Friday, May 28, 2021

Memorial Day 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, 20172016201520142013201220112010200920082007.


Thursday, May 27, 2021

Latest USTelecom Broadband Pricing Report Shows Continued Decline in Costs, Increase in Speeds

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."

Key takeaways:

  • 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

FCC Followed a Careful Process in Approving Wireless L-Band Services

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

FSF President Randolph May on C-SPAN's "The Communicators"

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

Video of Congressman Bob Latta's Address on Communications Policy Now Available

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!

UPDATE - YouTube video is also available here.  

Friday, May 21, 2021

Congressman Bob Latta Delivers Keynote Address on May 24, 2021 – Register Now!

                               Free State Foundation
Thirteenth Annual Policy Conference


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.




Thursday, May 20, 2021

FCC Commissioner Brendan Carr Stands Up for Free Speech in Broadcasting

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. 

It's not the role of the FCC to serve as selective speech police. And if the Commission were to try to go down that road, the First Amendment would forbid it. In April 2020, the FCC's Media Bureau and its now-former General Counsel Thomas Johnson issued an important letter defending broadcasters' free speech on matters of public interest. Free State Foundation President Randolph May interviewed Mr. Johnson about that letter and more in a May 2020 event with the Federalist Society, and the audio is available online.

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

Broadband Organizations Join Together to Form America's Broadband Future

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:

The founding members of America's Broadband Future are AT&T, Charter Communications, Comcast, Verizon, CTIA, NCTA  The Internet & Television Association, and USTelecom.

Friday, May 14, 2021

New Paper by Copyright Law Experts Takes on Copyright Infringements by States

On May 13, the Regulatory Transparency Project published a paper titled "Holding States Accountable for Copyright Piracy." The paper was co-authored by a distinguished group of copyright experts: Alden Abbott, Kevin Madigan, Adam Mossoff, Kristen Osenga, and Zvi Rosen. Professor Mossoff is a member of the Free State Foundation's Board of Academic Advisors. This paragraph from the introduction sets forth the paper's purpose: 

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

Privacy Roundup: Federal Data Privacy Legislation Proposed in 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

The Constitutional Foundations of Communications Law and Policy

Today, Free State Foundation President Randolph May and I published the latest installment in our ongoing series - Constitutional Foundations of Communications Law and Policy:

Monday, May 10, 2021

Study: Bad Data Diverting Broadband Subsidies Targeting the Unserved to Already Connected Areas

A Competitive Carriers Association (CCA) study raises serious concerns that, contrary to the FCC's intentions, ratepayer dollars will be used to subsidize the overbuilding of existing broadband networks.

The goal of the $20.4 billion Rural Digital Opportunity Fund (RDOF) is to incentivize the construction of broadband network infrastructure specifically and exclusively in those areas that are, and are likely to remain, unserved.

That, of course, requires a factual appreciation of where "broadband," currently defined by the FCC as delivering download speeds of at least 25 megabits per second (Mbps) and upload speeds of at least 3 Mbps, is – and, more to the point, is not – available.

By all accounts, however, the broadband availability data that currently exists is fraught with problems.

For more information on the Digital Opportunity Data Collection, an in-progress mapping-modernization effort initiated by then-Chairman Ajit Pai in 2017 and funded by Congress at the end of last year, please see "A Primer: The COVID Relief Bill's Broadband Funding Provisions," a December 26, 2020, post to the FSF Blog, and "Congress Should Fund Needed Broadband Maps This Session," a November 2020 Perspectives co-authored by Free State Foundation President Randolph May.

Nevertheless, based upon the belief that existing data does indicate with sufficient accuracy those census blocks completely lacking broadband, the FCC conducted the RDOF Phase I reverse auction at the end of last year. 180 bidders won a total of $9.2 billion in subsidies to connect 5.2 million locations understood to be unserved.

But according to "Missed Opportunity: How the Rural Digital Opportunity Fund Wastefully Subsidizes the Connected," a study the CCA filed with the FCC on May 6, as much as $1 billion of that money – more than 10 percent – instead will go "to wealthy, densely populated areas that already have access to broadband."

High-profile examples include Cupertino, California, the home of Apple Inc.; Fisherman's Wharf in San Francisco; and parts of the downtown Chicago business district.

All told, CCA warns that RDOF Phase I subsidies could be used to overbuild existing, privately funded broadband networks serving nearly 300,000 locations and over 400,000 people.

The CCA therefore urges the FCC to "reaffirm its commitment to closing the digital divide by using its ample authority to prevent scarce, high-cost funds from needlessly subsidizing broadband deployment in areas that already have it."

Friday, May 07, 2021

Latest FSF Critique of Biden Broadband Plan Disproves Claim That Service Is "Too Expensive"

The Free State Foundation today published the third piece in an ongoing series exposing flaws in the broadband-specific elements of President Biden's American Jobs Plan.

In "Biden Broadband Plan: Claims That Broadband Is 'Too Expensive' Are Unfounded," FSF President Randolph May and I tackle head-on the factually incorrect assertion that "Americans pay too much for the Internet." Citing multiple data sources, we demonstrate convincingly that the efficient operation of the competitive marketplace for high-speed Internet access is producing greater consumer choice, lower prices, and higher speeds. Make no mistake, time-tested trends prove that market forces are doing their job.

In "Biden Broadband Plan: Misdirected Broadband Subsidies Hurt Competition and Consumers," published on April 28, 2021, we described the harm that necessarily would result from the use of taxpayer dollars to overbuild existing, privately funded broadband networks: private investment would decrease, competition would suffer, and consumers ultimately would be worse off, not better.

And the first in the series, "'Future Proofing' Subsidized Broadband Would Inflate Consumer Prices," an April 13 post to the FSF Blog, explained how the Biden Administration's stated preference for "gold-plated" funding-eligible networks – that is, infrastructure capable of providing far more capacity than consumers demand, particularly in the upstream direction – inevitably would incentivize subsidy recipients to target areas already served and, more broadly, lead to higher, not lower, prices.

Wednesday, May 05, 2021

New York's Rate Regulation of Broadband Services Is Bad Law

On April 30, broadband Internet service providers in New York filed a lawsuit challenging that state's new law imposing price controls on broadband services. The lawsuit in New York State Telecommunications Association v. James, is straightforward and should result in a court declaring New York's law to be federally preempted. 

The FCC's 2018 Restoring Internet Freedom Order eliminated Title II common carrier regulation of broadband Internet access services and declared them to be Title I information services. Importantly, the Commission's repeal of the old rules and its Title I reclassification decision was upheld by the D.C. Circuit in Mozilla v. FCC (2019). By virtue of Title I reclassification well as precedent such as the D.C. Circuit's decision in Verizon v. FCC (2014), common carrier treatment of broadband Internet access services by a state – including rate regulation – conflicts with federal law. 

A persuasive case also can be made that any rate regulation of broadband Internet access services by a state is subject to field preemption. Broadband network operations transcend state borders and broadband services constitute interstate commerce. 

Included in its 2022 budget law, the State of New York requires broadband Internet service providers to offer ostensibly low-income persons high-speed broadband services for $15 per month. But according to the legal complaint, this requirement could apply to perhaps 35% of households in New York. Moreover, New York's rate regulation requirement appears totally oblivious to other affordability measures already in place, including the temporary $50 Emergency Broadband Benefit subsidy recently established by Congress, as well as Lifeline discounts of $9.25 per month for subscribers of broadband Internet services. Additionally, private market providers such as Comcast and AT&T offer steep discount programs to low-income Americans. 

As already indicated, New York's law is also oblivious to federal law. The case is now pending in the U.S. District Court for the Eastern District of New York. Expect the state's rate regulation law to be preempted.   

MEDIA ADVISORY: The Facebook Oversight Board's Decision and the Cancel Culture


Free State Foundation President Randolph May issued the following statement in response to the decision of the Facebook Oversight Board’s ruling regarding Donald Trump’s Facebook account.

"As someone who has expressed serious concerns regarding the expanding impact of the Cancel Culture, I don’t have a particular problem with the Oversight Board’s decision regarding Donald Trump’s account. Indeed, I think the most important aspect of the Board’s decision is its determination that it was not appropriate for Facebook to impose an indefinite suspension with no criteria for when or whether Trump’s account will be restored. In chastising Facebook for applying a ‘vague, standardless penalty,’ the Board gets to the nub of the problem that creates so much unease with Big Tech’s cancellation power. So, I applaud its decision in this regard.
My primary concern is not whether, or how soon, Trump gets back on Facebook, Twitter, or any other platform. Personally, I’d be happier if he said much less about many things. Rather I’m concerned that any action regarding Trump, regardless of what you think about him, not detract from the larger conversation that, as a society, we need to have regarding the growing impact of the Cancel Culture in shrinking the space for legitimate public debate.”

Tuesday, May 04, 2021

Court Permanently Enjoins Enforcement of Maine's Cable-Only A La Carte Law

Pursuant to a court-approved agreement by the parties to a pending legal challenge, a Maine law that would have forced cable operators to unbundle the programming they offer to customers, but not rival distributors of multichannel programming, will not go into effect.

LD 832 states in its entirety that "[n]otwithstanding any provision in a franchise, a cable system operator shall offer subscribers the option of purchasing access to cable channels, or programs on cable channels, individually."

In the summer of 2019, Comcast of New Hampshire/Maine joined a group of cable programmers (Plaintiffs) to sue the Governor of Maine, the Attorney General, and a number of municipalities (Defendants) in the U.S. District Court of Maine.

Plaintiffs put forth three arguments in support of their request for declaratory and injunctive relief: (1) that LD 832 violates the First Amendment by singling out cable operators for disfavored treatment, (2) that it infringes upon Plaintiffs' constitutionally protected editorial discretion regarding how they choose to package programming, and (3) that it is preempted by Sections 544 and 556 of the Communications Act.

The District Court agreed with the first of these arguments and in December 2019 granted a preliminary injunction.

In "Maine's Cable Unbundling Law Violates the First Amendment," a July 2020 Perspectives from FSF Scholars, Free State Foundation President Randolph J. May and I took issue with the District Court's errant conclusion that cable operators' First Amendment protections, recognized by the Supreme Court in its 1994 Turner I decision, do not extend to the editorial decision to make (1) individual channels available to customers exclusively through tiers, and (2) individual programs available solely as part of channels.

In February 2021, the U.S. Court of Appeals for the First Circuit denied Defendants' appeal of the District Court's decision to grant a preliminary injunction, a development I described in a contemporaneous post to the FSF Blog.

In response, the parties agreed to put an end to their legal dispute, filing with the District Court a Joint Motion for Entry of Stipulated Final Judgment and Order for Declaratory and Permanent Injunctive Relief.

On April 23, the District Court issued an Order (1) declaring that LD 832 violates the First Amendment, and (2) permanently enjoining the Defendants from giving it effect.

Regrettably, the District Court's entry of this Order means that it will not have the opportunity to revisit its incorrect conclusion that the Maine law does not infringe cable operators' constitutionally protected editorial discretion with respect to the packaging of programming. Nor, for that matter, will Plaintiffs have the chance to develop the record more fully on the question of federal preemption.

Nevertheless, it certainly is welcome news that the saga of LD 832 has come to end.