The FCC Should Not Mandate the Next Gen TV Transition

Communications is one of the most innovative sectors of the U.S. economy. Industries ranging from broadcasting, smart phones, over-the-top Internet, cable, and satellite are battling for a larger slice of the market for entertainment and communication, broadly defined. So far, the secret to success has usually been the introduction of a new technology or business model that improves users’ experience. Regulators should welcome this type of marketplace competition since it produces faster growth and better living standards. It also helps boost U.S. competitiveness in a strategic competition against international challengers.

However, companies sometimes engage in another form of competition. That is, seeking to pressure regulators to give their own preferred technology or standards an advantage by adopting rules that favor them. This can be done by forcing competitors to use a favored regulatory standard or discouraging the use of a rival one. Either option conveys a competitive advantage in the marketplace. While it is normally preferable for companies that may compete with each other to face similar regulatory burdens, this is almost always better achieved by lowering the total burden rather than increasing it. Specifically, regulators should be very careful not to favor one technology over another absent compelling circumstances.

 

Unfortunately, this is exactly what the broadcasting industry is advocating as it asks the FCC to make the new Next Gen TV standard (also known as ATSC 3.0) mandatory. This would force households, broadcasting stations, and cable and satellite providers to purchase new equipment to meet the standards. It is not that the standard is per se bad. A number of broadcasters have voluntarily adopted Next Gen TV on their own. The underlying objection is that making Next Gen TV mandatory would foreclose the ongoing competition between it and other standards, including the existing one, and remove the pressure to improve them over time.

The broadcasters’ request has attracted opposition, including from cable and satellite operators who would have to adopt Next Gen TV in order to deliver broadcasters’ channels to their subscribers. The broadcasters are also requesting that the FCC should set a firm deadline ending use of the current ATSC 1.0 signals. This would force everyone to switch over to the new standard. Viewers would have to buy either converters to translate the new standard or new televisions with the new tuners.

As the NCTA writes: “[T]he cable industry does not oppose broadcasters’ use of new technologies. We simply believe that broadcasters’ transition to a new standard should not come at the expense of [multichannel video programming distributors], equipment manufacturers, and consumers, with no guarantee of meaningful benefits.”

The FCC may lack the power to do what broadcasters are requesting. As the NCTA points out, current must carry requirements were passed when it was possible to argue that cable carriage was necessary to protect free, over-the-air broadcasting because there was little competition between content providers. Since then there has been an explosion in video offerings. In addition to the traditional over-the-air broadcasters, many homes can choose between cable, satellite, fiber, and over-the-top content on the Internet. The rationale for regulation is much weaker now.

In addition, courts have adopted less deferential standards for reviewing agency action, especially for issues of “vast economic and political significance,” unless Congress has clearly empowered the agency with authority over the issue. FCC rules may not survive a challenge under the new doctrine. The NCTA argues that forced conversion, by requiring significant costs, would represent a taking and force their members to carry certain broadcasts against their will.

Continued innovation in the communications marketplace over the next decade will be much faster if two conditions are met. The first is that new technical standards are welcome provided they increase value to consumers. Second, such new standards will need to spread through voluntary adoption driven by consumer demand. The FCC should not favor one set of standards over others.

Sanders' AI Bill Is a Red Herring and Blackburn's Has Problems

With the White House calling for a national AI framework to end the patchwork of state regulation, two notable proposed pieces of federal legislation have emerged. And the one getting less attention at the moment is the one that matters more.

Senator Marsha Blackburn (R-TN) released a discussion draft of the TRUMP AMERICA AI Act (you read that right, The Republic Unifying Meritocratic Performance Advancing Machine Intelligence by Eliminating Regulatory Interstate Chaos Across American Industry Act) on March 18, 2026, a 291-page federal framework developed in response to the Trump administration's call for a national AI policy. Senator Bernie Sanders (D-VT), joined by Representative Alexandria Ocasio-Cortez (D-NY), introduced the 13-page Artificial Intelligence Data Center Moratorium Act on March 25, 2026. It would halt data center construction until Congress enacts legislation to ensure: that future AI products are "safe and effective"; that AI does “not threaten the health and well-being of working families”; and that AI does not displace jobs. The two AI bills are not comparable in scope or consequence.

The Sanders moratorium bill has received the most mainstream coverage, possibly in part because it is the only one of the two to be formally introduced. But it’s easy to see why all the fuss. The moratorium bill takes advantage of anxieties that translate directly into headlines: job displacement, strain on the power grid, and industrial construction in people's backyards. While these concerns affect real people, the bill's moratorium is ill-conceived and would be harmful. Pausing data center construction pending new AI legislation would be a significant brake on American AI infrastructure at precisely the moment the Trump administration is pushing to accelerate it and would let foreign competitors move ahead.

But Sanders’ moratorium bill is almost certainly a political statement about AI as a threat rather than a realistic proposal. It is unlikely to gain serious legislative traction, and its primary practical effect may be to divert attention from more consequential legislation.

The Blackburn bill is one piece of potentially more consequential legislation. As a proposed comprehensive federal AI framework, it is more technically complex and far-reaching than the moratorium bill. Yet it has received a fraction of the coverage. Other think tanks including the Competitive Enterprise Institute and the Cato Institute have explained how the bill would impose heavy-handed regulation across the AI ecosystem.

Some aspects of Senator Blackburn’s bill that may be problematic and require close attention include: a full-on repeal of Section 230 of the Communications Act of 1934; imposing “duty of care” on chatbot developers; holding AI developers liable for harms beyond existing laws on fair and deceptive practices; requiring federal contracts to use "unbiased" large language models; creating a Department of Energy testing program for adverse incidents in AI systems; and directing DOE to develop certification procedures, licensing requirements, and broad regulatory oversight.

I wrote last week that the federal AI framework needs a light-handed approach grounded in free market competition. I explained that “robust competition among American companies is the precondition for national competitiveness” and consumer satisfaction. While established developers may fare fine under such a burdensome scheme, their products would fall behind other nations not facing such operating and compliance costs. And startups and emerging competitors would fare even worse.

The Sanders moratorium deserves the criticism it has received. But the current Blackburn bill has problematic provisions that deserve scrutiny it has not yet gotten.

PRESS RELEASE: "Misusing 'Affordability' in Broadband Subsidies Is Wrong"

 

The following statement should be attributed to Free State Foundation President Randolph May regarding a proposed bill titled ‘‘Prioritizing Rural Broadband Affordability Act" introduced by Rep. April McClain Delaney (D-Md.) and Rep. Rob Bresnahan (R-Pa.):

“This bill, which requires the Agriculture Department to consider ‘affordability’ of broadband service in determining whether an area is ‘unserved,’ is unnecessary, unworkable, and mischievous. The bill lacks a definition of ‘affordability,’ nor could one be formulated administratively that would be efficient and not invite waste of taxpayer dollars. More fundamentally, whether an area is unserved should not be linked to an ‘affordability’ determination. Concerns regarding ‘affordability’ properly should be addressed through provision of targeted support to low-income households.

Representative Lofgren's Online Privacy Act Has Reentered the Chat

As we eagerly await word from the House Energy and Commerce Committee's data privacy working group, Representative Zoe Lofgren (D-CA) once again has resurrected the problematic Online Privacy Act (OPA).

In February 2025, Committee Chairman Brett Guthrie (R-KY) and Vice Chairman John Joyce, M.D. (R-PA) announced the establishment of a data privacy working group "to bring members and stakeholders together to explore a framework for legislation that can get across the finish line." (For more information please see my contemporaneous post to the Free State Foundation blog).

Shortly thereafter, the working group solicited public comment on a Request for Information that I summarized in a follow-up blog post.

In a January Perspectives from FSF Scholars summarizing privacy-related legislative activity in 2025, I shared speculation that the working group might introduce a bill "soon." Separate reporting around the same time indicated that the working group "intend[s] to take up action on a broader, comprehensive federal privacy measure in spring 2026."

In the interim, Representative Lofgren for the fourth time has introduced the OPA, a draft bill first unveiled in 2019 and then again in 2021 and 2023.

As I pointed out in "A Tale of Three Data Privacy Bills: Federal Legislative Stalemate Enables Bad State Laws," a January 2022 Perspectives, the OPA has two top-level shortcomings: (1) it "is silent on the issue of preemption," and thus fails to address the state-level "patchwork" problem that in the intervening years has only gotten worse; and (2) it creates a private right of action that, unlike exclusive enforcement by the FTC, would be far more likely to benefit the plaintiffs' bar than consumers.

With the vernal equinox exactly one week in the rear-view mirror, it remains possible that the working group will introduce (presumably preferable) comprehensive data privacy legislation this spring.

Time will tell.

Why Is Vance Supporting Overregulation of Rail Service?

On March 16 the Washington Post published an article by John Shelton, Vice President for Public Policy at Advancing American Freedom. The article criticized Vice President JD Vance for supporting the so-called Railway Safety Act. Mr. Shelton began by describing the Trump Administration’s normal approach to artificial intelligence (AI) and innovation, which has been to rally behind AI’s ability to deliver large economic and social benefits. In an earlier speech, Vance described the promise of a new industrial revolution as being on par with the invention of the steam engine. However, at the same time, Vance warned against overregulation, which would deter innovators from taking the risks needed to make new discoveries, including large investments of time and money. 

 

As Mr. Shelton points out, Vance’s support of AI seems incongruent with his current support of the proposed Railway Safety Act. Vance is one of the bill's major supporters even though it would increase regulatory burdens without having a positive effect on rail safety.

The origin of Vance’s support is a 2023 train derailment in East Palestine, Ohio, which Vance represented when he was a Senator. Yet the bill’s provisions have little to do with derailments. One of the most controversial provisions would require most trains to have at least two employees at all times. However, the train in East Palestine had three crew and none of them could have prevented the disaster. In fact, there is no evidence that crews of one are inherently less safe than crews of two.

The railroads have a long history of steady improvements in safety, going from 8,205 accidents in 1980 to 1,818 in 2023, even as the amount of rail freight intermodal traffic increased from under 9 million containers in 2000 to over 13 million in 2020. This effort has mainly focused on collecting data on train operations, processing it to detect safety concerns, and issuing an automated response to any safety threats, often without waiting for a human action. Over time, this process has led to better data, faster processing, and more accurate responses than humans can deliver. Much of this safety progress has been at the initiative of the railroads themselves rather than the Federal Railway Administration. Now, AI promises to supercharge this process leading to even further safety improvements.

Ralph Waldo Emerson once said: “[a] foolish consistency is the hobgoblin of little minds” So is foolish inconsistency. Vice-President Vance’s support of the Rail Safety Act requires another look.

 

Talkie's Preemption Petition Looks Persuasive - Part II

On March 12, I posted a blog titled, "Talkie's Preemption Petition Looks Persuasive." As I explained, in its petition Talkie asks the FCC to preempt Queen Anne's County in Maryland from enforcing what it claims are local zoning requirements that have the effect of prohibiting Talkie from attaching its communications equipment to a utility pole owned by Talkie. The county's purported justification for obstructing Talkie's proposed broadband service is that it would be delivered over multi-use (that is, comingled) facilities.

 

In my March 12 post, I concluded:

 

This is just one of many instances in which local cities and counties across the country implement onerous and often costly requirements, or engage in bureaucratic delay tactics, that prevent the timely deployment of new communications services and advanced broadband infrastructure. It's important that, when appropriate, the FCC grant meritorious preemption petitions. Talkie's petition looks like it may be just such a case.

 

While I hope that the Marylanders who might be served by Talkie proposed broadband service will not be denied that service because of improper actions by local officials, I'm also interested, of course, in the principle at stake in this particular preemption spat and other similar ones. That's why, in the above excerpt, I referred to "many instances" involving tactics similar to those confronted by Talkie in Maryland.

I'm pleased to see that INCOMPAS, representing a broad coalition of competitive communications providers and broadband builders, has submitted comments to the FCC supporting Talkie's preemption petition. INCOMPAS reports that its members "regularly

encounter discriminatory zoning requirements, excessive fees, sequential permitting processes, and de facto moratoria that significantly hinder broadband deployment."

 

INCOMPAS states that "the Commission has consistently preempted fees and requirements that disrupt deployment of advanced services over commingled facilities. The County’s opposition asks the Commission to retreat from that settled position, and INCOMPAS urges the Commission to decline to do so." Therefore, according to INCOMPAS, "the outcome of this proceeding will affect every INCOMPAS member deploying modern multi-use networks."

 

It is this potentially broader impact of the Commission's disposition of Talkie's preemption petition –aside from concern regarding the immediate impact on those residents who might benefit from having available Talkie's services – that prompted me to highlight Talkie's petition in the first place. Absent affirmative Commission action on Talkie's petition pursuant to Section 253 of the Communications Act, the ability to deliver broadband services over multi-use infrastructure could be put in jeopardy.

 

If that is the case, the full realization of FCC Chairman Brendan Carr's much-needed "Build America" agenda, which is necessarily dependent on rapid deployment of broadband infrastructure, could be adversely impacted. It still looks to me like Talkie has presented a persuasive case that should be given close attention by the Commission in a timely fashion.

 

Rather Than Mandate Standards, the FCC Should Encourage Innovation

There is a consensus that regulators should welcome new technology and foster innovation rather than favoring one technology or business model over others. The FCC is at risk of violating this principle as it considers mandating NextGen TV for broadcasters. Doing so would stymie the ongoing competition between different standards in return for adopting an unproven and costly approach.

As former FCC Commissioner Michael O’Reilly recently argued in a Perspectives from FSF Scholars, there is no need for the FCC to mandate a standard now. Although NextGen TV promises several features, including better picture quality, interactive content, and targeted advertising, it is not clear that it is delivering them yet. Mandating NextGen TV now may commit the Commission to the high costs and slow adoption rates characteristic of an unproven technology.

Meanwhile, the market for innovation is working. Companies are experimenting with different distribution technologies including streaming, 5G, and NextGen TV. Some broadcasters are voluntarily adopting it in a constant search for better distribution systems, showing that success is possible. What broadcasters need to do now is to capture users by providing an enhanced viewer experience.

A mandate would also impose significant cost on others. Providers of cable and satellite service would have to purchase new equipment. Consumers would need either new televisions or an antenna capable of converting the new over-the-air signal to the old one. The Commission would have to require TV manufacturers to adopt the new standard. This is true even though the vast majority of viewers don’t rely on over-the-air signals.

Another basic principle is that regulations should not favor one technology over others, or one set of competitors over another. Yet mandating NextGen TV would advantage broadcasters over cable and satellite providers. Rather than having to compete for viewers, the Commission would basically deliver captive viewers to broadcasters.

The benefits of future technologies are often difficult to envision. But the constant demand for improving consumer experiences is a very strong motivator. As the regulator of one of the economy’s most innovative sectors, the Commission should encourage this process rather than short circuit it.

 

White House to Congress: Fix the AI Patchwork

The Trump Administration issued seven AI policy recommendations for Congress on Friday, March 20, 2026, including one for preemption, asking Congress to make sure state legislatures don’t get in the way of AI innovation (Recommendation VII). 

This recommendation is exactly what the moment calls for. Last week, I wrote a FSF Blog post about just this issue. After describing the extraordinarily wide range and volume of AI bills moving through statehouses across the country, I wrote: “What the nation really needs is an overarching federal framework that avoids ex ante heavy-handed regulation and that supplants the growing patchwork of state laws.” The White House has now said the same thing. 

Recommendation VII reads: “Congress should preempt state AI laws that impose undue burdens to ensure a minimally burdensome national standard consistent with these recommendations, not fifty discordant ones.” It clarifies the distinction between federal and state domains of AI regulation. The federal government is better positioned to “supporting innovation” because AI is “an interstate phenomenon” that is part of the “national strategy to achieve global AI dominance.” Absent preepmtion, states may otherwise “unduly burden Americans’ use of AI.” State governments are positioned to regulate AI as it pertains to issues specific to their state such as consumer protection, zoning, law enforcement, and public education.

Here are a few additional details encouraging innovation among the White House’s six other recommendations: “lead the world in AI by removing barriers to innovation” (Recommendation V); “not create any new federal rulemaking body to regulate AI” (Recommendation V); and “streamline federal permitting for AI infrastructure construction and operation” (Recommendation II); The White House also recommends preventing censorship and protecting free speech (Recommendation IV).

Noticeably absent from the seven recommendations, however, is an explicit acknowledgment that free market competition is both a means of achieving the White House’s ambitions and an essential benefit to American consumers. Recommendation VII frames preemption in terms of competing with other nations but overlooks a foundational point: robust competition among American companies is the precondition for national competitiveness. A truly pro-innovation framework would make free market competition an explicit objective in recognition that this helps ensure that the best products and services are made available to consumers at the lowest prices. 

Now, Congress needs to follow through on the White House’s recommendation for preemption. And with a strong commitment to fostering market competition, Congress and existing federal agencies have the opportunity to get AI regulation right.

Charter/Cox Transaction, Approved by Federal Regulators, Awaits California OK

On March 19, the New York State Public Service Commission approved – with questionable conditions – the transfer of control of Cox Enterprises, Inc. (Cox) to Charter Communications, Inc. (Charter). Weeks before, the FCC signed off on this pro-consumer transaction with no strings attached. The Department of Justice (DOJ), for its part, cleared the deal in September 2025, thereby triggering a one-year countdown during which the transaction must close lest that approval expire.

The California Public Utilities Commission (CPUC) now stands as the final, time-sensitive hurdle preventing the formation of a combined company better able to compete in broadband, mobile, and video. The parties therefore requested on February 27 that, should the CPUC find it necessary to hold an evidentiary hearing, it do so "promptly" – specifically, at some point next week. However, on March 2, the CPUC announced that it would not hold evidentiary hearings until April 20-24.

In a June 2025 Perspectives from FSF Scholars, FCC comments coauthored with Free State Foundation President Randolph May, and a brief submission to the CPUC, I consistently have argued that this transaction likely would deliver tangible consumer benefits without imposing significant offsetting harms. For example, in those comments filed with the CPUC, I wrote that:

[T]he combination of these two companies promises to provide California consumers of broadband, wireless, and video services with cost savings, expanded choice, and accelerated innovation, particularly in Cox service areas. Moreover, potential concerns regarding transaction-specific harms are obviated by (1) the de minimis overlap between the parties' respective geographic footprints, and (2) the substantial competitive pressures cable operators face from Big Tech, rival distribution technologies, and over-the-top content providers.

In a February 27 order, the Chiefs of the FCC's Wireline Competition Bureau, Office of International Affairs, and Wireless Telecommunications Bureau agreed, concluding that there are "certain public interest benefits [that] are likely to be realized, including promoting competition and consumer benefits for broadband and other services the combined company will provide" – and not "a significant likelihood of any material transaction-related public interest harms."

But as these things go, Charter and Cox also must obtain approvals from the states within which they operate. As noted above, New York recently blessed the transaction – though not without first extracting a figurative pound of flesh in the form of commitments to (1) spend at least $100 million on network upgrades to deliver symmetric Gigabit per second broadband speeds (that is, speeds well above the FCC's definition of "broadband": 100 Megabits per second (Mbps) downstream and 20 Mbps upstream), (2) replace 500+ Wi-Fi access points and provide free Wi-Fi access to non-customers, and (3) "fund digital inclusion and community initiatives."

That leaves California.

At the Morgan Stanley Investors Conference earlier this month, Charter Communications, Inc. CEO Chris Winfrey acknowledged that, "[n]o secret, we're working through California as the big state that remains open." And as a Charter spokesperson was quoted in a recent Broadband Breakfast article, "[w]e are working with California state regulators to complete the transaction review soon so we can bring lower prices, higher wages, and our 100% US-based customer service to more communities across the country."

There is now widespread agreement, at both the federal and state levels, that the combination of Charter and Cox would net substantial consumer benefits. California therefore should conclude its review with all due speed. Specifically, it should do so with a watchful eye toward the September 15 expiration date associated with the DOJ's approval – a deadline that, if missed, "would cost the companies $2.5 million in filing fees and require them to wait at least another 30 days for DOJ clearance."