Our thanks goes to Law360 for publishing the interview.
Wednesday, June 23, 2021
Monday, June 21, 2021
FSF President Randolph May Moderates Federalist Society Teleforum on Broadband Featuring Commissioner Carr
On June 15, Free State Foundation President Randolph J. May moderated a teleforum hosted by The Federalist Society featuring FCC Commissioner Brendan Carr.
Their conversation touched on a wide range of topics, including broadband infrastructure, legislative and regulatory efforts to close remaining digital divides, and Commissioner Carr's thought-provoking proposal to require that Big Tech companies contribute their fair share to government broadband subsidy programs.
Audio versions of "Closing the Digital Divide: The Future of Broadband Access" are available here.
Wednesday, June 16, 2021
Regarding the introduction today by Senators Michael Bennet, Angus King, and Rob Portman of the BRIDGE Act, the following statement may be attributed to Free State Foundation President Randolph May:
Tuesday, June 15, 2021
Leaving aside the other parts of the INVEST America Act, the policy contained in the Dig Once Act is sensible way to promote broadband access to unserved Americans. Hopefully, the 117th Congress will see fit to pass "dig once" reform as a way to promote real infrastructure in the United States. For more on the "dig once" legislation's sponsorship and history, see John Eggerton's report.
Monday, June 14, 2021
On June 11, the U.S. District Court for the Eastern District of New York granted a preliminary injunction barring New York State Attorney General Letitia James from enforcing that state's new law imposing rate controls on broadband Internet access services.In a May 5 blog post, I called attention to the legal challenge to the New York law that was filed by broadband Internet service providers in New York Telecommunications Association v. James. The case was assigned to Senior Judge Denis Hurley. Although provided in the context of a motion for preliminary relief and substantial likelihood of success on the merits standard, Senior Judge Hurley's ruling rightly recognized that New York's law is federally preempted -- on conflict preemption as well as field preemption grounds:
Putting it all together, the ABA conflicts with the implied preemptive effect of both the FCC's 2018 Order and the Communications Act. The ABA's common carrier obligations directly contravenes the FCC’s determination that broadband internet "investment," "innovation," and "availab[ility]" best obtains in a regulatory environment free of threat of common-carrier treatment, including its attendant rate regulation… the ABA thereby stands as an obstacle to the FCC's accomplishment and execution of its full purposes and objectives and is conflict-preempted.
Plaintiffs have demonstrated a likelihood of success on the merits based on field preemption. The ABA is not a "purely intrastate affordable-pricing scheme," nor is it reasonable to read its statutory text in that manner: It covers providers with "the capability to transmit data to and receive data from all or substantially all internet endpoints."… The ABA’s plain terms apply (absent an exemption) to the telecommunications provider transmitting this interstate communication. In other words, the ABA is not confined to intrastate communications services.
Free State Foundation scholars may have more to say about this well-reasoned decision by the Eastern District of New York. Stay tuned.
Thursday, June 10, 2021
On May 25, the Federalist Society held a webinar on the Biden Administration's broadband infrastructure plan. David Redl moderated the webinar's panel, which included Prof. Christopher Yoo -- a member of the Free State Foundation's Board of Academic Advisors, Kate O'Connor, and Tony Clark. The panelists offered their views on matters such as subsidies for unserved areas, subsidy preferences government-owned networks, rate regulation, and wireless infrastructure siting policy. An audio version of the webinar panel also is available on the Federalist Society's website for streaming or download.
In recent publications, FSF scholars have critiqued the Biden Administration's broadband infrastructure plan and offered alternatives. For example, on June 2, FSF President Randolph May and Senior Fellow Andrew Long published a Perspectives from FSF Scholars paper titled "Biden Broadband Plan: Transparency and Accuracy Required for Sound Policy." Additionally, on June 8, FSF President May and I published a Perspectives paper that touches on important reform opportunities that the Biden Plan overlooks. That paper is titled "Wireless Infrastructure Reforms Rest on Solid Constitutional Foundations: Congress Should Preempt Local Obstacles to 5G Deployment."
Wednesday, June 09, 2021
In light of rising concerns about the Cancel Culture, and specifically various actions by the #BigTech social media sites, there have been increasing calls for regulation of Facebook, Google, Twitter, and the like as common carriers. In other words, imposing regulation akin to traditional public utilities which, generally, are subject to nondiscrimination obligations.
For example, Justice Clarence Thomas has suggested the idea in a concurring opinion in Biden v. Knight First Amendment Institute. I wrote about Justice Thomas's opinion here in Part 3 of my "Thinking Clearly About Speaking Freely" series.
Now comes the Ohio Attorney General suing in an Ohio state court to have Google's search engine declared a utility-style common carrier subject to common carrier obligations.
While I'm concerned about many of the actions taken by the dominant social media platforms, I'm reluctant, at least at this point, to support moves to treat them as common carriers. As I explained recently here, they don't all hold themselves out indiscriminately to serve all comers in the way that traditional public utilities do, and they don't all necessarily exercise the same degree of marketplace dominance. These are the two most prominent indicia of common carriage at common law. Moreover, common carrier regulation, more often than not, has been applied in a way that discourages investment and innovation, even when, in theory, the common carrier regime incorporates "reasonableness" standards that allow for some flexibility.
And aside from all that, with regard to the Ohio AG's action, I worry about a patchwork of state regimes imposing different regulatory requirements on what truly are national and international business operations.
No doubt the Ohio lawsuit bears close watching.
Tuesday, June 08, 2021
Rep. Butterfield Reintroduces Legislation to Eliminate "Eligible Telecommunications Carrier" Requirement for Universal Service Fund Recipients
As I detailed in a December 2020 post to the Free State Foundation's blog, Congress appropriated $3.2 billion to fund the EBB, an FCC-administered program providing eligible households with discounts on monthly high-speed Internet access service and connected devices. By design, however, the EBB is limited in scope: it will end six months after the end of the COVID-19 public health emergency or when the money runs out, whichever comes first.In a February 2021 Perspectives from FSF Scholars, I argued that the EBB potentially might serve as a model for future Lifeline funding. One major reason why: Congress made explicit that a provider need not be designated as an Eligible Telecommunications Carrier (ETC) in order to participate.
The EBB currently includes more than 1,000 providers, ETCs and non-ETCs alike. Those in the latter group had to jump through additional hoops, but in the Report and Order establishing the EBB, the Commission, to its credit, did adopt processes to ensure that non-ETCs "that … submitted complete applications by the priority application deadline will know prior to the start date of the EBB Program if they are eligible to participate." That mitigated the possibility that, at least in this specific instance, ETCs might enjoy an unfair advantage over their non-ETC rivals.
On May 20, Rep. G.K. Butterfield (D NC) reintroduced the Expanding Opportunities for Broadband Deployment Act. In "The ETC Requirement for Accessing Broadband Funds Should Be Eliminated," a June 2020 Perspectives, I applauded the 2020 iteration of this legislation, which would have eliminated altogether the statutory requirement that a provider be designated as an ETC by a state regulatory agency or the FCC prior to participating in Universal Service Fund programs. (The text of the 2021 version, H.R. 3376, is not yet available.)
Passage of H.R. 3376 would benefit consumers by expanding the pool of providers that participate in subsidy programs like the $20.4 billion Rural Digital Opportunity Fund and the $9 billion 5G for Rural America Fund.
Thursday, June 03, 2021
Section 621(a)(1) of the Communications Act recognizes that LFAs may require cable TV service operators to obtain franchises, but the law subjects LFAs to limits. For example, Section 622(b) limits the amount that LFAs can require cable operators to pay in order to receive franchises to 5% of their cable service gross revenues during any 12-month period. Yet some LFAs have imposed financially costly in-kind obligations on cable operators and effectively exceeded the 5% cap. The Sixth Circuit upheld the FCC's determination in its 2019 order that in-kind contributions count toward the 5% cap.
Additionally, Section 624(b) provides LFAs "may not ... establish requirements for video programming or other information services." But some LFAs have imposed costs that appear to go beyond the statute's limits, potentially draining cable operator investment in their broadband Internet networks. And uncertainty existed as to whether LFAs could leverage their cable franchising authority to regulate cable broadband Internet services. Importantly, the Sixth Circuit upheld the Commission's "mixed use" rule -- which clarifies that LFA's may not use their cable franchising authority to regulate non-cable services. The 2019 order determined that that the City of Eugene was prohibited from imposing fees on cable operator revenues from their broadband Internet access services. The Sixth Circuit upheld this determination.
Although not every aspect of the FCC's 2019 order was upheld, on the whole the Sixth Circuit's decision in City of Eugene v. FCC appears sensible. In December 2018, Free State Foundation President Randolph May and I filed reply comments with the FCC regarding cable infrastructure and LFAs. And for more, see my July 2019 blog post on this topic.
Wednesday, June 02, 2021
A May 24 op-ed by FCC Commissioner Brendan Carr titled "Ending Big Tech's Free Ride" makes the sensible suggestion that Big Tech online platforms that generate the most broadband Internet traffic ought to be responsible for contributing to the Universal Service Fund. Below are tweets by Free State Foundation President Randolph May that respond to Commissioner Carr's proposal:
Long-time observers know that the reason @Facebook @Google and other #BigTech firms don't presently pay is rooted in arcane legacy definitional regulatory constructs that may no longer make sense, 25 years later, in today's Internet ecosystem.— Free State Foundation (@FSFthinktank) May 25, 2021
But, like #Section230, reflexively treating #BigTech as "infants" needing protection now, 25 years after the #TelecomAct, is, well, infantile. So the @BrendanCarrFCC proposal deserves serious consideration. The law can be changed while protecting the proverbial "next Google."— Free State Foundation (@FSFthinktank) May 25, 2021
Friday, May 28, 2021
This is my fifteenth consecutive Memorial Day message. You can find the previous fourteen at the end of this message.
Last year, I said I never could have imagined that I would be writing in the midst of a pandemic that caused a near virtual lockdown of the nation. Now, thankfully, we are emerging from the pandemic, in no small part due to the rapid development in 2020 of highly effective vaccines and this year to the increasing number of Americans already vaccinated.
While this year's message will be more personal than many others, Memorial Day, above all, is always about memory. About taking time to remember those men and women in our Armed Forces who paid the ultimate price defending our country and protecting our freedom.
My father, Aaron May, served in the 68th Armored Infantry Battalion of the famed 14th Armored Division that landed in Marseilles, France on October 29, 1944. The troops first saw combat on November 20, 1944. After 167 days of combat, the Division fired its last shots on May 2, 1945.
On May 2-3, 1944, after already liberating thousands of Allied prisoners of war as the Division's troops battled eastward from France and into Germany, they liberated some of the subcamps at the large Dachau Concentration Camp complex as well as other nearby camps holding Jewish prisoners. It was a full 40 years later before my father talked about what he saw, smelled, and heard at Dachau – about the unimaginably emaciated survivors who were little more than skeletons, about the unforgettable pervasive stench of death, and about the cries of desperation for help and of joy at the prospect of liberation.
It’s no wonder that the 14th Armored Division quickly earned the unofficial nickname “The Liberators.” More than a half-century later, on October 22, 2002, the Secretary of the Army awarded the Division what is called a "Distinctive Designation" in recognition of its unique accomplishments. From that date on, the Division will forever be carried on the rolls of the Army as the "LIBERATORS."
My father made it home and was discharged in December 1945. Memorial Day is about remembering all those who did not.
And we’ll dishonor their sacrifice if we don’t recognize that we can continue, as the Founders put it in the Constitution’s Preamble, to seek “a more perfect Union,” without using the faults of our past, including the stain of slavery, as weapons primarily intended as wedges to divide us. Or as swords intended to diminish the force of the fundamental principles upon which America was founded – again, as the Constitution's Preamble has it, to "establish Justice" and "to secure the Blessings of Liberty to ourselves and our Posterity."
My father and I talked often about politics. Having fought against Nazi tyranny and witnessed first-hand Nazi death camps, he was always fearful of extremes in American politics. I’m not sure whether he was familiar with Ben Franklin’s famous (but perhaps apocryphal) retort when asked by Elizabeth Powel what the Constitutional Convention had bequeathed America: "A republic, if you can keep it." But I know, based on his wartime experience and his gut instincts, that, indeed, he worried whether we could keep it.
During our discussions, my father often – too often I sometimes thought as a young man – said that, in America, our politics must not veer too far from the Center, that they must not lurch to the extremes.
From my own Center-Right perspective, I am no longer as certain as I have been throughout most of my adult life that the Center – and by that, I mean the Center-Right and the Center-Left – can hold. In my view, the mainstream media contributes, wittingly or not, to our dysfunctional politics by not calling out far-left extremism in the same way that it dwells on the far-right. Both are problematic.
Moreover, the metastasizing Cancel Culture, which has the effect of shrinking the public space in which matters of legitimate public concern ought to be debated, only serves to deepen our political and philosophical divisions, especially in light of the leftward bias exhibited by the dominant social media platforms in the exercise of their "cancellation" discretion.
In his most recent Wall Street Journal column, Daniel Henninger wrote this: "America's current waves of violence – right-wing militias, left-wing anarchists, street protesters, urban gangs, anti-Semitic assaults and solo nut cases – are pushing the country to a dangerous level of disorder."
Were he still living, my father would be fearful for our country's future.
In his Farewell Address, Ronald Reagan declared: "If we forget what we did, we won't know who we are. I am warning of an eradication of that – of the American memory that could result, ultimately, in an erosion of the American spirit."
On this Memorial Day, and every Memorial Day, we should honor all those servicemen and women who paid the ultimate sacrifice in World War II, and all of America's wars, by remembering. And by recommitting to the ideals for which they fought, and which are embodied in our Constitution: To “establish Justice” and “to secure the Blessings of Liberty to ourselves and our Posterity.” If we don't, and there is an erosion of the uniquely American spirit, they shall have died in vain.
I wish you and your family the best for a safe, healthy, happy, and meaningful Memorial Day!
PS – My past Memorial Day messages are here: 2020 2019, 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011, 2010, 2009, 2008, 2007
Thursday, May 27, 2021
In "Biden Broadband Plan: Claims That Broadband Is 'Too Expensive' Are Unfounded," a May 7, 2021, Perspectives from FSF Scholars, Free State Foundation President Randolph J. May and I cited a number of sources, including USTelecom's 2020 Broadband Pricing Index, to demonstrate the efficient operation of the broadband marketplace. Prices are on a long downward trajectory, the number of competitors is growing, and service quality (including, but not limited to, speed) is improving.
On Thursday, USTelecom released the 2021 edition of its Broadband Pricing Index. It confirms that, even as the COVID-19 pandemic drove a dramatic spike in usage, between 2020 and 2021 prices continued to decline and speeds once again increased. In the words of USTelecom CEO Jonathan Spalter, "more Americans have cheaper and flat-out better broadband service choices than they did one year ago."
- In the past year the price of the most-popular broadband service tiers declined by an additional 7.5 percent (in constant 2015 dollars) after falling 20.2 percent between 2015 and 2020. When inflation is taken into account, those values increase to 9.3 percent and 28.1 percent, respectively.
- The price of the highest-speed tiers decreased an additional 2.3 percent last year after falling 37.7 percent between 2015 and 2020. Adjusted for inflation, those totals are 4.2 percent year-over-year and 43.9 percent during the prior five-year period.
- Download speeds for the most-popular tiers have risen by 126 percent since 2015, from 43 megabits per second (Mbps) to 98 Mbps.
- Download speeds for the highest-speed tiers have climbed from 141 Mbps in 2015 to 248 Mbps in 2021, an increase of 77 percent.
- Upload speeds have risen by even greater percentages over the same time period: 256 percent for the most-popular tiers (from 13 Mbps to 45 Mbps) and 98 percent for the highest-speed tiers (from 51 Mbps to 99 Mbps).
For purposes of comparison, the author of the report, Telcodata and Business Planning, Inc. founder Arthur Menko, notes that the cost of all U.S. consumer goods and services, as measured by the Bureau of Labor Statistics' Consumer Price Index, has increased 12.2 percent since 2015 and by 2.6 percent between March 2020 and March 2021.
The Perspectives referenced above is the third to date in an ongoing series of pieces highlighting flaws in the Biden Broadband Plan. I urge you to read "Biden Broadband Plan: Misdirected Broadband Subsidies Hurt Competition and Consumers" and "'Future Proofing' Subsidized Broadband Would Inflate Consumer Prices," as well.
In addition, "Biden Broadband Plan Favoring Government-Owned Networks Lacks a Constitutional Foundation," by Mr. May and Seth L. Cooper, Free State Foundation Director of Policy Studies and Senior Fellow, provides an insightful critique of the plan's stated preference for broadband networks owned and operated by local municipalities.
Wednesday, May 26, 2021
In April 2020, the FCC approved the use of 30 MHz of valuable L-Band spectrum for commercial wireless services, including 5G services. This will boost the U.S. economy and our nation's standing in the race for 5G global leadership. Now disgruntled parties who want to delay or undo the L-Band Order are badmouthing it. But their attacks on the agency process that preceded the approval are easily shown to be untrue.
In its L-Band proceeding, the FCC followed the law and engaged its engineering expertise on spectrum interference issues. The Commission's carefully balanced order will promote innovation, investment, and jobs while providing safeguards for GPS services in nearby spectrum bands.
On a 5-0 bipartisan vote, the FCC authorized Ligado Networks to deploy a mixed mobile-satellite network using licensed L-Band spectrum that previously has gone unused. Ligado is pursuing opportunities for private network services. According to the L-Band Order, Ligado plans to invest up to $800 million in network capabilities, which could create over 8,000 jobs. In February 2021, Ligado announced its collaboration with Rakuten Mobile to co-develop 5G private network solutions for critical infrastructure industries such as energy, utilities, healthcare, and agriculture.
As Ligado Networks moves forward with its innovative network plans, its opponents are trying to nitpick the FCC's process leading up to the L-Band Order. For instance, op-eds by Diana Furchtgott-Roth published in April and May of this year rehash attacks on the L-Band proceeding. The most fanciful criticisms of the proceeding were originally made by Sen. James Inhofe in a May 2020 floor speech. Sen. Inhofe claimed that the Commission's process amounted to "a hasty decision" suddenly made "in the darkness of a weekend." Others, including Ms. Furchtgott-Roth, subsequently quoted Sen. Inhofe's wild claims for purposes of attacking the L-Band Order. However, it's a ghost story, not reality.
The FCC proceeding that culminated in the L-Band Order goes back a decade. Federal agencies, the GPS industry, the wireless industry, and others have closely tracked its developments. In 2016 and 2018, the Commission requested public comments on Ligado Networks' application to deploy its proposed mobile-satellite network. In an August 2019 NTIA report, the executive branch expressly acknowledged an anticipated a decision by the Commission on Ligado's application. And in the fall of that year, the Commission actually shared a draft of its order with NTIA. That the Commission was working methodically toward a decision in its L-Band proceeding was a surprise to no one. Moreover, the agency process that produced the L-Band Order complied with the Administrative Procedure Act's notice-and-comment requirements.
Furthering the ghost story version of events, Ms. Furchtgott-Roth's op-eds call the L-Band Order "ill-advised" and "inexplicable." Not so. The FCC was ably advised by the agency's Office of Engineering and Technology. The Commission's staff engineers duly considered submissions from federal agencies and all interested parties, conducting a careful analysis of alleged or potential signal interference issues. For instance, the Commission was unpersuaded by certain executive agency claims about possible signal interference with military devices operating outside of their assigned spectrum band.
Executive branch agencies may be unhappy that the FCC didn't agree with their views. But the Commission has the legal responsibility and the expertise to address conflicting views about commercial spectrum usage, and the agency relied on that expertise to make its decision.
In a January 2021 address to the Information Technology Industry Council, then-FCC Chairman Ajit Pai cut to the chase about federal agency disagreements on spectrum use and overheated claims that aren't backed up by hard facts:
[A]rguably the biggest thing hampering efforts to use spectrum more efficiently is – our own government. On proceeding after proceeding, we saw that other federal agencies tried to throw up roadblocks. Rather than look out for the public interest, many agencies were looking out for their narrow parochial interest. And since most don't have in-house spectrum expertise, they ended up simply parroting the exaggerated, hysterical, and often outright false claims being made by the industries they regulate. To achieve their aims, they ended up bypassing normal channels and complaining to Congress or the media in an effort to block or delay efforts to free up spectrum for commercial use.
Among the highly dubious claims called out by Chairman Pai, throw in Ms. Furchtgott-Roth's that "the entire GPS system is endangered" by the L-Band Order.
The deliberative process undertaken by the FCC is a reflected in the L-Band Order's specifics to for safeguarding GPS services. Rather than give Ligado Networks a free pass, the Commission imposed significant conditions on L-Band usage to avoid potential signal interference with incumbents in adjacent spectrum bands. Ligado negotiated agreements with major GPS equipment manufacturers for resolving signal interference concerns. The Commission incorporated those agreements into the L-Band Order, making them enforceable by the agency. Also, the Commission required Ligado to establish a 23 megahertz guard-band, lower base station power levels 99% compared to Ligado's 2015 proposal, and replace any government GPS devices that experience harmful interference. And Ligado must be able to shut off its network within 15 minutes of any request by the Commission.
In January of this year, the newly-constituted FCC rightly rejected an NTIA petition to stay the L-Band Order. Ligado Networks' 5G endeavors ought to be encouraged, not hindered. The careful process undertaken by the Commission should instill confidence in the agency's decision to green light wireless services in the L-Band. And resort by opponents to easily disprovable criticisms of the agency's process also boost confidence in the resulting order.
(For more on this subject, see the May 2020 Perspectives from FSF Scholars paper by Free State Foundation President Randolph J. May and I titled: "FCC's Order Approving Ligado's Next-Gen Wireless Network: A Deliberative Process that Protects Against Signal Interference.")
Tuesday, May 25, 2021
On May 6, 2021, Free State Foundation President Randolph May participated in a discussion of today's "Cancel Culture." The discussion also included related telecommunications issues such as social media platforms, free speech, and Section 230 reform.
Click on the image below to watch the C-SPAN video.
Monday, May 24, 2021
As part of the Free State Foundation's Thirteenth Annual Telecom Policy Conference, FSF President Randolph May hosted Congressman Bob Latta for an address and conversation about communications policy. Congressman Latta, who is Ranking Member of the House Subcommittee on Communications and Technology, discussed ways to promote private network investment, support for network deployment to unserved Americans, and modernization of Section 230 immunity to ensure free and open discussion on the Internet. Video of this morning's event is now available. The link is below. Be sure to tune in!
Thanks to @boblatta for his participation this morning @FSFthinktank #FSFConf13! He said federal #broadband subsidies should be targeted to unserved areas and that gov't should not prioritize gov't #telecom networks. Zoom link: https://t.co/jK6Iy3fBLH Passcode: ^FrneH03— Free State Foundation (@FSFthinktank) May 24, 2021
UPDATE - YouTube video is also available here.
Friday, May 21, 2021
Congressman Bob Latta, Republican Leader of the House Subcommittee on Communications and Technology, Delivers Keynote Address
WHAT: FSF's Thirteenth Annual Policy Conference – Keynote Address
WHERE: Via Zoom
WHO: Congressman Bob Latta, Republican Leader of the House Subcommittee on Communications and Technology
WHEN: Monday, May 24, 2021, 9:30 – 10:30 a.m. EDT
As part of the Free State Foundation's Thirteenth Annual Policy Conference, Congressman Bob Latta will present a Keynote Address on May 24, 9:30 – 10:30 a.m., via Zoom. Congressman Latta is the Republican Leader of the Subcommittee on Communications and Technology, a subcommittee of the House Committee on Energy and Commerce.
You will receive the Zoom link when you register!
The Free State Foundation's Annual Policy Conference is widely acknowledged to be one of the nation's premier communications law and policy events, and - just as we have every year - we intend this year to present interesting, informative, and impactful programs.
As in previous years, a truly outstanding lineup of senior officials and prominent experts from the FCC, other government agencies, industry, academia, and think tanks is discussing and debating the most important communications and Internet policy issues of the day.
MARK YOUR CALENDAR NOW FOR MAY 24!
Thursday, May 20, 2021
Freedom of speech is protected by the First Amendment to the U.S. Constitution. Importantly, free speech protections extend to speech about the conduct of public officials. Americans have the right to talk about and criticize their leaders. Supporters of free speech – including political free speech – should read FCC Commissioner Brendan Carr's May 10 statement bearing the subtitle: "FCC Must Stand up for Free Speech and Press Freedom by Dismissing Complaint Today." Commissioner Carr's statement comes in response to a formal complaint filed by the Office of the State's Attorney for Baltimore City, which complains about the tone and frequency of local broadcast journalists' stories about State's Attorney Marilyn Mosby. A link to the formal complaint is provided in Commissioner Carr's statement.
So far, the newly-constituted FCC apparently has been silent on the State Attorney Office's speech complaint. Hopefully the Commission will follow Commissioner Carr's lead in respecting First Amendment free speech rights.
Monday, May 17, 2021
On May 14, seven broadband providers and trade associations announced the formation of America's Broadband Future, a coalition that "will urge lawmakers to bridge the digital divide by expanding access in rural America, equipping vulnerable communities with resources needed to get connected, and investing in digital literacy initiatives to empower all Americans to thrive in the digital age."
On its home page, America's Broadband Future asserts that:
Unfortunately, some of the broadband policy plans being discussed in Washington, D.C. fall short. They fail to provide the resources necessary to empower and enable vulnerable communities to get connected quickly. And they fail to prioritize those unserved areas of the country that are most in need of major broadband investment.
Free State Foundation scholars have addressed various shortcomings of the broadband-specific provisions in President Biden's American Jobs Plan in the following Perspectives from FSF Scholars and blog post:
- "Biden Broadband Plan Favoring Government-Owned Networks Lacks a Constitutional Foundation"
- "Biden Broadband Plan: Claims That Broadband Is 'Too Expensive' Are Unfounded"
- "Biden Broadband Plan: Misdirected Broadband Subsidies Hurt Competition and Consumers"
- "'Future Proofing' Subsidized Broadband Would Inflate Consumer Prices"
Friday, May 14, 2021
This paper identifies how copyright law and sovereign immunity came into conflict recently, explains why this conflict matters, and proposes a solution: Congress should enact new legislation that holds states accountable for when state officials pirate the fruits of creative labors of citizens by stealing their copyrighted works.
The conflict alluded to is the result of the Supreme Court's decision in Allen v. Cooper (2020). Along with a discussion of legal principles and copyright case law, the paper profiles some specific cases in which states or state entities infringed on copyrights and inflicted serious harms on copyright owners but escaped legal liability under copyright law.
For another discussion of Allen v. Cooper and the need for a legislative response to shore up protections for copyright owners, see my July 2020 Perspectives from FSF Scholars paper, "Congress Should Stop States From Infringing Copyrights." States should not be financially responsible for copyright infringement just like everyone else, and Congress should seek ways to ensure that justice is served when states infringe copyrights.
The U.S. Copyright Office is currently undertaking a study of the copyright infringements and state sovereign immunity. The Office's study is expected to produce a report for public release later this year.
Thursday, May 13, 2021
In "Inconsistent State Data Privacy Laws Increase Confusion and Costs," a March 2021 Perspectives from FSF Scholars, I explained why a single, nationwide privacy regime – in particular, one that preempts state law and embraces exclusive enforcement by the FTC rather than a private right of action – is far preferable to a collection of inconsistent, state-specific approaches. Already we have seen such laws pass in California (the in-effect CCPA and, more recently, the CPRA) and Virginia.
As such, congressional activity on the privacy front is a topic upon which the Free State Foundation regularly provides updates. This specific discussion focuses on several federal data privacy bills that have been introduced – in many cases, reintroduced – so far this year.
The first such bill, the Information Transparency and Personal Data Control Act, was reintroduced on March 10 by Representative Suzan DelBene (D WA). As I noted in "Congresswoman DelBene Reintroduces Federal Data Privacy Bill," an April 2 blog post, that act, among other things, would preempt state law and would not allow individual consumers to pursue a private right of action.
* * *
Less than two weeks later, on March 23, a group of 17 Democrats in the Senate reintroduced the Data Care Act (DCA).
Rather uniquely, the DCA would not create specific consumer rights (for example, the right to know, access, delete, or correct collected personal information).
Instead, it would require online service providers that collect "individual identifying data" to abide by duties of care, loyalty, and confidentiality.
Pursuant to the duty of care, online service providers would have to "reasonably secure individual identifying data from unauthorized access" and promptly notify end users in the event of a breach involving "sensitive data," which the DCA defines to include social security, driver's license, and financial account numbers; fingerprints and other unique biometric data; and "information sufficient to access an account of an individual."
The duty of loyalty would bar the use of individual identifying data "in a way that will benefit the online service provider to the detriment of an end user" and either (a) "will result in reasonably foreseeable and material physical or financial harm" or (b) "would be unexpected and highly offensive to a reasonable end user."
The duty of confidentiality would limit the disclosure or sale of individual identifying data to those uses that are consistent with online service providers' duties of care and loyalty; require the inclusion of contractual provisions that impose the duties of care, loyalty, and confidentiality on third-party recipients of individual identifying data; and require audits and other reasonable steps to ensure that third parties in fact do comply with those obligations.
The FTC would be authorized to enforce a violation of the DCA as "an unfair or deceptive act or practice" pursuant to Section 18(a)(1)(B) of the Federal Trade Commission Act. State attorneys general and consumer protection officers also could bring civil enforcement actions.
The DCA would apply to nonprofit organizations and common carriers.
It explicitly would not "modify, limit, or supersede the operation of any privacy or security provision in any other Federal or State statute or regulation."
* * *
On April 29, Senator Jerry Moran (R KS) reintroduced the Consumer Data Privacy and Security Act (CDPSA).
First and foremost, the CDPSA would preempt state laws in order to establish a federal consumer data privacy protection standard. According to the press release, a recent survey revealed that "an overwhelming majority of Americans believe a national standard for privacy is needed."
In addition, the CDPSA would bestow upon consumers the rights of knowledge, access, portability, correction, and deletion. Small businesses – defined as those that have fewer than 500 employees, generate less than $50 million in annual gross receipts, and collect personal data from no more than a million individuals – would not be required to provide access, or make corrections, to collected data.
With some limited exceptions, covered businesses would have to obtain consent before collecting and processing personal data. The type of consent required would depend on the sensitivity of the data collected and whether it will be transferred to a third party.
Specifically, with respect to non-sensitive information, "an individual shall be deemed to have consented … if the individual fails to decline the request after being provided with [notice] and a reasonable amount of time to respond to the request."
For sensitive information or data that will be transferred to a third party, however, the CDPSA would require "express affirmative consent."
Covered businesses also would be required, among other things, to implement a comprehensive data security program that "contains reasonable administrative, technical, and physical safeguards designed to protect personal data from unauthorized access and related harmful disclosures."
The FTC and state attorneys general would handle enforcement responsibilities. The former would be provided with limited rulemaking responsibilities, the power to impose civil penalties for first-time offenses, authority over nonprofits and common carriers, and the resources necessary to hire 440 new employees.
The CDPSA makes plain that it would not create a private right of action: "There shall be no private right of action under this Act and nothing in this Act may be construed to provide a basis for a private right of action."
* * *
Finally, Senator Rick Scott (R FL) announced on May 4 the introduction of the Data and Algorithm Transparency Agreement (DATA) Act. Although the text of the bill is not yet available, the press release indicates the DATA Act would require that any large Internet platform "that uses algorithms to increase or decrease the availability of content on its platform" obtain express (opt-in) consent before collecting, selling, sharing, or conveying user data.
Users also would have the right at any time to withdraw their consent and/or request that their personal data be deleted.
And they would be empowered by the DATA Act to pursue a private right of action. In addition to actual damages and attorney's fees, aggrieved users would be entitled to minimum monetary damages in the amount of $5,000 per violation.
The DATA Act, which would apply to those Internet platforms with 30 million or more active monthly users in the United States, would mandate that a plain-language explanation of these rights appear each time that a user logs in. However, users could waive this requirement.
Tuesday, May 11, 2021
Today, Free State Foundation President Randolph May and I published the latest installment in our ongoing series - Constitutional Foundations of Communications Law and Policy:
- Randolph J. May and Seth L. Cooper, "Biden Broadband Plan Favoring Government-Owned Networks Lacks a Constitutional Foundation," Perspectives from FSF Scholars, Vol. 16, No. 24 (May 11, 2021).
- Randolph J. May and Seth L. Cooper, "Congress Should Put Universal Service on a Firmer Constitutional Foundation," Perspectives from FSF Scholars, Vol. 16, No. 22 (April 22, 2021).
- Randolph J. May and Seth L. Cooper, "The Constitutional Foundations of Communications Law and Policy," Perspectives from FSF Scholars, Vol. 16, No. 11 (March 3, 2021).