Friday, July 31, 2020

Spectrum Management Working Group Proposals Target Roles of FCC, NTIA

On July 30, the Commerce Spectrum Management Advisory Committee (CSMAC) Working Group 1 released its Final Report (along with a Presentation) on the topic of governance. That report includes a number of proposals to improve the spectrum-management process that involve reassigning, consolidating, and/or transferring to a new federal agency functions currently performed by the FCC (for commercial spectrum) and NTIA (for federal spectrum).
In October 2018, the White House issued the "Presidential Memorandum on Developing a Sustainable Spectrum Strategy for America's Future."

CSMAC Working Group 1's mission was to evaluate whether the existing spectrum governance model is optimized to implement that (still under development) National Spectrum Strategy — and if not, to propose alternatives.

In its Final Report, Working Group 1 concludes that "the United States’ current approach for managing the use of spectrum is no longer effectively serving the needs of the entire stakeholder community and would benefit from reform." It therefore proposes a number of possible changes. They include:
  • Creating a new "Full-Service Spectrum Agency" that would assume all spectrum-related responsibilities currently handled by the FCC and NTIA;
  • Combining the two into a single, independent "Unity Agency," of which the FCC and NTIA would serve as subsidiary "offices," and empowering a single administrator with decision-making authority (thereby eliminating the need for FCC commissioners);
  • Establishing a "Spectrum Resource Agency" that would be responsible for only a subset of the spectrum-related actions that the FCC and NTIA currently perform (that is, planning and allocation, international policy, R&D, and forecasting), with those agencies continuing to carry out spectrum assignments (including auctions), licensing, equipment authorization, and similar functions; and
  • Transferring to a "New FCC" the spectrum management responsibilities of the NTIA — or, in the alternative, to a "New NTIA" the spectrum management responsibilities of the FCC.
In addition, Working Group 1's Final Report proposes several options to improve spectrum management, whether in combination with one of the reforms noted above or on their own. They include:
  • An expanded focus on R&D;
  • Revisions to the 2003 Memorandum of Understanding (MOU) between the FCC and NTIA; and
  • A periodic review of spectrum governance models (that is, every 3-5 years).
For a summary of recent breakdowns in the intergovernmental spectrum coordination process, along with suggestions to revitalize such efforts moving forward, please take a look at Free State Foundation Visiting Fellow Gregory J. Vogt's June 15 Perspectives from FSF Scholars, "Coordinated Government Decisionmaking on Spectrum Issues: It's Vital to Locating More Spectrum for 5G Use."

Thursday, July 30, 2020

New Report Highlights the Economic Impact of the "4G Decade"

If you're old enough to remember a time before cellphones, you likely have a general appreciation of the transformative role that mobile connectivity has played in American life. But have you ever tried to express that impact in economic terms? A July 29 study, prepared by CTIA — The Wireless Association and Recon Analytics, does just that. And the takeaways are impressive.
"The 4G Decade: Quantifying the Benefits," as its name suggests, details the impact of 4G wireless technology on investment, Gross Domestic Product (GDP), jobs, and consumer welfare during the ten-year period that began in 2010. One data point, in particular, drives home the overarching theme: based upon contributions to GDP ($690.5 billion in 2019 alone), were the U.S. wireless industry its own country, it would rank as the 21st largest economy in the world.

Some additional conclusions worth noting:

  • Wireless providers invested $261 billion in 4G networks over the last ten years;
  • During that same timeframe, wireless GDP grew by 253 percent — and was responsible for nearly 10 percent of the total increase in U.S. GDP;
  • 4G networks support 20 million American jobs — one out of every six — making wireless the top industry in terms of job contribution; and
  • Prices have dropped significantly, saving consumers $130 billion annually. The same unlimited plan that cost on average $114 in 2010 today can be purchased for just $65 — while speeds, coverage, and device capabilities all have improved substantially.
As noted by Roger Entner, Analyst and Founder of Recon Analytics, "[t]he trajectory of U.S. 4G development should serve as a guide to consider — and to enable — the full transformational power of the coming 5G decade."

On the topic of 5G's potential economic impact, James E. Prieger, Professor of Economics and Public Policy at the Pepperdine University School of Public Policy and a Member of the Free State Foundation's Board of Academic Advisors, recently weighed in. In a June 1 Perspectives from FSF Scholars, "An Economic Analysis of 5G Wireless Deployment: Impact on the U.S. and Local Economies," he concluded that:

8.5 million jobs will be created over 2019-2025 compared to a counterfactual 4G-only world, with an average of 1.2 million new jobs each year. The workers filling these new jobs will earn more than $560 billion during that time, create $1.7 trillion in additional output, and add over $900 billion to U.S. GDP.

Tuesday, July 28, 2020

FCC Action on Pole Attachments Would Accelerate Broadband Access to Unserved Areas

On July 20, the FCC requested public comments on a NCTA petition for a declaratory ruling that would reduce barriers to attaching fiber cables to replacement utility poles in unserved areas. The requested ruling would require utility pole owners to share in the cost of new poles in those areas. It also would put pole attachment complaints in unserved areas on the Commission's accelerated docket for faster resolution. 

NCTA's proposal for a declaratory ruling on utility poles in unserved areas appears legally supportable. By granting the petition, the Commission can help accelerate deployment of broadband Internet networks and increase access to Americans who need it.

Section 224 of the Communications Act authorizes the FCC to "regulate the rates, terms, and conditions of pole attachments to provide that such rates, terms, and conditions are just and reasonable, and . . . adopt procedures necessary and appropriate to hear and resolve complaints concerning such rates, terms, and conditions." The Commission's implementing rules govern pole attachments in about 30 states. The remaining states have opted to regulate pole access and rates under their own rules. Also, Section 224 doesn't apply to utility poles owned by municipalities or cooperatives. Rules regarding pole attachments are necessary to keep utility pole owners from exercising monopoly power to charge above-market rates for leasing access to poles and, therefore, driving up consumer prices for services that depend on such access. 

When broadband networks are deployed to unserved areas, the existing utility poles often need to be replaced to allow for new attachments. Apparently, some utility pole owners try to push all the costs of replacing their poles onto cable operators or wireline telecommunications providers as a condition for allowing attachments. But saddling providers with the entire expense of replacing old poles is unreasonable and it significantly impedes efforts to reach unserved Americans. 

There are good reasons why owners should bear responsibility for some of the expense of replacing their utility poles. Utility poles have limited lifespans, and even in the absence of renters the owners eventually incur costs to replace old poles with new ones. Also, owners receive the benefit of increased revenues through upgraded poles that have expanded space for leasing. Recognition that owners ought to share in the costs of replacing their poles is consistent with Section 1.1408(b) of the Commission's rules, which provides: "The costs of modifying a facility shall be borne by all parties that obtain access to the facility as a result of the modification and by all parties that directly benefit from the modification" (emphasis added). 

Cable operators and wireline telco providers should be obligated to pay only the incremental costs that they cause in hastening the replacement of old utility poles with new ones. The Commission ought to adopt a formula for apportioning pole attachment replacement costs, and thereby reduce a significant barrier to broadband deployment in unserved areas.  

Additionally, the Commission can facilitate faster deployment to Americans who lack access to broadband Internet services by putting pole attachment complaints involving unserved areas on the agency's Accelerated Docket. The Accelerated Docket includes a 60-day timeframe for resolving disputes more quickly. This matter is clearly within the Commission's discretion, and it is a common sense measure for speeding up network deployment. 

By taking action on NCTA's pole attachments petition, the Commission can take a modest, but important, step to reduce infrastructure cost barriers that otherwise impede bringing broadband more quickly to all Americans.

Monday, July 27, 2020

In Senate Subcommittee Testimony, FTC Seeks Additional Privacy Authority

On July 21, the Federal Trade Commission (FTC) appeared before the Senate Commerce Committee's Subcommittee on Manufacturing, Trade, and Consumer Protection.

In written testimony, Andrew Smith, Director of the Bureau of Consumer Protection, focused primarily on the agency's recent and ongoing actions to protect consumers from scams, deceptive advertising, illegal robocalls, and other threats relating to the COVID-19 pandemic.

However, Mr. Smith also used this opportunity to advocate for additional FTC authority in the privacy and data security space. Specifically, he urged Congress to pass federal legislation that:
  • Amends Section 5 of the FTC Act, which prohibits deceptive or unfair commercial practices, to allow the agency to impose fines for first-time violations;
  • Expands the FTC's authority under Section 5 to include non-profits and common carriers; and
  • Provides it with targeted rulemaking authority under the Administrative Procedure Act (APA).

Friday, July 24, 2020

The 30th Anniversary of the ADA and the FCC's Important Role

Today is the 30th Anniversary of the landmark Americans with Disabilities Act (ADA).

The FCC has an important role to play in implementing the ADA in a way that delivers on its promise to make services available to all Americans – specifically including making communications services accessible to the hearing impaired.

Of course, during the coronavirus crisis with lockdowns, quarantines, social distancing, and other strictures, awareness of the importance of the ADA's accessibility mandate to those with hearing impairments has been heightened even further.
In recognition of the 30th Anniversary, FCC Chairman Ajit Pai commendably issued a statement acknowledging the importance of the ADA to those who are disabled and affirmed the FCC's role in fulfilling the ADA's mission. Here is an excerpt from Chairman Pai's statement:

“The FCC’s core mission is to help ensure that every American has access to advanced communications, including the tens of millions of Americans with disabilities. The FCC implements and enforces Title IV of the ADA, which requires telephone and VoIP companies to provide a nationwide system of telecommunications relay services. TRS allows individuals who are deaf, hard of hearing, or deafblind, or have speech disabilities to communicate with others in a way that’s functionally equivalent to those without disabilities. And building off the success of TRS, the FCC has leveraged new developments in technologies for accessible communications, such as automatic speech recognition, videoconferencing, and real-time text."
With regard to Telecommunications Relay Services, I have previously written about Internet Protocol Captioned Telephone Service (IP CTS), a form of TRS that allows individuals with a hearing impairment to both read captions and use their residual hearing to understand a telephone conversation. As I said in this Free State Foundation Perspectives titled "Reforming the FCC's Internet Protocol Captioned Telephone Service Program": "Without doubt, the availability of IP CTS to those hearing impaired persons who need this form of assistance fulfills an important societal function." 
TRS services are intended to be functionally equivalent to the provision of voice communications services used by persons without disabilities. Section 225 of the Communications Act requires the Commission to ensure that telecommunications relay services, including IP CTS, are made available "to the extent possible and in the most efficient manner." To that end, in the September 2019 Perspectives, I urged the FCC to consider implementing certain reform measures that would help achieve the most cost-effective and efficient operation of the IP CTS program.
But, for today, I am pleased simply to highlight Chairman Pai's positive statement acknowledging the FCC's important role in making telecommunications services accessible to the hearing impaired.

Wednesday, July 22, 2020

Streamlining Wireless Collocations at Historic Sites Will Hasten 5G Deployment

On July 20, FCC Commissioner Brendan Carr announced that the Commission and officials responsible for preserving historic sites have reached an agreement to facilitate colocation of wireless facilities. The Second Amendment to the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas – or Collocation NPA – eliminates reviews under Section 106 of the National Historic Preservation Act for collocating or adding wireless equipment to existing towers. As Commissioner Carr's statement explains:   
Previously, a collocation project that involved any excavation outside of the current tower site would not qualify for the streamlined review process established by the Collocation NPA. That conflicted with the streamlined review process that applies when providers are taking down and replacing a wireless structure—a process that allows for deployment and excavation up to 30 feet outside of the existing site. Today's amendment resolves that inconsistency by bringing the Collocation NPA into conformance with the tower replacement review. 
Also on July 20, the Wireless Telecommunications Bureau released a Public Notice of the amended agreement, which will go into effect upon its publication in the Federal Register.

By this action the Commission and its partners clear away unnecessary and inconsistent regulatory obstacles to timely deployment of small cell technologies. Small cells are critical to 5G service and to American economic competitiveness. Credit goes to the Commission for a job well done. 

Tuesday, July 21, 2020

FCC Defends its Order on Effective Competition in the Video Services Market

On July 15, the FCC's legal brief was filed with the First Circuit in Massachusetts Department of Telecommunications and Cable v. FCC. The case involves a legal challenge to the Commission's LEC Test Order (2019). In that order, the Commission found that the "LEC Test" for determining whether local areas are subject to "effective competition" in video services can be satisfied by competition to incumbent cable operators from over-the-top (OTT) or online video services offering multi-channel video programming. Specifically, the order found that AT&T's streaming video service, which included 65+ channels, was comparable to Charter Communications' multichannel video programming distributor (MVPD) service. Thus, the order found that "effective competition" existed in the few localities in the U.S. still subject to local cable rate controls.  

The brief for the FCC ably defends the legal basis for the LEC Test Order and for the relief from local cable rate regulation that the Commission granted to Charter in the order. Hopefully, the First Circuit will take a similar view and uphold the order. The LEC Test Order is an important measure that cleared away costly legacy cable regulations that no longer make sense in today's competitive video marketplace, wherein cable MVPDs compete not only with direct broadcast satellite (DBS), but also against OTT services. 

My October 2019 Perspectives from FSF Scholars paper, "FCC Action Would Finally Eliminate Local Cable Rate Regulation," identified four positive results from the LEC Test Order: (1) removal of old rules that don't fit today's competitive video market; (2) establishment of regulatory parity between cable providers and competitors not subject to local rate regulation; (3) removal of burdens on the cable providers' editorial free speech rights; and (4) prevention of local authorities re-regulating cable rates. In an April 2019 blog titled "The Metaphysics of Video Competition," Free State Foundation President Randolph May first wrote about Charter' petition to the FCC for relief from local cable rate regulation in light of competition it faced from AT&T's nationwide streaming MVPD service, then called AT&T NOW. His October 2016 media advisory responding to the Commission's adoption of the LEC Test Order is available here. 

Monday, July 20, 2020

FCC Order Encourages Blocking of Bad Robocalls

At its July 17 public meeting, the FCC took its latest step to curb unwanted and unlawful robocalls. The Commission adopted an order to implement the TRACED Act by establishing rules for two safe harbors from legal liability for voice service providers that block robocalls that they believe are unwanted or harmful. Those legal safe harbors will encourage voice service providers to combat unwanted and unlawful robocalls. Paragraph 19 of the Commission's order sums up the action taken in its order:
[W]e adopt a safe harbor from liability under the Communications Act and our rules for terminating voice service providers that block calls based on reasonable analytics designed to identify unwanted calls, so long as those take into account information provided by STIR/SHAKEN (or, for non-IP based calls, any other effective call authentication framework that satisfies the TRACED Act) when such information is available for a particular call. And we establish a second safe harbor enabling voice service providers to block traffic from bad-actor upstream voice service providers that continue to allow unwanted calls to traverse their networks. Finally, we require that blocking providers furnish a single point of contact to resolve unintended or inadvertent blocking, and emphasize that, when blocking, they should make all reasonable efforts to ensure that critical calls, such as those from Public Safety Answering Points (PSAPs), are not blocked and that they should never block calls to 911. 
Importantly, the order includes provisions for allowing blocked callers to reach voice service providers and seek the undoing of blockages of legit calls. The point of the safe harbors is to incentive blocking of unwanted and illegal calls and thereby protect consumers – and not to censor speech. This is an important measure adopted by the Commission and hopefully will lead to the reduction of bad robocalls. 

Thursday, July 16, 2020

FCC Reluctantly Initiates T-Band Reallocation Process; Will Congress Intervene?

Newton's first law of motion states that "[a]n object at rest stays at rest and an object in motion stays in motion with the same speed and in the same direction unless acted upon by an unbalanced force."

The mandate set forth in the "Middle Class Tax Relief and Job Creation Act of 2012" that the FCC reallocate and auction the T-band? An object in motion. Congressional action to prevent that from happening? A much-needed unbalanced force.

Whatever motivated adoption of the T-band auction mandate eight years ago is of little concern today. What matters in 2020 is that first responders in a number of large metropolitan areas, including New York, Los Angeles, Chicago, Philadelphia, and Boston, depend upon the T-band (470-512 MHz) for mission-critical communications.

Also significant: the U.S. General Accountability Office (GAO) reports that, in many of these locations, there may not be alternative spectrum available to which first responders might relocate. And multiple agencies, including the FCC and the National Public Safety Telecommunications Council, have concluded that relocation costs, which could be as high as $6 billion, likely would far outweigh auction revenues.

That is why FCC Chairman Ajit Pai, when he recently renewed his call for federal legislation to repeal the T-band auction mandate, labeled it a "bad idea." Democratic Commissioner Jessica Rosenworcel said the same, "any way you cut it."

Nevertheless, the Commission's hands are tied, and so on July 6 it adopted a Notice of Proposed Rulemaking (NPRM) in order to initiate the process with sufficient time to meet the statutory deadline of February 22, 2021.

As the NPRM hopefully notes, however, "[b]ipartisan Congressional opposition ... has increased" and "[m]ultiple bills have been introduced that would repeal the T-Band Mandate."

One such piece of proposed legislation, the "Don't Break Up the T-Band Act of 2019" (H.R. 451), was approved by the House Energy & Commerce Committee earlier this week.

A companion bill (S.2748) was introduced in the Senate
 late last year.

The T-band auction mandate is a threat to public safety and a waste of limited agency resources. It is time for Congress to apply an equal and opposite force to stop its forward motion.

Wednesday, July 15, 2020

MEDIA ADVISORY: FCC C-Band Auction on Schedule


The following statement may be attributed to Free State Foundation President Randolph May:

“FCC Chairman Ajit Pai should be commended, especially given the circumstances during this period of COVID-19 disruptions, for his announcement today that he is proposing procedures for conduct of the C-Band spectrum auction this December. Repurposing of this mid-band spectrum is critical if the U.S. is to maintain its leadership role in deployment of 5G wireless networks. Hopefully, the full Commission will adopt the auction procedures at its August meeting, so the auction can go forward in December.”

Two Views on Making 3100-3550 MHz Band Spectrum Available

On July 6, NTIA released a report titled "Feasibility of Commercial Wireless Services Sharing with Federal Operations in the 3100-3550 MHz Band." The report's two primary findings are stated in the abstract:
First, the 3450-3550 MHz portion of this band is a good candidate for potential spectrum sharing, including at the commercial system power levels sought by the wireless industry. Second, although ultimately some sharing of spectrum below 3450 MHz may be possible as well, additional analysis of the entire band should be conducted to assess the various sharing mechanisms and the potential for relocating incumbents from some portion of the remainder of the band for commercial use. 
As Free State Foundation scholars have stressed, the U.S. is running a mid-band spectrum deficit compared to our nation's competitors. It is an economic imperative to repurpose as much mid-band spectrum as reasonably possible and as quickly as can be done in order to support 5G services and reap their benefits. As a general matter, licensed spectrum can be put to more economically valuable use and is to be preferred over shared spectrum

This blog post offers no opinion on the merits of NTIA's report. But for another viewpoint on this matter, consider FCC Commissioner Michel O'Rielly's remarks on future wireless bands from July 9 for the New Jersey & New York Wireless Associations' 2020 Update Webinar: 
We cannot afford to rest on our laurels or stop working hard to bring other bands into the spectrum pipeline. Almost all experts agree that the Commission must find upwards of 500 to 800 megahertz of additional spectrum for licensed commercial purposes in the next three to five years. I’ll throw out a couple to consider.  Top of the list of next bands is 3.1 to 3.55 GHz. It currently houses a number of Department of Defense radar systems and has been identified by Congress for possible commercial purposes. I have made the argument that, of this 450 megahertz block, upwards of 200 must be cleared and go towards meeting our insatiable demand for licensed spectrum. I know the upper 100 can be repurposed without much heartburn, and we can work through the second 100 the same way. As for the remaining 250 megahertz in the lower portion of the band, the bulk of it, at a minimum, must be shared, as in the 3.5 GHz tiered structure of priorities. This would protect the DoD purposes while opening these portions to 5G services as well. 

Tuesday, July 14, 2020

FCC Proposes Leased Access Update, But First Amendment Problem Remains

At its July 16 public meeting, the FCC will vote on a proposed order that would make updates to its commercial leased access rules. The proposed order would bring the rules into closer alignment with actual market values for cable channels and reduce burdens on cable operators. As far as they go, these changes make sense and they ought to be approved by the Commission. If adopted, however, the order would sidestep the glaring First Amendment problems posed by cable leased access regulation. 

Commercial leased access rules require cable operators to lease channel capacity to independent video programmers at government-set rates. Under the proposed order, leased access rates would be set according to a tier-based calculation intended to approximate the actual value of the leased channels. Also, maximum fees that cable operators may charge independent video programmers for leased access would be calculated annually based on contracts in effect the prior year. Apparently, these changes would reduce regulatory burdens on cable operators. Commission deserves credit for proposing these updates to the old rules.

But the First Amendment problem with cable leased access regulation remains. On the one hand, the FCC's proposed order acknowledges that significant changes have taken place in the video marketplace over the several years since the constitutionality of the cable leased access regime was upheld. Those changes put the constitutionality of leased access regulation in doubt. On the other hand, the proposed order agrees that "it is not the role of the Commission to adjudicate in the first instance the constitutionality of leased access requirements that have been mandated by Congress," so it offers no opinion on the First Amendment issue.  

As Free State Foundation President Randolph May and I explained in our July 2019 comments to the FCC in its commercial leased access proceeding, leased access regulation is an unconstitutional "forced speech" mandate. Such regulation infringes on the First Amendment editorial rights of cable operators over what video programming they will carry and how much they can charge for content they may not want to carry. Supposed "bottlenecks" in the distribution pathways for video programming in the late 1980s and early 1990s provided the basis for upholding leased access regulation. Those bottlenecks do not exist in today's competitive video marketplace. Strict scrutiny is now the proper constitutional standard for evaluating cable leased access regulation. But there is no compelling government interest in regulating or limiting the editorial discretion of cable operators to program their services as they wish, and so cable leased access regulation fails strict scrutiny. 

Although the FCC may believe that its limited role prevents it from doing away with leased access regulation, that should in no way inhibit members of Congress or the courts from acting within their own roles to address the glaring First Amendment problem with cable leased access regulation. 

Friday, July 10, 2020

Ookla Reports Speed Increases for U.S. Fixed and Mobile Broadband

On July 8, Ookla released its "Q2 2020 Speedtest® United States Market Report." According to Ookla:
[M]edian download speed over mobile in the U.S. increased 15.8% between Q2 2019 and Q2 2020 to 29.00 Mbps. The median upload speed for mobile was 5.74 Mbps, down 15.2% from Q2 2019. 
Median download speed over fixed broadband increased 19.6% during the last year to 86.04 Mbps in Q2 2020, and median upload speed increased 1.5% to 11.86 Mbps in Q2 2020.
In the wake of the COVID-19 outbreak and government lockdowns, these reported speed increases are welcome news. They also go to show the soundness of the FCC's pro-investment, pro-deployment, light-touch regulatory approach to broadband Internet access services.
Additionally, Ookla's report contains interesting comparative figures for fixed and wireless broadband Internet services according to speed and other metrics. This includes comparisons of 5G speeds and 5G device availability. 

Thursday, July 09, 2020

Supreme Court Strikes Down Exemption from TCPA's Robocaller Ban

On July 6, the U.S. Supreme Court released its decision in Bar v. AAPC. Although significantly divided, enough Justices could agree that the robocall ban exemption bestowed on government debt collection in 2015 was unconstitutional under the First Amendment. But the Court severed the exemption for government debt collection from the rest of the Telephone Consumer Protection Act of 1991 and upheld the remainder of the Act. In so doing, the Court rejected the Petitioners' interesting First Amendment equal treatment claim that the robocall ban should have been lifted entirely and all robocalls allowed. 

Free State Foundation President Randolph May and I have addressed problems involving other aspects of the TCPA that merit action by the FCC in prior Perspectives from FSF Scholars papers, available here and here.

Wednesday, July 08, 2020

Petitioners Decline to Seek Supreme Court Review of Mozilla v. FCC

On July 7, John Eggerton reported at Multichannel News that the Petitioners in Mozilla v. FCC have decided against seeking review of the D.C. Circuit's 2019 decision that decision upheld most of the FCC's Restoring Internet Freedom Order (2018). Although the D.C. Circuit upheld the order's reclassification of broadband Internet access services as "information services" under Title I of the Communications Act, it vacated the order's express Preemption Directive regarding state and local laws and regulations that conflict with the FCC's light touch, free market policy regarding interstate information services.

Expect attention to return to pending litigation over state laws and executive orders that seek to impose net neutrality regulation and more at state level. This includes the pending lawsuit over California's 2018 net neutrality law. In a Perspectives from FSF Scholars paper titled "Express and Conflict Preemption of State Net Neutrality Efforts," Prof. Daniel Lyons, a member of the FSF Board of Academic Advisors, helpfully analyzed preemption principles and explained why most or all state net neutrality regulations fail under conflict preemption doctrine. Also, Free State Foundation President Randolph May and I made a principled case for preemption in an article published in the Federalist Society Review titled "John Marshall's Jurisprudence Supports Preemption of California's Net Neutrality Law." 

Tuesday, July 07, 2020

Ericsson Mobility Report Forecasts Future Growth of LTE and 5G

The June 2020 edition of the Ericsson Mobility Report has just been released. The report contains growth projections for 5G subscriptions and mobile traffic on both mobile wireless networks and fixed wireless networks through 2025. 

Among the report's forecasts:
  • Global 5G subscriptions will top 190 million by the end of 2020 and reach 2.8 billion by the end of 2025. 
  • Fixed wireless access (FWA) connections will grow threefold and reach close to 160 million by the end of 2025 – comprising 25% of global mobile network data traffic. 
  • Mobile traffic will grow 31% annually between 2019 and 2025.
  • Video traffic in mobile networks will grow by around 30% annually up to 2025, and it will account for nearly 75% of mobile data traffic – up from about 60% in 2019.
  • "LTE will remain the dominant mobile access technology by subscription during the forecast period. It is projected to peak in 2022 at 5.1 billion subscriptions and decline to around 4.4 billion subscriptions by the end of 2025 as more subscribers migrate to 5G."
  • VoLTE [Voice-over-LTE] subscriptions will reach 3 billion at the end of 2020 and 6.4 billion by the end of 2025, accounting for almost 90% of all combined LTE and 5G subscriptions.

The latter forecast is important because, as the report observes: "VoLTE (using IP Multimedia Subsystem, or IMS) is also the foundation for enabling 5G voice calls, SMS, rich communications services (RCS), and new communication services on 5G devices."

The report also includes a couple noteworthy forecasts for North America:
  • "North America’s LTE penetration is currently 92 percent, which is the highest share globally."
  • "By the end of 2025, we anticipate close to 325 million 5G subscriptions in the region, accounting for 74 percent of mobile subscriptions." 
  • Mobile data traffic per smartphone will climb from 8.5 GB per month in 2019 to 45 GB per month in 2025, a 32% compound annual growth rate. 

Friday, July 03, 2020

Independence Day 2020

To be sure, every Independence Day ought to be an exercise in memory, and a recommitment to America's fundamental ideals that the Declaration of Independence proclaims to be self-evident Truths.

And to be sure as well, on the day of the Declaration's adoption on July 4, 1776, when the Founders signed the parchment proclaiming "all Men are created equal, that they are endowed by their Creator with certain unalienable Rights," many of those signing were slaveholders, including Thomas Jefferson, the Declaration's principal drafter.

So, of course, there was a glaring gap on that July day between the reality of life in America with regard to race and the ideal of equality embodied in the Declaration of Independence.

This year, as we celebrate Independence Day, I suspect, in light of what has occurred in the aftermath of George Floyd's death, that many Americans will think somewhat more deeply about the meaning of the Declaration's affirmation that all men are created equal. It is undeniable that a part of our American story has been stained by racial oppression. But it is also undeniable that an important part of our story includes an ongoing struggle to overcome such oppression.

Both propositions are true. We can be ashamed of one, and proud of the other. And we can draw inspiration for coming together as Americans if we embrace the ideals expressed in the Declaration, notwithstanding the fact that its principal author held men in bondage in contravention of those ideals.

Today's rush to mindlessly, and at times lawlessly, tear down statues and deface memorials, including those dedicated even to the memories of Jefferson and Lincoln, is wrong. In seeking to erase or "cancel" from our collective memory those parts of our American story that constitute grievous wrongs, there is a real risk that historical signposts and markers that ought to be engrained in our collective memory as timeless guideposts will be sacrificed as well.

So it is with the Declaration of Independence.

On October 16, 1854, Abraham Lincoln delivered a famous speech in Peoria, Illinois, arguing against the extension of slavery permitted by the Kansas–Nebraska Act passed by Congress earlier in the year. Lincoln was out of politics at the time, but many credit his Peoria anti-slavery speech with the beginning of his preparation for his subsequent presidential campaign.

In Peoria, Lincoln grounded his argument against the extension of slavery, and later in arguing for its abolition, squarely on the words of the Declaration:

"[N]o man is good enough to govern another man, without the other's consent. I say this is the leading principle – the sheet anchor of American republicanism. Our Declaration of Independence says:

'We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.'

I have quoted so much at this time merely to show that according to our ancient faith, the just powers of government are derived from the consent of the governed. Now the relation of masters and slaves is, PRO TANTO, a total violation of this principle. The master not only governs the slave without his consent; but he governs him by a set of rules altogether different from those which he prescribes for himself. Allow ALL the governed an equal voice in the government, and that, and that only is self-government." [Capitalization in the original]

Invoking the Declaration's equality precept over and over again, Lincoln pleaded: "Let us re-adopt the Declaration of Independence, and with it, the practices, and policies, which harmonize with it."

Frederick Douglass was the principal speaker at the dedication on April 14, 1876, of the memorial, now known as the Emancipation Memorial, in Lincoln Park, in Washington, DC. A plaque on the monument, which was funded by donations from emancipated slaves, reads: "Freedom's Memorial in grateful memory of Abraham Lincoln."

In his dedication oration, Douglass readily acknowledged Lincoln's complexities, including many of his statements that displayed a racial bias. But he also acknowledged this about Lincoln: "Though the union was more to him than our freedom or our future, under his wise and beneficent rule we saw ourselves gradually lifted from the depths of slavery to the heights of liberty and manhood."

And this from Martin Luther King's famous "I Have a Dream" speech delivered on August 28, 1963, on the steps of the Lincoln Memorial, is worth remembering:

"When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was the promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness."

The Fourth of July is a time to celebrate the Declaration of Independence and the self-evident Truths "that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness." That these words were written by a flawed man – and who among us is not? – does not mean that they nevertheless should not inspire us today, as Lincoln put it, to be touched by "the better angels of our nature."

Best wishes for a safe, healthy, joyous, and meaningful Independence Day!

PS – My previous Independence Day messages are here: 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, and 2019