarding the WiFi hotspots extension funding is in Congress. There's simply not a credible argument that, once the COVID-era emergency WiFi funding had expired, the FCC could simply undertake to rewrite the English language by interpreting the statutory terms "classrooms" and "libraries" to include any remote location on the same planet. That's a linguistic stretch way too far.

Of course, this doesn't mean that Congress cannot – and should not – authorize funding along the lines that Commissioner Gomez and her allied CRA opponents wish to see. But it is does mean that the Senate did the right thing in adopting the CRA. And it does mean that the House should follow suit.  

U.S. Trade Rep Report ID's Nations Needing Stronger IP Protections

 On April 29, the Office of the U.S. Trade Representative released its 2025 Special 301 Report. Based on an annual review of the state of intellectual property (IP) protection and enforcement in foreign nations, the 2025 Special 301 Report identifies "law, policies, and practices that fail to provide adequate and effective IP protection and enforcement for U.S. inventors, creators, brands, manufacturers, and service providers, which, in turn, harm American workers whose livelihoods are tied to America’s innovation- and creativity-driven sectors." 

Mexico continues to suffer from very high rates of copyright piracy, including through online streaming, peer-to-peer file sharing, direct downloads, stream-ripping, illicit streaming devices and apps, circumvention devices for video games and consoles, and physical media. As broadband access increases, online piracy has been increasing, and stakeholders report that Mexico has one of the highest rates of music and video game piracy in the world. A barrier to effective criminal copyright enforcement is the requirement to prove a direct economic benefit to the infringer and the submission of a legitimate physical copy of the pirated content, even if the pirated copies were distributed online. The 'direct economic benefit' requirement also prevents effective criminal enforcement against not-for-profit acts of piracy, such as interrupting and distributing cable and satellite signals. According to stakeholders, civil copyright enforcement is difficult and expensive due to the lack of secondary liability for Internet service providers (ISPs), no pre-established damages, no lost profit recovery, no recovery of attorney fees, and lengthy court cases.

The 2025 Special 301 Report identifies foreign countries that the Trump Administration plans to engage during the year ahead to improve legal protections for Americans' copyrighted property and other IP overseas. Hopefully, those efforts will bear fruit and better safeguard the value of American-owned creative works. 

 

Focusing here on copyrights, areas of concern covered in the report include, "challenges with border and criminal enforcement against counterfeits, including in the online environment," "high levels of online and broadcast piracy, including through illicit streaming devices," and "systemic issues regarding IP protection and enforcement, as well as market access."

 

According to the report, "during the review period, countries such as Argentina, Bulgaria, Canada, Chile, China, Colombia, Ecuador, Guatemala, India, Mexico, the Netherlands, Pakistan, Poland, Romania, Russia, Switzerland, Thailand, and Vietnam had high levels of online piracy and lacked effective enforcement." It observed that "stream-ripping was reportedly popular in countries such as Canada, Chile, India, Mexico, Nigeria, Russia, and Switzerland."

 

Furthermore: "Stakeholders continue to report notable levels of piracy through ISDs and illicit IPTV apps, including in Algeria, Argentina, Brazil, Canada, Chile, China, Guatemala, Hong Kong, India, Indonesia, Jordan, Mexico, Morocco, Singapore, Switzerland, Taiwan, Thailand, the United Arab Emirates, and Vietnam. China, in particular, is a manufacturing hub for these devices."

 

Also, "[t]he proliferation of 'camcords' – that is high-quality unlawful video recordings of new movies shown in theaters – continues to be a significant trade problem" in Russia, China, and India. The report stated that some foreign countries need to update their laws to deter such conduct. Apparently, "the requirement in some countries that a law enforcement officer must observe a person camcording and then prove that the person is circulating the unlawfully recorded movie before intervening often precludes effective enforcement." The report added that countries such as Argentina, Brazil, Ecuador, and Russia do not effectively criminalize unauthorized camcording in theaters. 

 

Along with ongoing challenges and concerns regarding online copyright piracy in countries such as China and Russia, the report also spotlighted Mexico: 

Mexico continues to suffer from very high rates of copyright piracy, including through online streaming, peer-to-peer file sharing, direct downloads, stream-ripping, illicit streaming devices and apps, circumvention devices for video games and consoles, and physical media. As broadband access increases, online piracy has been increasing, and stakeholders report that Mexico has one of the highest rates of music and video game piracy in the world. A barrier to effective criminal copyright enforcement is the requirement to prove a direct economic benefit to the infringer and the submission of a legitimate physical copy of the pirated content, even if the pirated copies were distributed online. The 'direct economic benefit' requirement also prevents effective criminal enforcement against not-for-profit acts of piracy, such as interrupting and distributing cable and satellite signals. According to stakeholders, civil copyright enforcement is difficult and expensive due to the lack of secondary liability for Internet service providers (ISPs), no pre-established damages, no lost profit recovery, no recovery of attorney fees, and lengthy court cases.

In the year ahead, we will see if the Trump Administration is successful in prompting improvements in copyright protections for Americans in those nations identified by the 2025 Special 301 Report.

Decision Time for T-Mobile/UScellular Transaction

On May 2, UScellular announced that it lost about 38,000 wireless post-paid subscribers in the first quarter of 2025 – double the subscriber losses it incurred in the last quarter of 2024. Right now, UScellular is a party to a proposed transaction to transfer about 30% of its spectrum licenses as well as its wireless operations and subscribers to T-Mobile. It is not unexpected for a firm selling assets (or merging with a larger firm) to experience hardships in the marketplace during the pendency of transaction review proceedings by government agencies such as the FCC. Yet such an occurrence is a compelling reason for the Commission to act quickly in completing its review of the T-Mobile/UScellular transaction. 

Today, May 6, is day 188 on the FCC's informal 180-day "shot clock" for reviewing the T-Mobile/UScellular transaction. In other words, the Commission already has exceeded the period that the agency has established as its review timeline goal. Moreover, the Justice Department-led Team Telecom review of T-Mobile/UScellular – with a standard review period of up to 120 days – didn't even kick off until April 10. Thus, further review proceeding delays by both the FCC and Team Telecom threaten to damage UScellular by keeping it in regulatory limbo. Both reviews must be brought to a speedy conclusion.

As explained in comments filed in January 2025 by the Free State Foundation in January – and encapsulated and a March 31 blog post by Senior Fellow Andrew Long – the T-Mobile/UScellular transaction appears to be both pro-competitive and pro-consumer. The record in the proceeding strongly indicates wireless consumers, including existing UScellular subscribers, would benefit from the approval of the transaction. Also, arguments raised in the proceeding by parties opposing T-Mobile/UScellular all but entirely involve matters that are extraneous to the deal. 

 

Moreover, at a surface level, it is highly unlikely that T-Mobile's acquisition of commercial spectrum licenses, wireless operations, and subscribers would negatively impact U.S. national security. Certainly, no lengthy Team Telecom review should be needed to reach a conclusion. 

 

The fact that the Biden Administration moved slowly at the commencement of the T Mobile/UScellular review proceeding is all the more reason for the Trump Administration to move with dispatch in considering the transaction. 

TMT with Mike O'Rielly - Ep 21: International Communications

Episode 21 of "TMT with Mike O'Rielly," a videocast featuring former FCC Commissioner and Adjunct Senior Fellow at the Free State Foundation Michael O'Rielly, was released on May 2. In this episode, titled "International Communications Procedures and Policies," Mr. O'Rielly has a conversation with guest David A. Gross, Partner at Wiley Rein and a former Ambassador when serving as U.S. Coordinator for International Communications and Information Policy, U.S. Department of State. Their conversation includes topics such as spectrum coordination in the U.S. global spectrum harmonization, and the World Radiocommunication Congress (WRC). Streaming video of the episode is now available: 

Forget Dismissal of CPB's Directors, Just End the Government Subsidies

By Randolph May

President Trump is attempting to fire three of the five members of the Corporation for Public Broadcasting's board of directors. Congress established CPB as a non-profit corporation "which will not be an agency or establishment of the United States Government." CPB is challenging the attempted dismissal of the directors in court.

CPB may be a private corporation, but it was created by the government, and it's funded by the government. And its directors are appointed by the president and subject to Senate confirmation. So, whether the president may dismiss its directors at will presents an interesting question, obviously more difficult than that presented by the president's authority to fire the heads of executive branch agencies.

But amidst the current controversy regarding whether, in this age of media abundance, government funding for public broadcasting should be continued, little attention has been paid to the provision in the Public Broadcasting Act of 1967, under which CPB was created, that declares that the Corporation shall facilitate programming "obtained from diverse sources" and "with strict adherence to objectivity and balance in all programs or series of programs of a controversial nature."

In evaluating whether CPB directors should be retained or dismissed, a relevant consideration should be the extent to which they have made any efforts to ensure compliance with the "objectivity and balance" requirement in the programming CPB facilitates. The statute put it on their "job sheet," so to speak.

Considering the long-standing pronounced leftist tilt of the programming of PBS and NPR, the recipients of CPB's government funds, I'd say that the directors – maybe many of them from all political stripes – haven't done a very good job in overseeing compliance with the "objectivity and balance" stricture.

So, a question more fundamental than whether the president has authority to dismiss CPB's directors is whether, in this present age of media abundance with outlets catering to all conceivable audiences and interests, taxpayers should continue to be required to subsidize public broadcasting. As I explained in this op-ed a short time ago: "It's Past Time to End Public Broadcasting Subsidies." 

TAKE IT DOWN Act Passed by Congress, Heads to President's Desk

On April 29, the U.S. House of Representatives passed, by a 409-2 vote, the Tools to Address Known Exploitation by Immobilizing Technological Deepfakes on Websites and Networks Act or the "TAKE IT DOWN Act" (S. 146). The bill, which passed by unanimous voice vote in the Senate on February 13, now goes to President Donald Trump's desk for signature. 

As described in a January 16 press release by the Senate and House bills' sponsors, the TAKE IT DOWN Act “makes it unlawful for a person to knowingly publish [non-consensual intimate imagery (NCII)] on social media and other online platforms. NCII is defined to include realistic, computer-generated pornographic images and videos ["deep forgeries"] that depict identifiable, real people." The bill has separate provisions and corresponding criminal penalties applicable to minors and adults, and it specifies that a victim consenting to the creation of an authentic image does not mean that the victim has consented to its publication.

 

Additionally, the TAKE IT DOWN Act includes a notice-and-takedown provision that requires social media and other public websites or internet services to establish procedures for the removal of NCII in response to a valid request from a victim, within 48 hours. Under the bill, websites also are required to make reasonable efforts to remove copies of the unauthorized images. Websites that make good faith efforts to remove NCII or disable access to it receive immunity from legal claims relating to such removal or disabled access. However, a website’s failure to comply with the notice-and-takedown requirements constitutes an unfair or deceptive act or practice under the Federal Trade Commission Act. Under the TAKE IT DOW ACT, the FTC has authority to enforce the notice-and-takedown requirements and impose penalties for non-compliance. 

 

The TAKE IT DOWN Act appears to be a commonsense measure, carefully written, and reasonably necessary to address a serious problem that is nationwide in scope. President Donald Trump is expected to sign the bill into law. Credit and congratulations are due to the bill's supporters and its sponsors.

 

The TAKE IT DOWN Act (S.146) is sponsored by Senators Ted Cruz and Amy Klobuchar. Reps. Maria Elvira Salazar and Madeleine Dean are sponsors of the House companion bill (H.R.633). Senator Cruz, who is Chairman of the Senate Commerce, Science, and Transportation Committee, talked about the TAKE IT DOWN Act during his keynote address at the Free State Foundation's Seventeenth Annual Policy Conference in Washington D.C. on March 25, 2025: 

NO FAKES Act to Combat "Deepfakes" is Reintroduced in Congress

On April 11, the "Nurture Originals, Foster Art, and Keep Entertainment Safe Act of 2025" or "NO FAKES Act" was re-introduced in the U.S. House of Representatives (H.R. 2794) and Senate (S. 1367). The House bill is sponsored by Rep. Maria Elvira Salazar and the Senate bill is sponsored by Sen. Christopher Coons. The NO FAKES Act would bolster individuals' intellectual property rights in their likenesses and voices by recognizing a private right of action against unauthorized and harmful "deepfakes." The bill has bipartisan backing as well as the endorsement of a cross-section of the creative and tech industries. The NO FAKES Act is strong on the merits and the 119th Congress should give it due consideration. 

 

Although generative AI technologies offer potential benefits, they also may be abused. Public displays and dissemination of "deepfake" songs misappropriate the value of recording artists’ voices, damaging the artists economically. Also, generative artificial intelligence (AI) tools and services on the Internet allow users to create "deepfake" explicit pictures and videos of individuals.

 

The NO FAKES Act would address those "deepfake" dangers in a targeted way by establishing a national uniform baseline of legal protection for an individual’s likeness and voice from unauthorized digital replicas. If passed by the 119th Congress and signed into law by President Donald Trump, the Act would make civilly liable anyone who knowingly produces a digital replica without the consent of the rights owner. It also would make civilly liable anyone who knowingly publishes, reproduces, displays, distributes, transmits, or makes the digital replica available to the public without the rights owner's consent. Persons harmed under the Act would have a right to seek statutory or actual damages, recovery of costs and attorneys’ fees, and injunctive relief. 

 

Recognizing the potential benefits of authorized digital replicas, the NO FAKES Act provides that individuals would have the right to license their personas for digital replication by third parties. Additionally, the Act is carefully written to address abuses and it includes safeguards for First Amendment-protected free speech and expression using generative AI tech. It bears emphasis that the NO FAKES Act is about private law – personal rights and intellectual property rights; it is not a federal criminal law bill.

 

A more detailed review of the same bill, previously introduced in the 118th Congress, is provided in my August 2024 Perspectives from FSF Scholars, "The 'NO FAKES Act' Would Protect Americans' Rights Against Harmful Digital Replicas."

Public Safety Served by Enterprise Communications Networks, Not Public Utility Regulation

On March 31, AT&T and the FirstNet Authority announced that total connections to the FirstNet nationwide public safety broadband network increased to 7.1 million across 30,000 law enforcement and first responder agencies during the first quarter of 2025. FirstNet was constructed and is operated by AT&T, and it is overseen by FirstNet Authority, an agency in the NTIA.

As explained in my February 2024 blog post, "FirstNet's Public Safety Communications Network Continues to Grow,"widespread adoption by law enforcement and first responder agencies of FirstNet – as well as competing enterprise networks, such as VerizonFrontline and T-Mobile's T-Priority – undermines the Biden FCC's public safety rationale for its now-vacated public utility regulation of broadband Internet access services. 

 

In the Securing and Safeguarding the Open Internet Order (2024), the Commission officially rebranded public utility regulation as a public safety measure. Public utility regulation has a long history. However, the idea that public utility regulation was vital to public safety and national security appears to have been entirely unknown until late 2023, when the Biden FCC launched its efforts to impose such regulation on high-speed broadband Internet services under Title II of the Communications Act. What a coincidence!

 

The Securing and Safeguarding the Open Internet Order was vacated by the U.S. Court of Appeals for the Sixth Circuit on January 2 of this year. In MCP No. 185 (2025), the court concluded that broadband Internet services are best understood as lightly regulated "information services" under Title I of the Act and not "telecommunications services" under Title II.

 

On April 28, the Free State Foundation filed reply comments in the FCC's Delete, Delete, Delete proceeding. In those reply comments, FSF President Randolph May and I recommended that the newly constituted FCC, under Chairman Brendan Carr's leadership, delete the now-vacated public utility rules from the Code of Federal Regulations. FSF's reply comments also recommend that the Commission delete many other outdated, harmful, and unnecessary regulations of communications services and close proceedings in which the agency previously had recommended additional regulations. FSF's initial comments in the Delete, Delete, Delete proceeding – focused on outdated, harmful, and unnecessary regulations of video services – were filed on April 11.

House Passes Bill for 6G Task Force and Report

On April 28, the U.S. House of Representatives passed, by a unanimous voice vote, H.R. 2449 – the "Future Uses of Technology Upholding Reliable and Enhanced Networks Act" or the "Future Networks Act." Sponsored by Rep. Doris Matsui and co-sponsored by Reps. Rick Allen and Tim Walberg, the Future Networks Act, if it were to be passed by Congress and signed into law by President Donald Trump, would direct the FCC's Chairman to appoint a "6G Task Force" that would prepare and send to Congress a report on developing standards, uses, and related issues involving future 6G wireless networks. 

Under the bill, the members of the 6G Task Force would include representatives of the communications industry, public interest organizations or academic institutions, and representatives of federal, state, local, and tribal governments. The Future Networks Act requires that, within 180 days of the 6G Task Force being established, the group prepare a draft report on 6G wireless technology. The draft report would be published on the FCC's website and in the Federal Register for public comment Following the public comment period, and within 1 year of the 6G Task Force being established, the group would publish their final report and submit it to House and Senate Committees. 

The development of 6G technologies, standards, and spectrum policies no doubt will be a multi-faceted and complex undertaking. A future 6G report by the type of task force proposed in the Future Networks Act could serve as a valuable storehouse of knowledge for Congress, the FCC, and the Executive Branch and help pave the way for a successful eventual launch of 6G wireless networks. Now that the Future Networks Act has passed the House, the Senate should give the bill due consideration. 

 

In an April 2023 blog post, Free State Foundation President Randolph May identified the restoration of the FCC's authority to conduct competitive bidding spectrum license auctions as essential for future 6G network deployment. However, in the near term, there are many opportunities for expanding 5G networks by repurposing spectrum from government use to private use. Seizing those opportunities depends not only on a replenished spectrum pipeline but revival of the Commission's auction authority. The 119th Congress should restore the FCC’s authority on spectrum license auctions and encourage timely replenishment of the spectrum pipeline.