Wednesday, September 30, 2020

Appointment of New Register of Copyrights Announced

On September 21, Shira Perlmutter was appointed as Register of Copyrights and director of the U.S. Copyright Office. 

According to the Copyright Office's announcement, Ms. Perlmutter will assume the role of Register in late October. Congratulations to Ms. Perlmutter on her appointment. 


Free State Foundation Randolph May and I provide a brief history of the Copyright Office and recommend structural reforms for the Office in chapter 7 of our new bookModernizing Copyright Law for the Digital Age – Constitutional Foundations for Reform.

Tuesday, September 29, 2020

Proposed Legislation Would Incorporate Price Tags, and Economic Rigor, into Government Spectrum Discussions

Spectrum is in increasingly short supply. Especially mid-band spectrum. My fellow Free State Foundation scholars and I have highlighted wireless industry reports indicating that, absent additional spectrum clearing, the United States is at risk of falling behind other nations in making more available, in particular for 5G. The most likely source? Frequencies currently allocated to government agencies.

Legislation introduced by Senator Mike Lee (R-UT) would facilitate difficult discussions regarding whether government spectrum is being put to its best and highest use by directing NTIA to determine its real-world monetary value. That, in turn, would infuse the process with greater transparency and data-driven analysis.

The federal government, led by the Department of Defense, has exclusive or primary use of the majority of spectrum between 225 MHz and 3.7 GHz. In 2012, the President's Council of Advisors on Science and Technology (PCAST) found that "nearly 60% of … beachfront frequencies are predominantly allocated to Federal uses, a statistic that illustrates the importance of finding more effective mechanisms to share Federal spectrum."

Sen. Lee's bill, the Government Spectrum Valuation Act (S. 1626), champions a market-oriented approach. By directing NTIA to assign dollar values to government-held spectrum, it would enable quantitative comparisons between private and public allocations. In addition, by including those amounts within agencies' budgets, it would provide them with economic incentives to relinquish underutilized capacity in order to secure funding for higher priority initiatives.

In the commercial realm, market forces reveal the value of spectrum. Commission-led auctions, such as the one scheduled to take place this December for 280 MHz of high-value mid-band spectrum in the C-Band, afford interested parties the opportunity to bid competitively on scarce resources. The highest bidders prevail, and the dollar amounts they agree to contribute to the Treasury establish what the spectrum is worth.

But that is not the case with government spectrum, which in many cases was allocated years ago and under vastly different – and much less efficient – technological circumstances. As Visiting Scholar Gregory J. Vogt explained in a recent Perspectives from FSF Scholars, "Coordinated Government Decisionmaking on Spectrum Issues: It's Vital to Locating More Spectrum for 5G Use":

There is a significant "opportunity cost" associated with government spectrum, which is defined as the loss of potential benefits when a suboptimal alternative is chosen over one that would generate higher consumer welfare. In May 2015, Coleman Bazelon and Guilia McHenry estimated the economic value of 645.5 MHz of licensed spectrum in the hands of government users was $455 billion. If this spectrum was auctioned off to commercial users, it would generate about $1.7 trillion in 2015 dollars in economic activity.

Indeed, as Sen. Lee noted when he introduced the Government Spectrum Valuation Act, "because federal agencies pay such a minimal fee to NTIA for their allocations – absent of a market-based allocation – they have little incentive to share spectrum or make it available for commercial use."

Nor are policymakers able to make objective, apples-to-apples comparisons between commercial and government allocations. They might have imperfect information as to what that spectrum would fetch on the open market, but the other side of the balance – its true and full value to government users – often is unknown.

(To be sure, government spectrum plays an important role, including in our national defense, that in certain instances cannot be made public. The legislation as proposed would allow NTIA to consider, and require it to keep confidential, "classified, law-enforcement sensitive, or proprietary information" relevant to the assigned dollar value.)

To address this, the Government Spectrum Valuation Act would require NTIA to work with the FCC and the Office of Management and Budget (OMB) to estimate the value of spectrum. Such valuations would be based "on the value that the electromagnetic spectrum would have if the spectrum were reallocated for the use with the highest potential value of licensed or unlicensed commercial wireless services that do not have access to that spectrum as of the date of the estimate."

It also would direct NTIA to "consider the spectrum needs of commercial interests while preserving the spectrum access necessary to satisfy mission requirements and operations of Federal entities."

The bill would establish the following schedule pursuant to which NTIA must complete its valuations:

  • 3 KHz to 33 GHz: within 1 year and every 3 years thereafter
  • 33 GHz to 66 GHz: within 2 years and every 3 years thereafter
  • 66 GHz to 95 GHz: within 3 years and every 3 years thereafter

It is worth pointing out that FCC Commissioner Michael O'Rielly repeatedly has advocated for a similar approach, noting in 2018 that "requiring U.S. Government agencies to put a market price on their spectrum holdings will fix a budgetary anomaly and promote overall spectrum efficiency by incentivizing each agency to release unneeded spectrum."

Although Sen. Lee unveiled the Government Spectrum Valuation Act back in May 2019, it has been the recent subject of renewed focus. Representatives Cathy McMorris Rodgers (R-WA) and Yvette Clarke (D-NY) introduced companion legislation in the House on September 14, 2020. Two days later, the Senate Commerce Committee voted to approve Sen. Lee's version. That bill now is before the full Senate.

Then-NTIA Administrator David Redl stated in 2019 that, "[i]f we're being honest, the era of easy spectrum decisions is over." Passage of the Government Spectrum Valuation Act would facilitate that process by assigning specific dollar values to government spectrum, thereby enabling policymakers to make rational, informed decisions regarding its best and highest use.

Monday, September 28, 2020

House Judiciary Committee to Review Report on DMCA's Section 512

On September 30 at noon EST, the U.S. House Judiciary Committee will hold a hearing on "Copyright and the Internet in 2020: Reactions to the Copyright Office's Report on the Efficacy of 17 U.S.C. § 512 After Two Decades."   

Free State Foundation President Randolph May and I addressed the need for updating Section 512 of the Digital Millennium Copyright Act in our new bookModernizing Copyright Law for the Digital Age - Constitutional Foundations for Reform. Section 512 includes a "notice-and-takedown" provision that allows complying online platforms to receive safe harbor from legal liability when their users upload copyrighted content to their websites. We offered further analysis of this topic -- and the findings of the U.S. Copyright Office -- in our June 2020 Perspectives from FSF Scholars paper, "Copyright Office Report Should Spur Modernizing the DMCA." As our Perspectives paper stated: 

The Copyright Office's report is a helpful starting point for legislative reforms needed to better protect movies, TV shows, sound recordings, and other content from infringements that cost U.S. copyright owners hundreds of millions of dollars each year. A series of amendments to Section 512 are needed to correct court decisions that have put undue burdens on copyright owners, departed from common law standards for secondary liability, and reduced accountability of online service providers for infringing content posted by users of their sites.

The sweeping number of changes that ought to be considered to modernize Section 512 makes a strong case for a legislative overhaul of the DMCA. Congress should exercise its prerogative to explore reforms beyond those contained in the report, consistent with the Constitution's entrusting Congress with the power to secure copyrights. Such reforms should include, for instance, a more widespread "notice and stay down" requirement when copyright owners submit formal takedown notices and future postings of that same infringing content are posted on the same sites.

For more details, check out our new book and our Perspectives paper.

Sunday, September 27, 2020

Interested in Ad Law? Check Out CRE"s Regulatory Perspectives

Periodically, I like to remind those that are interested in the administrative state and administrative law and regulation to check out the Center for Regulatory Effectiveness (CRE) website and especially its Regulatory Perspectives page

Always some useful material for those interested in ad law and regulatory perspectives. CRE is run by Jim Tozzi, one of the real "godfathers" -- in a good sense! -- of a centralized regulatory review process for the executive branch and the use of cost-benefit analysis.

Thanks to Jim for all he's done and continues to do in the interest of good government.

Friday, September 25, 2020

Privacy Recap: Senate Commerce Committee Holds Hearing, Republican Members Introduce SAFE DATA Act

There have been two recent developments of note on the topic of privacy at the federal level, specifically before the Senate Committee on Commerce, Science, & Transportation.

First, on September 17, Committee Chair Roger Wicker (MS), along with three fellow Republican members (John Thune (SD), Deb Fisher (NE), and Marsha Blackburn (TN)), introduced the Setting an American Framework to Ensure Data Access, Transparency, and Accountability (SAFE DATA) Act.

The SAFE DATA Act is a revised and expanded version of a November 2019 staff discussion draft that I summarized in a Perspectives from FSF Scholars, "Federal Privacy Legislation: Bipartisan Discussions Devolve into Dueling Drafts."

The bill formerly known as the United States Consumer Data Privacy Act "has been updated to clarify definitions, expand the scope of data that is covered under the bill, and protect consumers from being manipulated by algorithms used by online platforms."

With respect to this last point, it incorporates language from the Filter Bubble Transparency Act introduced by Senator Thune and the Deceptive Experiences To Online Users Reduction (DETOUR) Act introduced by Senator Mark Warner (D VA).

It also appropriates $100 million to the FTC to carry out its provisions and authorizes the agency to obtain monetary relief on behalf of consumers for violations of the FTC Act.

Second, the Commerce Committee on September 23 held a hearing on the topic of privacy. Witnesses at "Revisiting the Need for Federal Data Privacy Legislation" included:

  • Julie Brill, former FTC Commissioner and current Corporate Vice President, Chief Privacy Officer, and Deputy General Counsel for Global Privacy and Regulatory Affairs at Microsoft Corporation;
  • William Kovacic, former FTC Chairman and Commissioner and current Director of the George Washington University Competition Law Center;
  • Jon Leibowitz, former FTC Chairman and Commissioner, now an attorney at Davis Polk & Wardwell LLP and co-chair of the 21st Century Privacy Coalition;
  • Maureen Ohlhausen, former FTC Commissioner and Acting Chairman, now a partner at Baker Botts L.L.P.; and
  • Xavier Becerra, California Attorney General.

Among other things, the hearing focused on the heightened need for federal privacy legislation in light of the COVID-19 pandemic and the effectiveness of the California Consumer Privacy Act (CCPA) and its implementing rules.

Press reports indicate that, while a private right of action and preemption of state laws continue to serve as sticking points, lawmakers instead emphasized those areas upon which they agree. Nevertheless, it remains to be seen whether Congress will act this year.

Thursday, September 24, 2020

USTelecom Report on Broadband Documents Price Reductions, Speed Increases

USTelecom – The Broadband Association recently released a report comparing 2015 broadband pricing and speeds to those available today. "2020 Broadband Pricing Index: An Analysis of Decreasing Prices and Increasing Value for Broadband Service Over Time," as its name suggests, finds that "Americans are paying less today for broadband services that are significantly more capable than they were five years ago."

A few highlights:
  • The price of the most popular broadband service tier is 20.2 percent lower in 2020 than it was in 2015 – and 28.1 percent lower when inflation is taken into account.
  • Savings are even greater for the highest-speed tier: 37.7 percent (and 43.9 percent when inflation is considered).
  • Speeds, meanwhile, have increased, by 15.7 percent for the most popular offering and 27.7 percent for the highest-speed offering.

All of this is made possible by the $70-80 billion that providers invest annually in broadband infrastructure.

And while these statistics make plain that broadband is far more affordable than in the past, USTelecom at the same time acknowledges that there is more work to be done by government and private stakeholders to remove obstacles to adoption.

As I noted in a previous post, USTelecom is a partner in the "K-12 Bridge to Broadband" initiative, which works with school districts to identify, and connect at discounted rates, the 30 percent of students who lack the connectivity necessary to participate in remote learning during the COVID-19 pandemic.

The full report, authored by Arthur Menko, founder, Telcodata and Business Planning, Inc., is available here.

Wednesday, September 23, 2020

FCC Proposal Will Help Increase Mid-Band Spectrum for 5G

At its September 30 public meeting, the FCC is set to consider a report and order and notice of rulemaking that will help free up 100 MHz of spectrum in the 3.45-3.55 GHz band for shared use with government users. The draft report and order would thereby enable commercial 5G services to operate in this important slice of mid-band spectrum.

Prior blog posts have highlighted a recent report by Boston Consulting Group and another report by Analysys Mason that call attention to the pressing need for more spectrum availability for 5G. The draft report and order is precisely the type of action the Commission ought to undertake to meet that pressing need for mid-band spectrum. This blog expresses no view on different proposals for fine-tuning the draft report and order that the Commission will be voting on. But this blog strongly supports the FCC voting to approve the steps needed to put this valuable 100 MHz of mid-band spectrum into shared use for commercial 5G services. 


As explained in the Free State Foundation's comments to the Commission in its current Section 706 proceeding on broadband deployment progress, in addition to adopting its pending proposal on the 100 MHz, the agency should "[a]lso identify as much additional spectrum within the 3.1-3.45 GHz band as may reasonably be reallocated for licensed commercial usage. Once it has done so, the Commission should undertake efforts that will be needed to relocate existing users and free up that spectrum for public auction." Also worth serious consideration, as noted in a February 2019 blog, is a report by Analysis Group that identified the hugely positive potential economic impact of reallocating 400 MHz of licensed mid-band spectrum between 3.45 and 4.2 GHz. 

Tuesday, September 22, 2020

Federal Policy Should Promote 5G Deployment by Market Providers

Monday, September 21, 2020

Court Rules that Berkeley's "Overwarning" Ordinance on RF Emissions is Preempted

On September 17, the U.S. District Court for the Northern District of California ruled that a 2015 City of Berkeley ordinance requiring retailers to provide specific warning labels regarding cellphone radio frequency (RF) emissions for point-of-sale purchases is preempted by the FCC's regulatory actions. 

After analyzing the Commission's 2019 RF Order as well as the agency's Statement of Interest filed in the case, the District Court concluded:  

Given the specificity of the warning required by the Berkeley ordinance, the implied risk to safety if the warning is not followed (a risk the FCC has concluded does not exist), and the acknowledged 'controversy concerning whether radio-frequency radiation from cell phones can be dangerous if the phones are kept too close to a user's body over a sustained period,'… the FCC could properly conclude that the Berkeley ordinance – as worded – overwarns and stands as an obstacle to the accomplishment of balancing federal objectives by the FCC.

The District Court's ruling in Berkeley v. CTIA applied Skidmore deference rather than Chevron deference to both the 2019 RF Order and the Statement of Interest. The court held that even by according to the less deferential standard the Berkeley ordinance conflicted with federal policy articulated by the Commission. Along the way, the court provided an insightful analysis of conflict preemption doctrine, savings provisions, and the Third Circuit's 2010 decision in Farina v. Nokia. For more on this case, see my blog post from June.  

Friday, September 18, 2020

FCC Streamlines its Administrative Hearings Process

 On September 14, the FCC adopted a report and order to streamline its procedures for administrative hearings. The Commission's report and order does three main things:

(1) codify and expand the use of a process that relies on written testimony and documentary evidence in lieu of live testimony and cross-examination; (2) authorize Commission staff to act as a case manager to supervise development of the written hearing record when the Commission designates itself as the presiding officer at a hearing; and (3) dispense with the preparation of an initial opinion whenever the record of a proceeding can be certified to the Commission for final decision. 

The report and order is intended to "expedite and simplify the Commission’s hearing processes" consistent with the Communications Act and Administrative Procedure Act "while safeguarding the rights of parties to a full and fair hearing. The report and order is based on a proposal that was the subject of a short blog from September 2019. 

Thursday, September 17, 2020

Constitution Day 2020 and Copyrights

Today, September 17, is Constitution Day. Two hundred thirty-three years ago this day, the proposed Constitution of 1787 was signed by the Philadelphia Convention delegates assembled at Independence Hall. As Free State Foundation President Randolph May and I pointed out in our 2018 op-ed, "A Constitution Day Call to Strengthen Copyright Protection," the only express provision for individual rights contained in the Constitution of 1787 is the Article I, Section 8 Intellectual Property Clause – also known as the Copyrights Clause.  

FSF President Randolph May and I give a more detailed account of this in our book, The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective. In the view of the American Founders, copyrights are rooted in individuals' natural rights to the fruits of their labors – in this case, their creative labors. And government exists to protect and enlarge rights to acquire, use, and transfer property, including property in creative works. 

We build on those principled themes and make a case for strengthening copyright protections today in our new book, Modernizing Copyright Law for the Digital Age: Constitutional Foundations for Reform. Today, it's fitting to remember that Congress's ongoing responsibility for securing copyrights is based on the high authority of U.S. Constitution. 

Modernizing Copyright Law for the Digital Age is available through Amazon (here) and through Carolina Academic Press (here).

Wednesday, September 16, 2020

Report Emphasizes Building Blocks for the US 5G Economy

A report by Boston Consulting Group titled "Building the US 5G Economy" gives a fresh perspective on next-generation wireless network deployment and the most critical focus areas for policymaking to ensure that our nation thrives. The report was released on September 13. A primary factor for future US 5G success that the report identifies is:

Spectrum Availability. A transparent, market-based auction schedule for 5G spectrum, with an emphasis on cleared, licensed midband airwaves, will allow spectrum to be made available to service providers as soon as possible.

Additionally, the report identifies streamlined permit processes to speed wireless infrastructure build-out as well as subsidies targeted to 5G network expansion in rural areas. The report is available at CTIA's website.

Monday, September 14, 2020

MEDIA ADVISORY: The FCC Should Be Commended for Holding ORAN Forum

Regarding the FCC's forum today regarding ORAN (open radio access networks), the following statement may be attributed to Free State Foundation President Randolph May: 

The FCC should be commended for holding the forum today exploring ORAN, what it means, and what it may portend for the future. Even discounting the usual hype accompanying new technological advances and business models, ORAN, properly understood, holds the promise to promote increased marketplace competition and innovation, and, at the same time, promote U.S. national security by increasing supply chain diversity. ORAN could be a case in which technological advances associated with 5G, artificial intelligence, and virtualization, and changing business models, advance freedom in both the economic and geopolitical spheres. But this should be done largely in a context of private sector decision-making with minimal direct government intervention and mandates.

Friday, September 11, 2020

Cable Industry Expands Distance Learning Support with "K-12 Bridge to Broadband"

As part of the cable industry's commitment to support of distance learning, NCTA – The Internet & Television Association (NCTA), in conjunction with EducationSuperHighway (ESH), yesterday announced the "K-12 Bridge to Broadband" public-private initiative to increase home connectivity opportunities for students during the COVID-19 pandemic. USTelecom and NTCA also are partners in this effort.

According to ESH, a national non-profit, nearly 10 million students, half of whom are of color, lack Internet access. As a result, they risk falling behind as schools, in response to the health risks posed by the novel coronavirus, shift in part or entirely to distance-learning models. The goal of "K-12 Bridge to Broadband," therefore, is to "identify and potentially connect students in low-income families, enabling more students to participate in remote or hybrid learning."

In a press release, FCC Chairman Ajit Pai "thank[ed] NCTA and the EducationSuperHighway for launching this initiative to make it easier for students in low-income families to connect to the Internet."

"K-12 Bridge to Broadband" builds upon, and expands nationwide, recent successful partnerships between cable operators and school districts in cities that include Chicago, Atlanta, Philadelphia, Las Vegas, and Des Moines.

Pursuant to the announced framework of core principles, participating cable broadband providers will:

  • Create a “sponsored” service offering that school districts can purchase at a discounted rate on behalf of low-income students;
  • Work with school districts to identify students lacking access while also protecting participant privacy and the confidentiality of provider records;
  • Agree to a baseline set of eligibility standards that covers, at a minimum, households with students participating in the federal Free and Reduced Lunch program;
  • Minimize the amount of information families must provide in order to maximize adoption; and
  • Agree not to use school-provided information for the targeted marketing of unrelated services.

The "K-12 Bridge to Broadband" builds upon existing cable industry efforts to support distance learning, which include:

Wednesday, September 09, 2020

FCC to Consider Actions Against 911 Fee Diversion

In anticipation of its September 30 public meeting, the FCC has released a draft Notice of Inquiry on ways to combat states' diversion of 911 fees to things that are unrelated to non-911 purposes. The Commission's Fact Sheet states that "between 2012 and 2018, American states and jurisdictions diverted a total of over $1.275 billion in 911 fees to non-911 programs or to the state’s general fund." Annual reports by the Commission call out those states and jurisdictions that apparently misuse fee revenues collected for 911. And the Commission previously has mulled penalties for states that divert 911 fees, including disqualification from grants or other subsidies. Chairman Ajit Pai is to be applauded for circulating the draft Notice. It's a step forward for ensuring that 911 fees are actually used for their stated purpose.   

Monday, September 07, 2020

Labor Day 2020

Abraham Lincoln is not often associated with, or quoted on, Labor Day, a holiday first observed a quarter century after his assassination. But there is good reason, especially now but for all seasons, to consider Lincoln's views on what, before the Civil War, was called the "free labor" movement.


An integral part of the anti-slavery "Free Soil" movement was rooted in a "free labor" philosophy. Here is how prize-winning historian Eric Foner put it in Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War:


For the concept of ‘free labor’ lay at the heart of the Republican ideology, and expressed a coherent social outlook, a model of the good society. Political anti-slavery was not merely a negative doctrine, an attack on southern slavery and the society built upon it; it was an affirmation of the superiority of the social system of the North—a dynamic, expanding capitalist society, whose achievements and destiny were almost wholly the result of the dignity and opportunities which it offered the average laboring man.


In his Gettysburg Address, Lincoln famously called for a "new birth of freedom." Given his background and his philosophical grounding in "free labor," anti-slavery principles, which he consistently related to the Declaration of Independence's ideals, it is not surprising that Lincoln often joined freedom to an individual's natural right to enjoy the fruits of his own labor. For Lincoln, such right was inherent in the Declaration's self-evident truth that all men are endowed with the unalienable right to "Life, Liberty, and the Pursuit of Happiness."


In many of his addresses, including as far back as 1847 speaking at a Whig event, Lincoln said this, usually in more or less the same words:


I believe each individual is naturally entitled to do as he pleases with himself and the fruit of his labor, so far as it in no wise interferes with any other man’s rights and that the general government, upon principle, has no right to interfere with anything other than that general class of things that does concern the whole.

As often, Lincoln reminded his audiences that, "I always thought the man that made the corn should eat the corn."


This colloquial Lincolnian expression is stated in a decidedly less philosophically formal fashion than John Locke's famous injunction contained in his Second Treatise of Government:


[E]very man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.


As President, Lincoln affirmed this Lockean view of labor in his Reply to the New York Workingmen's Democratic Republican Association in 1864:

Property is the fruit of is a positive good in the world. That some should be rich shows that others may become rich, and hence is just encouragement to industry and enterprise. Let not him who is houseless pull down the house of another; but let him labor diligently and build one for himself….


As my Free State Foundation colleague Seth Cooper and I show in our book, The Constitutional Foundations of Intellectual Property, Lincoln's views regarding free labor and property rights extended to protection of intellectual property as well. In Chapter 10, "Adding Fuel to the Fire of Genius: Abraham Lincoln, Free Labor, and the Logic of Intellectual Property," from which much of this special message is drawn, we discuss Lincoln's 1859 Address to the Wisconsin State Agricultural Society, where he said this:


The prudent, penniless beginner in the world, labors for wages awhile, saves a surplus with which to buy tools or land, for himself; then labors on his own account another while, and at length hires another new beginner to help him. This, say its advocates, is free labor – the just and generous, and prosperous system, which opens the way for all – gives hope to all, and energy, and progress, and improvement of condition to all.


As we celebrate Labor Day in 2020, at a time when many in America seek to divide us based on all manner of discrete "identities," including race, gender, religion, and class, it is worth taking more than a moment to reflect on Lincoln's understanding of the importance of the "free labor" concept, and especially its integral relationship to a proper understanding of property rights, and of freedom itself.


On Labor Day, and every day, we should never forget the dignity that is inherent in an individual's natural right to enjoy the fruits of his or her own labor – and as Eric Foner put it, free labor's central role in America's "dynamic, expanding capitalist society, whose achievements and destiny were almost wholly the result of the dignity and opportunities which it offered the average laboring man."


And an important postscript: It is especially important – you could say essential – to acknowledge the extraordinary contributions of so many "essential workers" who, in so many ways, have provided and maintained many crucial services during the pandemic. Thanks to these special individuals who have labored for the benefit of us all.

Wednesday, September 02, 2020

Court Decision Will Advance 5G Network Deployment

On August 12, the 9th Circuit issued its decision in City of Portland v. FCC, in which it upheld three important Commission orders involving wireless infrastructure. The Commission's Moratoria OrderSmall Cell Order (upheld except for provisions regarding aesthetic requirements), and its One-Touch-Make-Ready Order removed regulatory obstacles wireless infrastructure siting, particularly for small cells, and similarly removed obstacles for pole attachments involving cellular networks. 

Among other things, the 9th Circuit's decision rejected arguments that the Small Cell and Moratorium Orders are contrary to circuit precedent and agency precedent regarding Section 253(a)'s provision that "[n]o state or local statute or regulation… may prohibit or have the effect of prohibiting… telecommunications service." It wrote:

The FCC's application of its standard in the Small Cell and Moratoria Orders is consistent with Sprint [Telephony PCS, L.P. v. County of San Diego (2008)(en banc)], which endorsed the material inhibition standard as a method of determining whether there has been an effective prohibition. The FCC here made factual findings, on the basis of the record before it, that certain municipal practices are materially inhibiting the deployment of 5G services. Nothing more is required of the FCC under Sprint... 

The FCC has explained that [the agency's 1997 California Payphone Association Order] applies a little differently in the context of 5G, because state and local regulation, particularly with respect to fees and aesthetics, is more likely to have a prohibitory effect on 5G technology than it does on older technology. The reason is that when compared with previous generations of wireless technology, 5G is different in that it requires rapid, widespread deployment of more facilities… The differences in the FCC’s new approach are therefore reasonably explained by the differences in 5G technology. 

Free State Foundation President Randolph May spoke to the decision's importance to 5G deployment in an August 12 media advisory. Also, FSF President Randy May and I filed public comments with the FCC in the proceeding out of which the September 2018 Small Cell Order emerged.