PRESS RELEASE: FCC Proposing to Reimpose Net Neutrality Regulations Is Foolhardy

Free State Foundation Randolph May issued the following statement regarding FCC Chairwoman Rosenworcel's proposal to reimpose net neutrality regulations: 

It is foolhardy for the FCC to embark on yet another attempt to impose public utility-like regulations on Internet service providers. As a matter of policy, it's wrong to go down this road again when there's no evidence of a problem justifying new burdensome regulations. And as a matter of law, it's a big blunder because it's very likely the Supreme Court will determine that any FCC action reimposing net neutrality regulations is a "major question" and Congress has not clearly authorized the agency to exercise the power it claims. It would make a lot more sense, and benefit consumers, if the Commission would just devote its resources to important matters within its authority, such as ensuring that the multi-billions of dollars in subsidies it's responsible for disbursing are used effectively and efficiently, without fraud or abuse, to promote broadband deployment and adoption?

 

And don't believe for an FCC minute that the Chairwoman Rosenworcel and her Democrat majority colleagues intend to foreclose rate regulation of ISPs' offerings. These actions may not be called "rate regulation" but rather prohibitions on usage-based pricing or free data applications, or some such. The effect will be rate regulation.

Major Questions Doctrine is a Major Obstacle to Net Neutrality Regulation

On September 20, attorneys Donald B. Verrilli, Jr. and Ian Heath Gershengorn published a white paper titled "Title II 'Net Neutrality' Broadband Rules Would Breach Major Questions Doctrine." The co-authors served respectively as former Solicitor General and Acting Solicitor General in the Obama Administration. The paper's co-authors are right in identifying the ascendant major questions doctrine as a major legal impediment to any future attempt by the FCC to re-impose Title II public utility-like regulations on broadband Internet access services. According to Messrs. Verrilli and Gershengorn:

The Supreme Court will surely consider the question whether to classify broadband as a Title II telecommunications service subject to common carrier regulation to be a “major question”—that is, one involving a matter of major economic and political significance… The statutory text on which the Commission proposes to hang its hat lacks the clear statement of authority that the Supreme Court demands. Nothing in Title II of the Communications Act itself or in any other statute gives the Commission the clear and unambiguous authority to classify broadband as a Title II telecommunications service subject to common carrier regulation, and the Commission cannot reasonably conclude otherwise. 

The paper's co-authors trace the Supreme Court's recent major questions decisions – including the June 2023 decision in Biden v. Nebraska and helpfully lays out the factors that the court uses to assess whether Congress provides "clear congressional authorization for agency action" on a matter of major economic and political significance. They provide straightforward analysis of relevant provisions in the Communications Act of 1934 as well as the Telecommunications Act of 1996, concluding that clear congressional authorization is lacking for prospective Title II regulation of broadband by the FCC. Additionally, the co-authors explain why the Supreme Court's 2005 decision in NCTA v. Brand X Services – which upheld the FCC's decision to classify broadband Internet services as a Title I "information service" and not as a Title II "telecommunications service" does not justify Title II reclassification but forecloses it. 

 

According to the paper's co-authors, with Title II amounting to a legal dead end for net neutrality regulation, other avenues should be preferred: 

Congress should enact legislation to resolve this issue once and for all. Absent that, the Commission could use its finite resources to pursue more legally defensible policy initiatives, such as adopting light-touch net neutrality rules under Section 706 of the Telecommunications Act, thereby avoiding Title II reclassification that would be inevitably doomed under the major questions doctrine.

The legal reasoning of Messrs. Verrilli and Gershengorn is persuasive that the FCC lacks statutory authority to impose Title II regulation on broadband Internet access services. And their paper is worthwhile reading. Both Congress and the FCC ought to carefully consider the points made in their paper. 

 

Aside from serious legal roadblocks to imposing Title II public utility-like regulation on broadband Internet services Free State Foundation President addressed policy reasons why such regulation would be a serious mistake in his Perspectives from FSF Scholars – originally published on September 21 as an op-ed in the Washington Examiner – "Reimposing Burdensome Net Neutrality Mandates Will Harm Consumers." And for additional legal background, see FSF President May's July 2022 Perspectives from FSF Scholars, "A Major Ruling on Major Questions."

USF Surcharge Rate Spikes to 34.5%

On September, the FCC's Office of Managing Director announced that the Universal Service Fund (USF) contribution factor for the fourth quarter of 2024 will be 34.5%. This appears to be a record high and a matter of concern for voice consumer welfare and for the future financial integrity of the USF. Absent any unlikely intervention by the FCC's Commissioners, the proposed rate will soon kick in.

The 34.5% figure may not be as high as the prediction of a 36.2% rate for the quarter that was recently was made by an analyst – and discussed in Free State Foundation President Randolph May's September 6 blog post, "How Do You Spell 'Unsustainable'? U-S-F!" But 34.5% is unreasonably high and burdensome on voice consumers. The recent rate increase provides another reminder that a future financial derailment of USF remains an alarming realistic concern that Congress should address. 

 

As briefly noted in my blog post from March 15 of this year, "Consumers Still Burdened as FCC Sets USF Surcharge Rate at 29%" – the USF contribution factor is used to determine the line-item surcharge on voice consumers' monthly bills. The surcharges effectively are taxes on voice consumers to pay for USF programs. 

 

On August 25, the Free State Foundation submitted comments to the Universal Service Working Group lead by Senators Luján and Thune. In those comments, we recommended that Congress replace the current USF system with a broadband-oriented regime that is more focused on supporting low-income Americans and more politically accountable. 

SALE Act Would Put Valuable 2.5 GHz Band Spectrum Licenses into Use for 5G

On September 14, Sen. John Kennedy introduced the 5G Spectrum Authority Licensing Enforcement (SALE) Act -- S. 2787. The short and simple bill, if passed, would grant the FCC a 90-day window of authority to process and grant licenses that were won through the Commission's competitive bidding auction for the 2.5 GHz spectrum band.

In March of this year, the FCC's statutory authority to conduct competitive bidding spectrum license auctions lapsed. But what about the Commission's authority to issue licenses that were already won at previously completed auctions? The Commission concluded its 2.5 GHz band auction back in August 2022. It was announced that over 7,800 county-sized licenses were won by 63 bidders. T-Mobile won over 7,100 such licenses and by late September 2022, T-Mobile submitted long-form applications and paid $304 million to the Commission for those licenses. Chairwomen Jessica Rosenworcel reportedly has taken the position that the agency lacks even the authority to issue licenses won – and paid for – in previously completed auctions. As explained in my July 2023 blog post, "FCC's Unreasonable Delay in Withholding 2.5 GHz Band Spectrum Licenses," there is strong basis for disagreement with Chairwoman Rosenworcel's apparent legal conclusion.

The SALE Act would break the impasse and prompt the FCC to finally issue the 2.5 GHz band spectrum licenses to the rightful recipients. In his press release announcing the introduction of the SALE Act, Sen. Kennedy rightly acknowledges that wireless communications are important to his home state of Louisiana, and particularly to rural areas. The same holds true for the rest of the states and their rural areas. Mid-band spectrum is critically important for 5G wireless services. And valuable spectrum licenses that were fairly won at auction and paid for ought to finally be delivered to the auction winners and put into commercial use to benefit Americans.  Sen. Kennedy deserves credit for introducing the SALE Act. Hopefully, the Senate will quickly take up and pass the bill and the House of Representatives will follow suit. 

 

For more on this topic, see Senior Fellow Andrew Long's blog post July 2023 blog post, "Congress Should Reinstate the FCC's Spectrum Auction Authority," as well as his August 2023 blog post, "Commissioner Carr to Congress: Renew FCC's Auction Authority."

 

(Note: This post has been updated to include the Senate bill number and link for the SALE Act, S. 2787.) 

House Commerce Subcommittee to Hold Hearing on Video Marketplace

The House Energy and Commerce Committee's Subcommittee on Communications and Technology will hold a hearing tomorrow at 2 pm ET entitled "Lights, Camera, Subscriptions: State of the Video Marketplace." Promisingly, this hearing will focus, at least in part, on outdated regulations that inappropriately impede traditional video programming distributors' ability to participate in an increasingly competitive marketplace.

When announcing the hearing, House Energy and Commerce Committee Chair Cathy McMorris Rodger (R-WA) and Communications and Technology Subcommittee Chair Bob Latta (R-OH) stated the following:

Over the last decade, the video marketplace has undergone a transformative shift as more media content moves online. The introduction of streaming services expanded the options for consumers to choose where, when, and what content they view. While there is an unprecedented amount of content, like movies, TV shows, and news, available, the rise of these services creates challenges for traditional media providers who continue to compete despite being saddled with regulations. We look forward to discussing the evolution of this market, the steps Congress can take to ensure outdated regulations do not hinder innovation and competition, as well as how to bring the traditional marketplace into the 21st century.

Scheduled witnesses include:

• FuboTV Inc. Board Member and CEO David Gandler (witness testimony)
• National Association of Broadcasters President and CEO Curtis LeGeyt (witness testimony)
• Consumer Reports Senior Policy Counsel and Manager of Special Projects Jonathan Schwantes (witness testimony)
• America's Communications Association – ACA Connects President and CEO Grant B. Spellmeyer (witness testimony)

In a recent post to the Free State Foundation's blog, I presented the latest evidence of longstanding subscriber trends – specifically, that traditional video programming distribution platforms, both facilities-based and virtual, continue to shed customers while countless streaming services add them.

Consequently, and as I argued in "With Pay-TV on the Wane, Legacy Regulations Should Follow," a July Perspectives from FSF Scholars, "consumers have available more than sufficient choices to compel a comprehensive change in course away from government intervention … and toward the exclusive reliance upon efficiently operating market forces."

Perhaps tomorrow's hearing will serve as a significant step in that direction.

USTelecom Reports Record-Breaking Investment Broadband by Providers in 2022

Capital expenditures by U.S. broadband providers surged to $102.4 billion in 2022, according to USTelecom's "2022 Broadband Capex Report." USTelecom's snapshot report was released on September 8 of this year. 

The $102.4 billion annual capex total is up from $86 billion in 2021 and $79.4 billion in 2020. According to USTelecom's 2022 report, U.S. broadband providers have invested over $2.1 trillion in network infrastructure since 1996. In past reports, USTelecom has pointed out that these estimates likely are conservative because they exclude annual investment by small U.S. broadband providers as well as U.S. satellite broadband providers.

Strong private investment in next-generation networks is an intended result of the FCC's free market-friendly broadband policy that has been in place since early 2018. In its Restoring Internet Freedom Order (2018), the Commission recognized that "increased broadband deployment and subscribership require investment, and the regulatory climate affects investment." In that order, the Commission found that "reinstating the information service classification for broadband Internet access service is more likely to encourage broadband investment and innovation" than subjecting broadband Internet access services to public utility regulation." 

 

Following the Senate's confirmation of Anna Gomez to be the fifth Commissioner on September 7, it is widely anticipated that the FCC will be revisiting the statutory classification of broadband Internet access services. But the success of the Commission's existing market-oriented policy in promoting investment – including $102.4 billion in capital investment in broadband by private market providers in 2022 – deserves front-and-center attention when the debate over broadband regulatory policy ramps up. 

How Do You Spell 'Unsustainable'? U-S-F!

According to a report in Communications Daily, the estimable analyst Billy Jack Gregg projects the "USF contribution factor" will likely increase to 36.2% during Q4 2023, making it the “highest quarterly contribution factor in the history of the USF.” Based on two decades of observation, I'd say you can take Mr. Gregg's projections to the bank. Or maybe more appropriately in this instance, prepare to make a bit larger withdrawal from your bank to pay your telephone bill. 

Mr. Gregg stated total revenue collected will also be about $362 million less than the previous quarter.

 

Let me repeat what most readers already know. Revenue collected from the "USF contribution factor" – "surcharge," or "tax" if you want to call a spade a spade – continues to decline as more and more people abandon the traditional telephone services on which the surcharges are assessed. So, the surcharge has increased from 5.6% in 2000 to 12.9% in 2010 to 27.1% in 2020 to the now projected 36.2% for the last quarter of 2023.

You get the picture.

 

The current Universal Service Fund subsidy regime is unsustainable, and it must be meaningfully reformed. This is not to say that there should not be subsidies to support universal service goals, including support for low-income persons and for high-cost areas that otherwise would not be served. It is to say the legacy universal service regime is broken – and clearly unsustainable.

 

It needs to be replaced with a broadband-centric regime that is economically efficient, effective, transparent, and politically accountable. For a roadmap regarding how to accomplish that objective, please see the Free State Foundation's extensive comments submitted on August 25 to Senators Luján and Thune and the Universal Service Working Group.