Friday, January 28, 2022

PRESS RELEASE: Ninth Circuit Panel Decision Affirming the District Court’s Denial of a Preliminary Injunction to Enjoin California’s Net Neutrality Law


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

“Like a lot of Ninth Circuit decisions, it is arguable that the court got the law wrong regarding whether California's net neutrality law is preempted. Given the inherently interstate nature of today’s tightly integrated broadband Internet networks, there’s a good chance that other circuits might reach a different conclusion regarding preemption. But the risks of Internet service providers being subjected to a legacy common carrier regulatory regime established initially to regulate railroads in the 19th century and then Ma Bell last century, and a patchwork of varying state regulatory regimes with different mandates, should prompt Congress to resolve the decades-old net neutrality controversy by adopting a new law that prevents consumer harm while recognizing the technologically dynamic nature of today’s Internet ecosystem."

Wednesday, January 26, 2022

Fixed Wireless Subscriber Growth Boosts Broadband Competition

Verizon posted strong subscriber growth for its fixed wireless services in Q4 2021, showing the increasing competitiveness of fixed wireless offerings in the home broadband market. This growth also shows the potential for fixed wireless providers to reach rural and other unserved areas as they deploy more mid-band spectrum.

Light Reading Senior Editor Jeff Baumgartner reports that Verizon added 78,000 fixed wireless subscribers last quarter, beating both expectations as well as its previous record quarterly increase of 55,000 (Q3 2021), and bringing its total fixed wireless subscribers to 228,000. Verizon also added more fixed wireless subscribers last quarter than it added in FiOS subscribers (51,000).

Notably, Verizon CEO Hans Vestberg said new fixed wireless subscribers are generally new Verizon customers and come from areas served by cable and DSL providers. This is direct evidence of fixed wireless competing for home broadband subscriptions in served markets, even if it is so far at a small scale. Broadband customers benefit from this boost to market-based competition.

Free State Foundation Director of Policy Studies Seth Cooper recently highlighted an Accenture report about the potential for fixed wireless to boost competition, availability, and service quality in rural America. That report recommended clearing more mid-band spectrum in the 3 GHz range to make high speed rural fixed wireless a widespread reality. We will be looking to see if Verizon's and other fixed wireless services make a significant play for subscribers in rural and other unserved areas as the company begins deploying C-Band spectrum and other mid-band frequencies awarded in future auctions.

Monday, January 24, 2022

Copyright Office's Strategic Plan Includes Small Claims and Modernization Efforts

On January 20, the U.S. Copyright Office released its "2022–2026 Strategic Plan: Fostering Creativity and Enriching Culture." The short plan provides a cursory overview of ongoing initiatives of the Copyright Office, including the establishment of a small claims copyright board to hear infringement controversies involving no more than $30,000. Free State Foundation President Randolph May and I recommended that Congress authorize a small claims copyright board in our book Modernizing Copyright Law: Constitutional Foundations for Reform (2020). Congress did so by passing the CASE Act in December 2020. As mentioned in a December 2021 blog post, the small claims board is expected to begin operations in the spring of 2022. 

The Copyright Office's plan also described its ongoing work "building a new Enterprise Copyright System (ECS) to make all of the Office's services digitized, interconnected, searchable, and easy to navigate." In our book Modernizing Copyright Law, FSF President May and I also emphasized the importance of updating and improving the technological capabilities of the Copyright Office. We recommended that Congress make the Copyright Office independent from the Library of Congress. In our view, structural reform of the Office would better enable the agency to dedicate and prioritize resources to accomplishing its modernization needs. Technological improvements would make it easier for Americans to register copyrights, access title information, and record title transfers. To date, Congress has not pursued structural reforms of the Copyright Office. However, as far as they go, the Office's ongoing efforts upgrade its capabilities to further its "core services of registration, recordation, and statutory licensing" are welcome. 


Although the Copyright Office's Strategic Plan doesn't offer any new details about its ongoing work, the plan does provide a reminder of its key ongoing initiatives such as small claims and Office modernization. The course of the Office's progress on both of those fronts deserve attention in 2022. 

Wednesday, January 19, 2022

Starlink's Performance Shows Prudence of Swift FCC Approval

Recent Ookla data measuring the performance of Starlink's low-Earth orbit (LEO) satellite broadband network shows the prudence of the FCC's swift approval of LEO constellations. SpaceX's Starlink, the only operational satellite broadband network in LEO providing home broadband, posted industry-leading speeds and latency for Q3 2021. Most notably, Starlink's speeds and especially its latency are generally comparable to that of many fixed broadband networks, showing that, once sufficient LEO satellites are deployed, LEO constellations, realistically, can provide high quality connectivity to rural and hard-to-serve areas where building physical networks is cost-prohibitive.

Starlink posted 87.25 Mbps / 13.54 Mbps median broadband speeds with a median latency of 44 ms, far outpacing competitors HughesNet and Viasat, which operate broadband networks at higher orbital altitudes than LEO. Starlink's speeds are over 4.5 times faster than HughesNet (19.30 Mbps/ 2.54 Mbps) and Viasat (18.75 Mbps/ 2.96 Mbps) for both download and upload. And while fixed networks have superior speeds, Starlink comes far closer to the median fixed network speeds of 119.84 Mbps / 13.54 Mbps than its higher orbit competitors, which offer speeds that are roughly a fifth or sixth of median fixed network speeds.

But latency is where Starlink especially stands out. Starlink's median latency, 44 ms, is about 15 times smaller than the median latencies of its satellite competitors, and only 2.9 times larger than the median latency for fixed networks. High latency – meaning signal delay – has long characterized satellite networks, and this makes them less attractive options than terrestrial and wireless broadband. Broadband with high latency makes certain applications that depend on split-second connections like video games, voice and video calling, and livestreaming less usable and reliable. As Commissioner Brendan Carr noted in a 2018 statement approving part of Starlink's constellation, "[LEO satellites] promise lower latency connections because they typically orbit only a few hundred miles above Earth, as opposed to many thousands." Starlink's network is delivering on that promise at an early stage.

Starlink's high speeds and low latency are important because satellites generally provide global coverage, which makes Starlink a serious contender for providing affordable, high-quality service in rural and other hard-to-serve areas. Users simply need to install a dish on their home to receive satellite broadband, avoiding the expensive and often cost-prohibitive infrastructure buildouts needed to reach rural and other hard-to-serve areas. This is precisely the consumer demographic Starlink targets with its marketing. Its website states: "Starlink is ideally suited for areas where connectivity has been unreliable or completely unavailable." So far, Starlink has 145,000 customers, a figure that's quickly grown from the 90,000 it reported in July 2021.

Ookla does note that Starlink's service performance varies by region in the United States, ranging from about 45 Mbps download in some areas to 145 Mbps download in others. But as Starlink continues to launch satellites, its coverage and network capacity will improve. Starlink has FCC approval to deploy 12,000 satellites, but so far it only has roughly 2,000 in orbit. SpaceX has already launched more Starlink satellites this month.

Even though Starlink hasn't deployed its full constellation, its broadband performance is already stronger than median fixed speeds in multiple developed countries. Starlink's median speeds for Q3 2021 in Australia, Belgium, Germany, and the United Kingdom outperformed median speeds for fixed networks in those countries. This is largely because fixed broadband is much slower in those places than it is in United States, according to Ookla's measurements.

Starlink, the first operational LEO constellation, first applied for FCC approval in 2016. Nothing guaranteed a swift approval, and the Commission could have chosen to wait longer before approving the application. Such delay often denies lifechanging technologies to Americans. Thankfully, the Commission approved LEO constellations for Starlink and potential competitors Amazon, OneWeb, Boeing, and others, including some that already have exited the market.

Free State Foundation Director of Policy Studies Seth Cooper supported Starlink's approval back in 2018. I previously highlighted a planned backhaul deal between Amazon and Verizon that will start once Amazon's LEO constellation reaches orbit in the next few years.

Starlink's early performance metrics suggest that the FCC was smart to quickly approve LEO satellites. The Commission's swift approval and support for market competition has allowed Starlink and potentially others to serve the unconnected Americans our federal government has spent billions trying to reach over the last decade.

Tuesday, January 18, 2022

Bid Winners in 3.45 GHz Band Auction Will Benefit Consumers with Fast 5G

On January 14, the FCC announced the close of its 3.45-3.55 GHz band auction. And it is reported that AT&T and DISH Networks were leading bid winners for spectrum licenses in the band, with T-Mobile and UScellular also submitting winning bids. According to the Commission's notice: "Auction 110 raised a total of $22,418,284,236 in net bids and $22,513,601,811 in gross bids, with 23 bidders winning a total of 4,041 licenses." 

The successfully completed 3.45 GHz band auction will put much needed mid-band spectrum resources into use for commercial wireless 5G services. But there is more that the FCC can do to help supply America's growing demand for spectrum. As explained in my February 2021 Perspectives from FSF Scholars, "Fast Action on the Lower 3 GHz Band Will Secure America's 5G Future." Also, Free State Foundation President Randolph May and I had addressed important guiding principles to guide Congress and the Commission in addressing this subject in our November 2021 Perspectives, "Constitutional Considerations for Proper Spectrum Policy: A Preference for Private Property Rights and Market Competition." 

Monday, January 17, 2022

Growing Mobile App Economy Depends on Healthy Broadband Infrastructure Market

For a roundup of mobile app consumer trends among different countries, look no further than App Annie Research's "State of Mobile in 2022" report. Among other things, the report observes continuing increases in the amount of time consumers spend using on their mobile devices. The global average climbed to 4.8 hours per day, and the U.S. average rose to about 4.5 hours per day. The report ranks the most popular apps for games, news, ridesharing and travel, shopping, social media and more. And it highlights the lucrative market for mobile advertising.

Although the "State of Mobile in 2022" report focuses on app content and consumer preferences, the heavy-volume use of streaming mobile apps and mobile downloads depends on a pro-investment and pro-innovation environment for fixed and mobile broadband network facilities that can supply ever-growing demands. As Free State Foundation scholars have explained, such an environment can be secured by making more spectrum available for commercial services, removing regulatory cost barriers to fiber deployment (because mobile traffic also relies heavily on wireline networks), and avoiding regulatory obstacles to 3G to 5G transitions

Wednesday, January 12, 2022

Supreme Court Should Leave Alone a Sound Ruling on Cable Franchise Fee Limits

The Supreme Court should promptly deny certiorari in City of Eugene v. FCC, a case that has been pending before the court since November 4, 2021. The cert petition, filed by numerous localities, argues for a non-textual reading of the Communications Act and invents a non-existent preemption issue, all to impose excess fees on information services provided over cable systems. But the text of the Act prohibits such fees.

In City of Eugene, a unanimous Sixth Circuit panel correctly interpreted the Communications Act as expressly preempting imposition of franchise fees by states and local governments on non-cable services provided over cable systems. The lower court upheld most of the FCC's 2019 order that clarified limits on local governments' authority to impose such fees. Free State Foundation Director of Policy Studies Seth Cooper briefed the court's "sensible" opinion shortly after its publication, and also observed that the mostly-affirmed 2019 order stopped localities from imposing fees "beyond the statute's limits, potentially draining cable operator investment in their broadband Internet networks."

To review, Section 541 of the Cable Act of 1984 – which is incorporated into the Communications Act – requires cable providers to receive authorization from a local franchising authority (LFA) before providing cable service in the LFA's jurisdiction. In exchange for granting this franchise, LFAs can subject franchisees to franchise fees, which Section 542(g)(1) defines as "any tax, fee, or assessment of any kind imposed by a franchising authority or other governmental entity on a cable operator or cable subscriber, or both, solely because of their status as such." But Section 542(b) caps franchise fees at "five percent of a cable operator’s gross revenues for cable services for any 12-month period." And critically, Section 544(b)(1) expressly prohibits regulation of non-cable services in franchise agreements: an LFA "in its request for proposals for a franchise… may establish requirements for facilities and equipment, but may not… establish requirements for video programming or other information services[.]"

The Sixth Circuit upheld most of the FCC's 2019 order that preempted the City of Eugene's 7% tax on cable broadband revenues. In an opinion by Judge Raymond Kethledge, the court upheld the FCC's "mixed use rule," which prohibited LFAs from taxing broadband Internet access service in franchise agreements, pursuant to the Section 544(b)(1)'s prohibition on "establish[ing] requirements for video programming or other information services." Because the Restoring Internet Freedom Order classified broadband Internet access service as an information service, it obviously fit under the prohibition. The Sixth Circuit also determined that it didn't matter that Eugene taxed broadband by city ordinance instead of through its franchise authority—either way, it acted as an LFA subject to the Communications Act. Lastly, because Eugene's broadband tax was in direct conflict with the prohibition on LFAs regulating information services, the lower court concluded that the tax was expressly preempted by the Communications Act.

Eugene and numerous localities now argue that the Sixth Circuit decision conflicts with Oregon Supreme Court precedent and presents a novel implied preemption issue. However, as NCTA notes in its Brief in Opposition, the Oregon Supreme Court interpreted the relevant portion of the Communications Act years prior to the FCC's 2019 order, meaning the record considered by the Oregon Supreme Court lacked the Commission's interpretations – unlike the Sixth Circuit's decision that benefited from a full record and the position of the relevant expert agency. And because the Sixth Circuit opinion relied on express preemption, there is no issue regarding implied preemption in this case. These two reasons support denial of Eugene's cert petition.

Policy reasons further support denial. When Congress passed the Cable Act of 1984, it sought to eliminate competitive distortions in the market that arose from excess demands and taxes on cable providers. Cable providers often paid multiple fees for access to a single right-of-way prior to the Cable Act. Cable companies likely passed the cost of these excesses to consumer in the form of higher prices. The FCC's interpretation of the LFA-related statutory provisions, which the Sixth Circuit upheld, serves the law's purpose of "minimiz[ing] unnecessary regulation that would impose an undue economic burden on cable systems."

Free State Foundation Scholars have long supported the FCC's 2019 order precisely because it minimizes unnecessary regulation on cable systems. The Free State Foundation filed reply comments in the proceeding that led to the Commission's order. And blog posts were written in defense of the 2019 order in July 2019, May 2019, and September 2018.

The Supreme Court should deny Eugene's cert petition. Congress expressly prohibited the sorts of fees on information services offered over cable systems that Eugene seeks to impose. And the Sixth Circuit rightly upheld the FCC's rules doing just that.

Friday, January 07, 2022

D.C. Circuit Decision Clears the Way for a Wave of Wi-Fi 6E Devices

As Free State Foundation Director of Policies Studies and Senior Fellow Seth Cooper explained in his post to this blog yesterday, the FCC's just-released Eleventh Measuring Broadband America Fixed Broadband Report confirms that high-speed Internet access speeds continue to rise dramatically.

As they do, the Wi-Fi networks that consumers rely upon to connect their devices to broadband service likewise must evolve, lest they serve as a bottleneck. Wi-Fi 6, the latest iteration of the ubiquitous wireless networking standard, can deliver that crucial complementary capacity – but requires large swaths of relatively unencumbered spectrum to do so.

In 2020, the FCC delivered, opening up the 6 GHz band to flexible unlicensed use. On the heels of a D.C. Circuit decision largely affirming the Commission's bold action, both consumer electronics manufacturers and Internet service providers (ISPs) are making available "Wi-Fi 6E" devices able to make full use of the increased speeds made possible by 5G, cable 10G, fiber, and other next-generation broadband distribution technologies.

As I explained in "Wi-Fi 6E Can Modernize Unlicensed Wireless," a February 2020 Perspectives from FSF Scholars, the "Wi-Fi 6E" label distinguishes Wi-Fi 6 devices able to operate in the 6 GHz band from those relegated to the relatively congested 2.4 GHz and 5 GHz bands.

Why is that distinction so important? The contiguous 1200 MHz of spectrum the FCC made available in the 6 GHz band makes possible the wider (160 MHz) channels required to maximize the full potential of the Wi-Fi 6 technical specification.

On December 28, 2021, the D.C. Circuit largely rejected challenges to the FCC's 6 GHz Order. For additional information, please see Free State Foundation Legal Fellow Andrew Magloughlin's post to the FSF Blog summarizing the court's decision in AT&T Services, Inc. v. FCC.

In a press release, Free State Foundation President Randolph May applauded the D.C. Circuit's recognition of "the considerable degree of deference to be accorded the FCC regarding technical spectrum management matters" and, in particular, its appreciation of the technical implications of the agency's "harmful interference" standard.

In that decision's wake, Wi-Fi 6E devices are proliferating.

The 2022 Consumer Electronics Show is underway, and companies including Netgear and TP-Link have utilized that high-profile platform to unveil new Wi-Fi 6E devices. Netgear's Nighthawk WiFi 6E Router provides speeds up to 10.8 gigabits per second (Gbps) and the low latency (lag) that hard-core gamers, among others, crave.

Meanwhile, TP-Link's Archer AXE200 Omni AXE11000 Tri-Band Wi-Fi 6E Router utilizes mechanically rotating robotic antennas to deliver speeds up to 11Gbps:

Source: TP-Link's website.

In addition, ISPs are beginning to roll out Wi-Fi 6E-compatible routers directly to their subscribers. On January 3, 2022, Comcast announced that the new version of its xFi Advanced Gateway supports Wi-Fi 6E – and thus is the "first to support the speeds of the future – symmetrical Gigabit speeds" that the cable 10G platform promises to deliver.

In December 2021, Verizon also revealed a new router able to operate in the 6 GHz band. Notably, while the device is compatible with both its FiOS fiber-based offering and Verizon 5G Home Internet service, the company is providing it to subscribers of the latter first.

Delivering average download speeds that average 300 Mbps and peak at 940 Mbps, Verizon's robust fixed wireless broadband offering leaves no doubt that fixed 5G is a viable alternative to traditional home Internet service options. And Verizon's decision to prioritize the deployment of its Wi-Fi 6E router to its fixed 5G customers underscores the extent to which these two wireless distribution technologies complement one another.

Ookla Insights: U.S. Leads World in 5G Availability

Ookla's report on global 5G speeds ranks United States 5G networks number one in the world for 5G availability, more than doubling the performance of networks in China, Canada, and almost the entire continent of Europe. This is an encouraging sign ahead of January 19th, the date when AT&T and Verizon will begin activating the high-capacity C-Band spectrum that should substantially boost U.S. 5G network speeds. But it also highlights the need to free more spectrum for 5G. 

Ookla defines 5G availability as the "percent of users on 5G-capable devices [who] spent the majority of their time on 5G," and the United States sits atop the world at 49.2%. This means that roughly half of all 5G device users in the U.S. had 5G connections during a majority of their time on wireless networks. China (20.1%), Canada (23.7%), Japan (7.6%), and the vast majority of European countries are far behind the U.S. on 5G availability, with only Netherlands (45.3%) and South Korea (43.8%) posting comparable availability above 40%.

The report also highlights that the U.S. lags behind other countries in median 5G speeds, but this is partly a function of spectrum policy and should be improved by fast-approaching carrier deployments of C-Band spectrum and other mid-band frequencies like the recently concluded 3.45 GHz auction. So far, U.S. 5G networks have largely relied on low-band spectrum for nationwide 5G deployment and high-band spectrum in certain dense urban settings. Mid-band spectrum, such as C-band spectrum and other nearby frequencies, has the combination of high-capacity and propagation over distances that leads to nationwide fast speeds.

Deployment of C-Band spectrum and other mid-band frequencies will also improve 5G speeds by densifying networks so a higher number of base stations each support fewer customers. The FCC should take additional actions to free mid-band spectrum for commercial use, such as setting a date for the 2.5 GHz auction and announcing auctions in additional bands, so U.S. 5G networks improve their speed ranking.

But the report also highlights that widespread 5G availability in the U.S. is in some ways more important than posting the fastest speeds. For example, Norway ranks second among countries for median 5G download speeds at 426.75 Mbps, but its availability is a mere 8.4%. This means 91.6% of Norwegians spend less than half their time on 5G when connected to wireless networks. This fact suggests that Norway's and other low-availability countries' top speed rankings are paper tigers – their 5G is fast but rarely used in real life. U.S. consumers are experiencing 5G far more often, and at high speeds, like the 160.41 Mbps median 5G speed Ookla measured in our nation's capital.

The United States' first place ranking for global 5G availability in Ookla's report is welcome news. The FCC should continue to act – especially by auctioning more mid-band spectrum – so the U.S. can also claim a top global ranking for speeds.

Thursday, January 06, 2022

FCC Report Finds Consumers Are Benefitting From Fixed Broadband Improvements

On January 5, the FCC released its Eleventh Measuring Broadband America Fixed Broadband Report. The Commission's report provides evidence of the strong performances of fixed broadband Internet service providers (ISPs) amidst government lockdowns, as consumers have upgraded to higher speed tiers and benefitted from the improved capabilities of cable and fiber broadband networks.  

The Eleventh Measuring Broadband America Fixed Broadband Report provides a snapshot of the performance of eleven ISPs during the months of September and October 2020. Significantly, the FCC's report found a significant rise in advertised broadband speeds: "The weighted average advertised speed of the participating ISPs was 193.9 Mbps, representing an increase of 33% from the previous year's Tenth Report and over 43% from the Ninth Report." This metric is noteworthy in light of the report's finding that "[f]or most of the major broadband providers that were tested, measured download speeds were 100% or better than advertised speeds during the peak hours (7 p.m. to 11 p.m. local time)." Indeed, all five cable broadband ISPs tested in the report delivered downstream and upstream speeds in excess of what they advertised. Taken together, median download speeds for those cable ISPs averaged 114% of their advertised speeds, and their upload speeds averaged 111%. 


(Chart 2: Weighted average advertised download speed among the top 80% service tiers based on technology  – FCC, Eleventh Measuring Broadband America Fixed Broadband Report (2021))

The FCC's report also tested the consistency of fixed broadband speeds, and the results were favorable:

Customers of Charter, Comcast, Cox, Mediacom, Optimum, Frontier Fiber, and Verizon, for example, experienced median download speeds that were very consistent; i.e., they provided greater than 95% of the advertised speed during peak usage period to more than 80% of panelists for more than 80% of the time. In particular, Charter, Comcast, Cox and Mediacom provided 100% or greater than their advertised speed during the peak usage period to more than 80% of their panelists for more than 80% of the time. 

Not surprisingly, the FCC's report observed that fiber broadband services had the lowest latency and lowest packet loss among the different fixed network technologies, and cable broadband services also were superior to DSL in those performance categories.


According to the FCC's report, "a large number of subscribers, between 30% to 60%, migrated to a higher speed tier using a different technology from what they had in September-October 2019. This is in sharp contrast to the previous year when only 1% to 8% of subscribers migrated to a different technology." Quite reasonably, the report suggested that the notable migration of consumers to higher download speed tiers and to faster technologies was related to the COVID crisis: "[B]y the time the validated data collection period for this Report was underway, approximately 42% of the U.S. workforce was working remotely from their homes. Similarly, 93% of households reported some form of remote learning and distance education during this time period." The report offered a positive verdict: "Despite all the challenges, the MBA measurements showed that for the most part, the ISP networks were able to keep up with this unprecedented increased load on their networks."


The benefits for consumers identified in the FCC's Eleventh Measuring Broadband America Fixed Broadband Report should serve as reminders of the importance of the Commission maintaining a light-touch regulatory policy that fosters strong private sector investment in next-generation network infrastructure. As pointed out in Free State Foundation comments to the Commission and in Perspectives from FSF Scholars papers – including FSF Senior Fellow Andrew Long's paper "Lessons From the FCC's Broadband Deployment Report" and my paper "The FCC Should Reaffirm Its Successful Internet Freedom Policy" – the Title I status of broadband Internet services has encouraged the heavy investment in fixed and mobile network facilities that is necessary to enable broadband networks to supply growing consumer demands. In 2022, the Commission should stick to this pro-investment and pro-consumer broadband policy. 

Tuesday, January 04, 2022

PRESS RELEASE: President Biden's Statement on FCC-FAA Dispute

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

“While I have a great deal of confidence in the spectrum engineering expertise of the FCC’s commissioners and staff and the decision the agency initially reached, airline safety concerns can never be taken lightly. Because of the importance to the U.S. of getting 5G services launched as soon as possible, consistent with a proper resolution of the safety concerns of the FAA and DOT, I’m pleased that President Biden has become involved in spurring the parties to reach a proper quick resolution. And it’s encouraging that President Biden says he is committed to rapid 5G deployment, because presidential leadership may be needed in other regards to make this commitment a meaningful reality."

Monday, January 03, 2022

New York Bill to Mandate Ebook Access and Prices Draws the Veto It Deserves

On December 29, New York Governor Kathy Hochul wisely vetoed a bill that would have imposed compulsory licensing and rate regulation on copyrighted books made available in electronic formats. New York Assembly Bill 5837, if it had become law, would have granted to New York public libraries a state-level special right of access to ebooks, audiobooks, and other digital literary works that belong to copyright owners. Such access would have been based on rates deemed reasonable by courts in that state. But New York's AB 5837 clashed with the rights of copyright owners that are secured by federal law and its terms clearly were preempted. The veto of the bill was well deserved. 

New York's AB 5837 is roughly identical to a bill that was recently signed into law in Maryland. Some of the serious legal problems with that state's mandate were described in my blog post from December 14, 2021: "Maryland's Unlawful Compulsory License for Ebooks Should Have a Short Shelf Life." In short, the Copyright Act confers broad, exclusive federal jurisdiction over copyrights. Attempts by states to directly regulate access to copyrighted works clash with copyright owners' exclusive rights to decide prices and terms regarding who can reproduce, distribute, display, and publicly perform their works. 

Free State Foundation President Randolph May and I also wrote about federal jurisdiction over copyrights in our books The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective (Carolina Academic Press, 2015) and Modernizing Copyright Law for the Digital Age: Constitutional Foundations for Reform (Carolina Academic Press, 2020).

Notably, not a single legislator in New York or in Maryland voted against either of those bills to impose state-level forced access mandates on ebooks and other copyrighted works. Before any state legislatures consider similar legislation, I recommend that their members electronically access the following reading materials: Sections 106 and 301(a) of the Copyright Act.