FSF Perspectives on How the FCC Should Define and Address Digital Discrimination

On December 22, the FCC released its notice of proposed rulemaking to combat digital discrimination. Free State Foundation President Randolph May and I offered our reaction to the Commission's notice in a December 21 press release. Additionally, our views regarding the proper interpretation of the statutory definition of "digital discrimination" and policy that will best help to close the digital divide and ensure equitable access to broadband Internet services are expressed our October 14 Perspectives from FSF Scholars, "The FCC Should Reject a Disparate Impact Standard: Targeted Subsidies Should Be Used to Address Deployment Gaps." As we wrote in the
introduction: 

To date, there is no evidence of intentional discrimination in broadband deployment on account of income, race, or ethnicity. Nonetheless, debate has arisen over whether the Commission's rules should go beyond preventing intentional discrimination to impose liability on broadband Internet service providers (ISPs) on the basis of disparate impact – that is, on the basis of practices that are acknowledged to be nondiscriminatory on their face, but which are claimed to result in adverse effects on legally protected groups. 

The Commission should follow Congress's instructions in the Infrastructure Investment and Jobs Act of 2021 by barring intentional discrimination. To the extent that there are, in fact, any areas disparately impacted by broadband deployments or practices, whether unintended or beyond ISPs' control, Congress and the Commission ought to subsidize, on a targeted basis, buildouts to ensure equal access and take other properly targeted remedial measures that will accelerate broadband deployment to all Americans.

President May and I also offered our views regarding the makeup of the Commission's forthcoming anti-discriminatory model policies and best practices for state and local governments in in our November 30 Perspectives from FSF Scholars, "FCC Should Rely on Pro-Deployment Actions to Avoid Digital Discrimination":

[T]he FCC should decline to include disparate impact liability in any model policies, best practices, or rules that it develops. Instead, the Commission should focus proactively on ways for state and local governments, ISPs, and local communities to identify unserved or underserved areas and help get them connected. And the Commission should recommend that states and local governments accelerate deployment, including by reducing permit approval time lags as well as by eliminating any other procedural impediments to constructing broadband infrastructure. 

Both Perspectives papers go into more detail regarding recommended next steps for the Commission. Expect FSF scholars to further address the Commission's proposed rules regarding digital discrimination in 2023.  

Press Release: FCC's Digital Discrimination Proceeding

 

Free State Foundation President Randolph May and Director of Policy Studies Seth Cooper issued the following statement regarding the FCC’s adoption of a Notice of Proposed Rulemaking in its Digital Discrimination proceeding:

“There is no disagreement that there should be equal access to broadband for all the people of the United States and that digital discrimination should be prevented. But it is unnecessary, and likely to be counterproductive to achievement of that worthy objective, for the Commission to adopt a rule which allows discrimination to be proved based on a showing of unintentional 'disparate impact' rather than on a showing of intentional discrimination. And it is likely that a rule adopting a ‘disparate impact’ test wouldn’t survive a judicial challenge because the text and structure of the Infrastructure Act, along with relevant judicial precedents, require an intent-based definitional standard to prove digital discrimination.”

Communications Marketplace Report Nears Release

On December 13, the 2022 Communications Marketplace Report was put on circulation at the FCC, indicating that the report is nearing approval. The Commission is required to prepare and release the report by the end of the year.

Free State Foundation President Randolph May, Senior Fellow Andrew Long, and I filed comments and reply comments in the FCC's 2022 Communications Marketplace Report proceeding. As FSF's July 2022 comments stated available data from 2020 and 2021 support the conclusion that the broadband and video services markets are effectively competitive" and that "each of these markets increasingly is characterized by effective intermodal competition." Regarding the broadband Internet access services, our comments cited a host of data regarding competing provider coverage, next-generation network deployment, speeds, and pricing that point to the competitive and innovative state of the market. 

 

In the time since FSF's comments were filed, news stories and reports – about fixed broadband speed improvements, fiber broadband subscriber growth, fixed wireless access (FWA) service subscriber growth, multi-gigabit cable broadband"10G" network rollouts by Comcast and by Charter Communications, subscriber growth in cable competitive mobile virtual network operator (cable MVNO) services, projected growing demand for 5G mobile data, mobile wirelessbroadband affordability, fixed broadband speed improvements, strong wireless network investment, speed increases for 5G wireless networks, and more – appear to confirm the effectively competitive state of the broadband market.

 

Furthermore, FSF's August 2022 reply comments emphasized policy actions that the FCC should take to promote continued investment, innovation, and competition in the broadband and video markets. Regarding broadband inputs, the reply comments emphasized repurposing of spectrum for commercial use, particularly in the lower 3 GHz, the 4 GHz, 7 GHz, and 12 GHz bands. And on the infrastructure siting front, FSF's reply comments recommended that the Commission: (1) declare that fees charged by local governments for deploying wireline facilities in rights-of-way that exceed reasonable costs effectively prohibit broadband services, contrary to Section 253(a); and (2) adopt presumptive reasonableness timeframes of 60-days and 90-days for local governments to act on permit applications involving existing and new wireline facilities in rights-of-way. 

 

Hopefully, the 2022 Communications Marketplace Report will recognize the continuing reality of the competitive state of the broadband market (as well as the video market). Expect to hear more from Free State Foundation scholars following the release of the forthcoming report.

Charter Announces Big Plan for Deploying Ultra-Fast 10G Broadband

According to news reports, Charter Communications is now implementing a three-year "10G" broadband network upgrade plan that will significantly expand multi-gig broadband service availability and enhance the market's competitiveness. The reported goal of Charter's plan is to make 5 Gbps download speeds available to 85% of its geographic footprint and to make 10 Gbps download speeds available for its top tier service. Charter will be upgrading its existing coaxial cable broadband network by implementing DOCSIS 4.0 technology. And it is reported that Charter will spend $10.65 in total capital expenditures next year, with $6.5 to $6.8 billion allocated for its network upgrade. 

The unveiling of Charter's "10G" plan follows Comcast's announcement of its own 10G deployment plan earlier this fall – as discussed in my September 9 blog post.

 

Cable broadband provider's "10G" platform is a competitor to high-speed fiber broadband networks. Free State Foundation Senior Fellow Andrew Long has written about the potential of cable's next-generation networks in his September 2020 Perspectives from FSF Scholars, "'10 G' Can Help Future-Proof Broadband Infrastructure" as well as in his October 2020 blog post, "Study Predicts that Cable '10G' Platform Will Generate Substantial Economic Benefits." Also, it is worth noting that cable networks are themselves fiber-laden. According to public comments filed by NCTA for the FCC's forthcoming 2022 Communications Marketplace Report, high-speed cable broadband networks "contain 550,000 route miles of fiber-optic cable. Using these fiber-rich facilities, data traveling to or from a cable customer is using fiber for 98-99% of the route." 

 

Notably, Charter is reported to also have a plan to expand its geographic footprint in 2023 and beyond. It is reported that Charter is reaching an additional 1 million new locations, backed by funding from the Rural Digital Opportunity Fund. And Charter apparently has won grants from states for passing another 160,000 locations, with other potential grant awards soon to follow through programs such as the Broadband Equity, Access and Deployment Act (BEAD) Program. For these rural buildouts, Charter reportedly is increasing its capital expenditures over prior years.

 

These significate private network investments – albeit supplemented by subsidies – will help reach unserved and underserved areas. Congress, the NTIA, and the FCC ought to continue promoting a pro-innovation, pro-investment, market-oriented environment by avoiding unnecessary new network management regulation, seeking ways to remove or encourage removal of local barriers to construction of new and upgraded infrastructure, as well as by conducting close and coordinated oversight of the many broadband subsidy programs to ensure that dollars are targeted to truly unserved and underserved areas in American. 

Report: Wireless Benefits U.S. Economy

On December 7, CTIA published a report by Compass Lexecon titled "The Importance of Licensed Spectrum and Wireless Telecommunications to the American Economy." The report spotlights the economic output and job creation enabled by wireless services between 2011 and 2020:

The substantial investments in licensed spectrum and infrastructure during the past decade have allowed the industry to deliver wireless services to hundreds of millions of consumers throughout the U.S., contributing nearly $9.5 trillion in gross output and $5.4 trillion in GDP to the American economy, and employing an annual average of more than three million people… In 2020 alone, the wireless industry contributed over $1.3 trillion in gross output, $825 billion in GDP, and nearly 4.5 million jobs to the American economy. 

These trillions in output and millions of jobs include the direct effects of the core wireless industry (mobile network operators and resellers) on the economy, as well as the secondary effects of the wireless supply chain and select downstream market segments that rely heavily upon wireless and mobile broadband services (including smartphone app developers, search engines, digital advertising agencies, mobile gaming, and social networking sites). It does not take into account the contributions made by other sectors that also depend on and use wireless services that could represent hundreds of billions in additional gross output and GDP, as well as millions of workers. Therefore, the estimates presented in this study are a baseline, or lower bound, for the contributions made by wireless- related sectors to the American economy. 

The decade's impressive economic output and job creation spurred by the wireless industry depended upon wireless network operator investment of $265 billion in infrastructure during that same period of time. Moreover, "[b]etween 2011 and 2020, spectrum auctions pertaining to wireless services have raised $155 billion in auction revenues."  

Compass Lexecon's report cites many other pro-consumer results from the strong private sector investments made in wireless networks between 2011 and 2020, including significantly expanded competing network coverage, mobile wireless download speed increases, mobile data traffic growth, and downward pricing trends. The report thus provides a reminder of the importance of maintaining a free market-oriented light-touch regulatory framework for wireless broadband services that promotes private investment and innovation. 

Acknowledging that demands for mobile wireless services is expected to increase significantly in the years ahead, the report presents a key policy takeaway for ensuring that wireless providers can meet those future demands: 

For the wireless industry to continue to provide these considerable, widespread positive effects to the American economy, it is necessary to provide mobile network operators access to dedicated, licensed spectrum. It is also important to allow potential licensees to compete to acquire the spectrum licenses, and, once acquired, to allow the licensees to determine the optimal allocation and usage of that spectrum in the economy based on economic market forces. 

The report doesn't analyze any specific bands. But as public debate continues regarding whether exclusive licensed and shared spectrum frameworks ought to be established by Congress or by the FCC for future commercial spectrum allocations, the findings contained in Compass Lexecon's report deserve careful consideration alongside facts, data, and analysis offered by parties with other viewpoints. 

American Music Fairness Act Advances Out of House Committee

On December 7, the House Judiciary Committee voted to recommend the American Music Fairness Act – H.R. 4130 – in the form of a substitute bill. The legislation now goes to the full House of Representatives for consideration. The House – and then the Senate – should pass the bill into law and secure full public performance rights in copyright owners' music sound recordings. 

Under existing copyright law, terrestrial commercial AM/FM radio stations can profit off of copyrighted music sound recordings by broadcasting them to attract audiences and then draw revenue from running ads – all without paying royalties to the recordings' owners. The American Music Fairness Act would finally change this. The bill would require AM/FM stations to pay royalties to owners of sound recordings for the use of their intellectual property just like satellite radio and Internet radio stations pay public performance royalties to sound recording owners.

An important aspect of the American Music Fairness Act is that the bill includes a low, flat royalty rate for smaller commercial stations and for non-profit stations. In addition to ensuring that sound recording owners finally receive compensation for third-parties' commercial use of their copyrighted works in America, the bill would enable sound recording owners to begin receiving from foreign radio stations public performance royalties that have long been withheld because of the shortcomings of U.S. copyright law.

Also, nobody in Congress should take seriously the claim that royalty payments to copyright owners for public use – including commercial use – of their works is a tax. Royalties are not taxes. There are obvious differences between paying taxes or fees to the government and paying for the right to make copies, publicly display, or publicly perform another's copyrighted property. (I address this matter more in my blog post of September 6, 2022.) The American Music Fairness Act is a pro-property rights bill. 

For further background on the American Music Fairness Act, see my February 2022 Perspectives from FSF Scholars, "American Music Fairness Act Would Secure Copyrights in Sound Recordings," as well as my April 2021 Perspectives, "Congress Should Secure Full Copyright Protections for Music Sound Recordings."

Broadband Subsidy Tax Companion Bill Introduced in the House

On Wednesday, a version of the Broadband Grant Tax Treatment Act (BGTTA), a Senate bill that would shield federal broadband infrastructure subsidies from taxation, was introduced in the House of Representatives.

As I described in a November 17, 2022, post to the FSF Blog, Senators Mark Warner (D-VA) and Shelly Moore Capito (R-WV) authored the BGTTA in response to the 2017 Tax Cuts and Jobs Act, which directs the Internal Revenue Service to treat federal grants as taxable income beginning in 2023.

The BGTTA would exempt from taxation federal broadband funding appropriated by the American Rescue Plan Act and the Infrastructure Investment and Jobs Act, including the $42.45 billion Broadband Equity, Access, and Deployment (BEAD) Program.

The House version, which mirrors the Senate draft, is sponsored by Representatives Jimmy Panetta (D-CA) and Mike Kelly (R-PA) and cosponsored by Terri Sewell (D-AL) and Drew Ferguson (R-GA).

Responding to the news, USTelecom President Jonathan Spalter described the bill as "right on the money." And Kelly Cole, CTIA Senior Vice President, Government Affairs, stated that it "maximizes grants, which is vital in the deployment of broadband and closing the digital divide."

Senators Introduce the Rural Internet Improvement Act

 On November 29, Senators John Thune and Ben Ray Lujan introduced S.5137 – the Rural Internet Improvement Act of 2022. The bill's purpose is to reform existing U.S. Department of Agriculture (USDA) Rural Development broadband programs and ensure that program dollars are directed to connect rural areas that are unserved or underserved.

According to a press release for the Rural Internet Improvement Act, the legislation would do the following: 

1. Streamline USDA's broadband authorities by merging and codifying the popular Rural e-Connectivity Pilot Program (ReConnect) with USDA's traditional broadband loan and grant program;
2. Ensure ReConnect funding is going to areas most in need of reliable broadband service by limiting funding to areas where at least 90 percent of households lack access to broadband service;
3. Enhance the participation of all types of broadband providers in the ReConnect Program by removing unnecessary barriers;
4. Increase transparency by improving the challenge process in the ReConnect Program;
5. Improve the coordination between USDA and the Federal Communications Commission (FCC) on broadband programs; and
6. Require USDA to enter into a memorandum of understanding with the FCC and National Telecommunications and Information Administration to facilitate outreach to rural residents and businesses of available federal programs that promote broadband access, broadband affordability, and broadband inclusion.

No House companion legislation to S.5137 has yet been announced. 

 

The Rural Internet Improvement Act appears to be a responsible and constructive measure for helping to ensure that broadband subsidy programs are efficiently and effectively implemented by USDA. Along with interagency coordination among USDA, NTIA, and the FCC, intra-agency coordination of broadband deployment subsidy programs through streamlined processes or merging of disparate programs is no doubt essential to ensure that precious tax dollars are spent wisely and that duplicative efforts and other forms of fraud, waste, or abuse are avoided. 

 

Congressional oversight is also necessary to help ensure that the billions in subsidies Congress has allocated to promote broadband deployment are well spent. Free State Foundation Senior Fellow Andrew Long addressed this important topic his November 10, 2022 Perspectives from FSF Scholars, "Absent Oversight, the Broadband Funding Faucet Likely Will Overflow." 

D.C. Circuit Affirms the Constitutionality of Anti-Circumvention Rights

On December 6, a panel of the U.S. Court of Appeals for the D.C. Circuit unanimously upheld the constitutionality of the anti-circumvention provisions contained in Section 1201 of the Digital Millennium Copyright Act of 1998. In Green v. U.S. Department of Justice, the D.C. Circuit determined that Section 1201 is a content-neutral law that poses no more than incidental restrictions on speech content – and it does not target specific viewpoints. The decision is an important vindication of copyright owners' right to exercise control over who can access their valuable creative content. 

Online services that offer licensed access to copyrighted movies, TV shows, and music recordings for viewing or listening typically use "technological protection measures" (TPMs) such as encryption and scrambling to ensure that only paying subscribers can access such content. Section 1201 supports copyright owners' right to control access to their creative works by prohibiting the use of, or trafficking in, technologies that are intended to defeat or bypass TPMs. 

The two plaintiffs in Green v. U.S. Department of Justice want to publish works or create and sell devices intended to bypass – or at least provide examples or instructions regarding how to bypass – security measures for accessing copyrighted works. The plaintiffs in Green raised pre-enforcement First Amendment challenges to Section 1201, claiming that the law is a facially overbroad restriction on protected speech and that application of the law would unconstitutionally restrict their rights to engage in their projects relating to the bypassing of TPMs. 

In a February 2022 Perspectives from FSF Scholars entitled "D.C. Circuit Should Affirm the Constitutionality of Anti-Circumvention Rights," I discussed the Green case and wrote that Section 1201 is "a speech-neutral law intended to aid copyright owners in preventing bad actors from misappropriating the value of their property" and that "[t]he D.C. Circuit ought to affirm Section 1201's constitutionality with flying colors." On December 6, the court rightly did so. 

 

The D.C. Circuit determined that it lacked jurisdiction to hear the plaintiffs' facial First Amendment challenges because the lower court had only dismissed a request for a preliminary injunction against the enforcement of Section 1201 and not made a final decision on the merits. And the court affirmed the lower court's dismissal of plaintiff Matthew D. Green's request for a preliminary injunction because Mr. Green lacked standing to bring his facial challenge to the law. At oral argument in the case, the government conceded that Mr. Green's proposed course of conduct would not run afoul of DMCA, and thus the court concluded that Mr. Green faced no credible threat of prosecution.

Regarding the merits of plaintiffs' as-applied challenges, the D.C. Circuit rightly concluded that the statute does not target speech based on its communicative content. The court stated that "[t]he DMCA's anticircumvention and antitrafficking provisions target not the expressive content of computer code, but rather the act of circumvention and the provision of circumvention-enabling tools." As a content-neutral law, the court therefore subjected Section 1201 to intermediate scrutiny, and it determined that the law easily passes the test. 

The D.C. Circuit concluded that Section 1201 furthers an important governmental interest in combatting massive piracy in the digital environment and in creating a legal platform for launching the global digital marketplace for copyrighted works. Additionally, the court wrote that "[t]he government's evidence makes clear that 'without adequate protection against infringing serial copying,' content owners 'would not disseminate their valuable copyrighted [digital] content.'" 

These conclusions by the D.C. Circuit in Green regarding the essential role of anti-circumvention rights in safeguarding and promoting the creation and marketing of creative works are correct. Free State Foundation President Randolph May and I discuss the same basic points in our October 2020 Perspectives from FSF Scholars, "Congress Should Preserve Anti-Circumvention Rights: The Online Market for Movies and Music Depends on DMCA Section 1201.")

In sum, the D.C. Circuit was absolutely right to reject the flimsy First Amendment claims raised in Green. Constitutionally-protected free speech is an indispensable part of American freedom. But those bedrock rights were nowhere jeopardized by Section 1201. And the case was not a close call. 

 

P.S. Another recent judicial decision interpreting Section 1201's anti-circumvention provisions is analyzed in my September 2020 Perspectives from FSF Scholars, "Court Ruling Reinforces Copyright Owners' Anti-Circumvention Rights."

Senator Thune's New Broadband Oversight Initiative

I was pleased to receive a letter, dated December 6, 2022, from Senator John Thune, a longtime member of the Senate Commerce Committee and former chairman of the committee, seeking responses to a wide-ranging set of questions relating to the implementation of the Infrastructure Investment and Jobs Act (IIJA) and other programs disbursing funds to advance broadband deployment, as well as questions focused more generally on broadband issues. 

As Senator Thune points out, "the Government Accountability Office (GAO) recently found that broadband funding is spread out over 15 separate agencies and more than 130 separate programs." As he rightly observes, the fragmented approach the federal government has taken to address the digital divide raises a number of concerns." Thus, Senator Thune states that "it is imperative Congress exercises its oversight responsibilities and seeks feedback on how best to expand broadband services in the most effective, efficient, and fiscally responsive manner so that we can close the digital divide once and for all."

 

I couldn't agree more on the need for congressional oversight of the various programs providing funds for broadband. Over the past year, Free State Foundation scholars have published many papers addressing many of the issues raised by Senator Thune in his letter. [For one recent example, see Andrew Long, "Absent Oversight, the Broadband Funding Faucet Likely Will Overflow," and the many other FSF papers cited therein published by Mr. Long, Seth Cooper, and me, on broadband funding-related issues.]

 

So, I applaud this timely, important congressional oversight effort initiated by Senator Thune, and I welcome the opportunity for the Free State Foundation and its scholars to provide responsive information throughout his inquiry.

Ericsson Report Spotlights 5G's Second Wave

The latest "Ericsson Mobility Report" was released on November 30. The report summarizes the progress of wireless services on a global as well as regional bases, along with future growth forecasts. The report summarizes the progress of the U.S. in repurposing spectrum for wireless services, particular in the mid-band:

The US is one of a few countries that has significant 5G deployments across low-, mid- and high-band frequencies. Launched in April 2019, 5G services were first available in high- and low-bands. Ten service providers have deployed 5G on low-band, covering over 95 percent of the US population. High-band 5G services are available in 90 cities. The Federal Communication Commission subsequently allocated mid-bands over the course of several auctions during 2020–2022. Currently the three national service providers are rapidly deploying 5G mid-band networks nationwide. Around 80 percent mid-band population coverage is projected by the end of 2022. 

Most of the report's information pertaining to the U.S. is encapsulated in its data for North America:

5G is in the second wave of build-outs and user adoption. The addition of mid-band spectrums now enables superior multi-band 5G experiences for many users. In 2022, 5G adoption continued to grow strongly, with more than 140 million subscriptions expected by the year-end. High-speed internet access to homes and small businesses with Fixed Wireless Access has become the primary technology fueling fixed broadband growth in North America. 5G is also growing in the enterprise segment with wireless WAN to branch office locations and to serve ultra-mobile professions. By 2028, around 420 million 5G subscriptions are expected, accounting for over 90 percent of mobile subscriptions. 

Among the report's forecasts, 5G subscription penetration is expected to reach 35% in North America by the end of this year. And average monthly mobile data usage per smartphone is expected to reach 55 GB in 2028. 

For more statistics and projections regarding wireless services, see the November 2022 edition of the "Ericsson Mobility Report." 

Senators Urge NTIA to Acknowledge Role of Broadband via Unlicensed Spectrum

Seven Senators representing states with significant rural populations recently expressed their concerns regarding the exclusion of offerings operating solely within unlicensed spectrum from the definition of "Reliable Broadband Service" adopted by the National Telecommunications and Information Administration (NTIA) in connection with its $42.45 billion Broadband Equity, Access, and Deployment (BEAD) Program.

In a letter dated November 22, 2022, Senators Steve Daines (R-MT), Marsha Blackburn (R-TN), John Barrasso, M.D. (R-WY), Cynthia M. Lummis (R-WY), Ted Cruz (R-TX), Thom Tillis (R-NC), and John Cornyn (R-TX) urged Assistant Secretary of Commerce for Communications and Information and NTIA Administrator Alan Davidson "to continue working to advance broadband deployment in rural states and unserved areas by remaining technology neutral and creating rules and funding opportunities that allow all forms of broadband technology to compete."

NTIA's Notice of Funding Opportunity (NOFO) for the BEAD Program defines "Reliable Broadband Service" in relevant part as "broadband service that … is accessible to a location via … terrestrial fixed wireless technology utilizing entirely licensed spectrum or using a hybrid of licensed and unlicensed spectrum." Conspicuously absent from this list is broadband delivered exclusively by means of unlicensed spectrum.

According to the Wireless Internet Service Providers Association (WISPA), as of July 2020 its members delivered broadband over unlicensed spectrum "to approximately nine million Americans, business, anchor institutions and first responders." As a practical matter, fixed wireless Internet service providers (WISPs) are particularly well suited to "serving the hardest to reach, unserved areas of rural America."

Free State Foundation scholars long have argued that broadband infrastructure subsidy programs should embrace the concept of technological neutrality. For example, in a June 2021 Perspectives from FSF Scholars, FSF President Randolph May and I took issue with President Biden's proposal to "future proof" government-subsidized broadband infrastructure, which we interpreted as an intention to favor blindly fiber over other proven solutions:

Should the Biden Broadband Plan make available massive subsidies solely to one modality – fiber – under the meaningless guise of "future proofing," it will discourage continued private investment in otherwise viable alternatives and undermine the competition given birth by a longstanding adherence to the principle of technological neutrality.

With respect to any given location, its unique features (population density, geographic features, and so on) can favor certain different distribution platforms –including fiber, cable, DSL, 5G, satellite, and fixed wireless – over others. Such factors influence investment choices in the competitive broadband marketplace, and government-led efforts to extend broadband infrastructure to areas still unserved ought to encourage similarly efficient and informed decisionmaking by subsidy recipients.

As it stands, however, the BEAD Program's definition of "Reliable Broadband Service" renders ineligible for subsidies WISPs exclusively utilizing unlicensed spectrum, thereby constraining artificially the pool of potential applicants.

In addition, and as the Senators highlighted in their letter, the exclusion "runs the risk of wasting billions of taxpayer dollars by duplicating services in areas that already have access to speeds well above 25/3 Mbps, 100/20 Mbps or even higher, instead of prioritizing rural communities that are truly unserved."