Thursday, February 29, 2024

FCC Issues 2.5 GHz Spectrum Licenses, But Agency Still Needs Auction Authority

On February 29, 27, and 1, the FCC granted long-form applications to wireless providers, including T-Mobile, for several thousand spectrum licenses in the 2.5 GHz band won in Auction 108.  

The results of Auction 108 were announced way back in September 2022. Yet the Commission's authority to conduct spectrum license auctions lapsed in March 2023, and Chairman Jessica Rosenworcel has determined that the lapse of that authority prevented the agency from issuing those licenses. At the end of last year, Congress passed the 5G Sale Act, conferring on the FCC a 90-day window to grant licenses won in Auction 108. The Commission's February orders granting the 2.5 GHz band licenses were based on the Act.

 

It is welcome news that parties who successfully bid on spectrum licenses at auction receive the licenses they won and paid for. Also welcome is the news that more mid-band licensed spectrum finally will be put into use for commercial wireless services as a result of Auction 108. However, the lapse in FCC spectrum license auction authority remains, and there also remains a shortage of licensed spectrum for supplying growing wireless data demands on 5G and future 6G networks. Spectrum allocation and harmonization by the NTIA, FCC, and other agencies is a priority. But it also is necessary that Congress spectrum license auction authority to the Commission. 

 

For more on what Congress needs to do, see Senior Fellow Andrew Long's 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."

Wednesday, February 28, 2024

Smaller Networks Marshall the Evidence for Broadband Market's Competitiveness

A report by ACA Connects – included in a February 22 ex parte filing with the FCC – provides a window into the competitiveness of the broadband market from the vantage point of medium and smaller providers. Members of ACA Connects collectively serve nearly 32 million households – or about 25% of all U.S. households – including 7.3 million households in rural communities – or about 29%.

Insightful data points about communities served by ACA members include the following:

  • "Members reached 31% more households via FTTH over the last year, a rate far higher than their overall increase in coverage."
  • "96% of households have two or more fixed broadband options—and 85% have three or more options."
  • "Over a third of all households (37%) in areas served by ACA Connects Members have access to gigabit broadband service."
  • "The ACA Connects Members increased gigabit service availability in [] rural communities from 24% in 2022 to 33% in 2023." 

The ACA Connects report also includes figures about trends in the wider broadband market. This includes a breakdown of the share of U.S. households with competitive presence by technological capabilities of 100/20+ Mbps. According to FCC and Cartesian data for 2022-2023, almost 95% of households are in census blocks where there is an actual or potential presence of a cable, fiber, or licensed fixed wireless access (FWA) broadband provider offering speeds of 100/20+ Mbps. For 89.1% of households, a cable provider offering those speeds has a competitive presence, for 49.7% a fiber provider has a competitive presence, and for 39.6% a licensed FWA has a competitive presence. While those figures are higher than actual access figures for households, there are strong pro-deployment and pro-competitive trends. Back in 2017, only 69% of households had access to a provider offering 100/20+ Mbps, with a cable/fiber/licensed FWA competitive presence breakdown in 2017 of 59.3%/19.4%/1.7%.

 

The ACA Connects report was filed with an ex parte regarding the FCC's proposal to reclassify broadband Internet services as Title II telecommunications services and subject them to public utility regulation, including conduct-based restrictions that could eliminate consumer choice for reduced pricing options such as usage-based billing or free-data mobile offerings.

 

In December 2023, the Free State Foundation filed comments opposing the FCC's Title II reclassification proposal. And in January of this year, FSF filed reply comments. If the Commission adopts its proposal, the harm to private market investments and the ability to generate returns on future investments would come to all broadband providers, with small and medium providers almost certainly being hit the hardest. 

Tuesday, February 20, 2024

Three Weeks from Today! FSF's Premier Policy Conference - Register Now!

The Free State Foundation will hold its Sixteenth Annual Policy Conference on March 12, 2024, at the National Press Club in Washington, DC. This annual conference is widely acknowledged to be one of the nation's premier law and policy events.

 

As always, a truly outstanding lineup of senior officials and prominent experts from the FCC, other government agencies, industry, academia, and think tanks will discuss and debate the most important communications and Internet policy issues of the day. Topics will include net neutrality, broadband subsidies, ACP extension, USF reform, spectrum reform, the First Amendment and free speech, and more!

 

Confirmed Speakers Include:

 

Robert Branson – President and CEO, Multicultural Media, Telecom and Internet Council (MMTC)

 

Brendan Carr – Commissioner, Federal Communications Commission

 

Michelle Connolly - Professor of the Practice, Economics Department, Duke University, and member of the Board of Academic Advisors of the Free State Foundation

 

Seth Cooper – Director of Policy Studies and Senior Fellow, Free State Foundation

 

David Chorzempa - Vice President & Associate General Counsel, AT&T

 

Mignon Clyburn - Former Commissioner, Federal Communications Commission, and Principal, MLC Strategies, LLC

 

David Don - Senior Vice President, Public Policy, Comcast Corporation

 

Scott Harris – Senior Spectrum Advisor, National Telecommunications and Information Administration (NTIA)

 

Blair Levin – Non-Resident Senior Fellow, Brookings Metro, and Policy Analyst, New Street Research

 

Andrew Long – Senior Fellow, Free State Foundation

 

Randolph May – President, Free State Foundation

 

Michael O’Rielly – Former Commissioner, Federal Communications Commission, and Adjunct Senior Fellow, Free State Foundation

 

Jeffrey Rosen - Former Acting Attorney General and Deputy Attorney General of the United States, and former General Counsel and Senior Policy Advisor at the White House Office of Management and Budget 

 

Nathan Simington – Commissioner, Federal Communications Commission

 

Registration is complimentary, including continental breakfast and lunch. But space is always limited. You must register to attend!


Register Now!

 

#FSFConf16

Friday, February 16, 2024

Free State Lawmakers Debate Data Privacy Legislation

Maryland soon could join the not-so-exclusive club for states that have forged divergent data privacy regulatory paths. Last month, New Jersey became the fourteenth state (and the first this year) to enact a comprehensive data privacy law, a development that I highlighted in a January 2024 post to the Free State Foundation's blog. Yet another bill awaits the signature of New Hampshire Governor Chris Sununu.

As I detailed most recently in "More States Compound the Dreaded Privacy 'Patchwork' Problem," a July 2023 Perspectives from FSF Scholars, the longstanding lack of a federal data privacy regime – specifically, one that preempts inconsistent state-specific approaches – has fostered an unworkable situation that creates compliance headaches for companies and confusion for consumers.

Hearings on the Maryland Online Data Privacy Act of 2024 (the Act) were held on February 13, 2024, by the House Economic Matters Committee (House Bill 567) and on February 14, 2024 by the Senate Finance Committee (Senate Bill 541).

The Act establishes a familiar set of consumer rights: to know that personal data is being collected; to access, correct, delete, and receive a copy of personal data; to obtain a list of the categories of third parties to which personal data is disclosed; to opt out of the processing of personal data for targeted advertising and automated profiling; and to opt out of its sale.

Perhaps most notably, the Act goes further than other state laws in limiting the personal data that companies may collect – that is, "data minimization" ("A controller shall … [l]imit the collection of personal data to what is reasonably necessary and proportionate to provide or maintain a specific product or service requested by the consumer to whom the data pertains.")

On its face, the Act does not create a private right of action. As was the case with the New Jersey law reference above, however, the Act's draft language has prompted concerns that it "do[es] not explicitly provide for exclusive Attorney General enforcement" (emphasis added). Specifically, Section 14-4613, which defines a violation of the Act as "[a]n unfair, abusive, or deceptive trade practice … [s]ubject to the enforcement and penalty provisions contained in Title 13 of this article," also ambiguously asserts that it "does not prevent a consumer from pursuing any other remedy provided by law."

Breaking from the approach embraced by other states, and thus further complicating compliance for companies, the Act does not provide businesses with an opportunity to cure alleged violations.

If enacted, the Act would go into effect on October 1, 2024.

Wednesday, February 14, 2024

Court Selected to Hear Legal Challenges to FCC's Digital Discrimination Order

According to a February 9 order by the U.S. Judicial Panel on Multidistrict Litigation, several legal challenges against the FCC's November 2023 Digital Discrimination Order will be consolidated and heard before the 8th Circuit Court of Appeals. Although all acknowledge that Section 60506 of the Infrastructure Investment and Jobs Act of 2021 authorizes the Commission to adopt rules prohibiting intentional digital discrimination of access to broadband Internet services based on one's membership in a protected class, the Commission's Order exceeds the agency's statutory authority by imposing unintentional disparate impact liability on broadband Internet service providers.

In March 2023, the Free State Foundation filed public comments in the Commission's digital discrimination proceeding addressing the legal authority conferred on the Commission:

The text of the Infrastructure Act requires an intent-based definitional standard for digital discrimination. Section 60506(b) authorizes the Commission to adopt rules that prevent digital discrimination "based on" the specific categories of income level, race, ethnicity, religion, or

natural origin. The Infrastructure Act's inclusion of the words "based on" in connection with suspect or prohibited classifications and – most significantly for purposes of statutory interpretation – the absence of any broader catchall terms such as "results in" or "otherwise

adversely [a]ffects" indicates that proof of intent is a necessary element of any successful claim of "digital discrimination." 

Congress undoubtedly also was aware of Supreme Court precedents regarding the use of catchall terms to express intent when it enacted the Infrastructure Act and declined to include in the statute any such catchall terminology. As a result, Section 60506 should be understood as conferring no authority on the Commission to adopt an unintentional disparate impact standard for digital discrimination in broadband deployment.

 

Given recent developments in Supreme Court jurisprudence, particularly the emergence of the major questions doctrine, the Commission may not be able to rely on Chevron deference to prop up the agency's imposition of unintentional disparate impact liability. The Free State Foundation's April 2023 reply comments addressed this point:

We agree with comments that the Commission's interpretation of Section 60506 is limited by the major questions doctrine. As explained by the Supreme Court in West Virginia v. EPA (2023), the doctrine holds that there are certain "extraordinary cases" involving decisions of such "political and economic significance" that a "clear congressional authorization" by Congress is required for the agency to exercise the powers it claims. Section 60506 does not contain clear congressional authorization for redrawing the regulatory landscape of broadband Internet services under the Communications Act… The broader the extent to which the Commission's rules impose liability on ISPs and the more onerous the restrictions and obligations they impose on the details of deployment undertakings, the more likely it is that such rules would be of vast political and economic significance. 

FSF's reply comments concluded if the Commission imposed disparate impact liability that the agency's new regulatory apparatus would more likely be considered an extraordinary case that would be unlawful under the major questions doctrine.

Friday, February 09, 2024

Cable Wireless MVNOs Set for Further Growth in 2024

Cable wireless mobile virtual network operators (MVNOs) are important component of the effectively competitive wireless communications market. The two largest cable MVNO services – Comcast's Xfinity Mobile and Charter's Spectrum Mobile – have been in operation only a handful of years. Although their subscribership is far below the three major mobile wireless providers T-Mobile, Verizon, and AT&T, cable MVNOs have made modest but steady gains ever since they entered into the wireless market. According to recent reports, Xfinity Mobile finished 2023 with 6.58 million subscribers and Spectrum Mobile finished with 7.8 million.  

There remains plenty of room for growth in 2024, as cable MVNOs continue to explore using their own licensed CBRS spectrum to carry mobile wireless traffic and reduce reliance on leased spectrum. According to an article published on January 10 of this year in LightReading, Cox Mobile also is looking to expand its wireless offerings in 2024, and it is now conducting tests on licensed CBRS spectrum for fixed wireless access (FWA) applications. As noted in a February 2023 article in FierceWireless, Cox paid $200 million for CBRS spectrum licensees auctioned by the FCC. Cox Communications is not publicly traded and doesn't publish subscriber numbers. 

Thursday, February 08, 2024

FCC Commissioners Carr and Simington Keynoters at #FSFConf16 - March 12

FREE STATE FOUNDATION

Sixteenth Annual Policy Conference

Keynote Speakers Include:

 

FCC Commissioner Brendan Carr

FCC Commissioner Nathan Simington

WHAT: FSF's Sixteenth Annual Policy Conference

 

WHERE: National Press Club, Washington, DC

 

WHEN: March 12, 2024 – 9:00 AM - 2:30 PM

 

The Free State Foundation will hold its Sixteenth Annual Policy Conference on March 12, 2024, at the National Press Club in Washington, DC. This annual conference is widely acknowledged to be one of the nation's premier law and policy events.

 

As always, a truly outstanding lineup of senior officials and prominent experts from the FCC, other government agencies, industry, academia, and think tanks will discuss and debate the most important communications and Internet policy issues of the day. Topics will include net neutrality, broadband subsidies, ACP extension, USF reform, spectrum reform, the First Amendment and free speech, and more!

 

Confirmed Speakers Include:

 

Robert Branson – President and CEO, Multicultural Media, Telecom and Internet Council (MMTC)

 

Brendan Carr – Commissioner, Federal Communications Commission

 

Michelle Connolly - Professor of the Practice, Economics Department, Duke University, and member of the Board of Academic Advisors of the Free State Foundation

 

Seth Cooper – Director of Policy Studies and Senior Fellow, Free State Foundation

 

David Don - Senior Vice President, Public Policy, Comcast Corporation

 

Scott Harris – Senior Spectrum Advisor, National Telecommunications and Information Administration (NTIA)

 

Blair Levin – Non-Resident Senior Fellow, Brookings Metro, and Policy Analyst, New Street Research

 

Andrew Long – Senior Fellow, Free State Foundation

 

Randolph May – President, Free State Foundation

 

Michael O’Rielly – Former Commissioner, Federal Communications Commission, and Adjunct Senior Fellow, Free State Foundation

 

Jeffrey Rosen - Former Acting Attorney General and Deputy Attorney General of the United States, and former General Counsel and Senior Policy Advisor at the White House Office of Management and Budget 

 

Nathan Simington – Commissioner, Federal Communications Commission

 

Registration is complimentary, including continental breakfast and lunch. But space is always limited. You must register to attend!

 

Register Now!

 

#FSFConf16