Wednesday, November 30, 2022

New Study Touts the Affordability of Mobile Broadband in America

On November 30, CTIA announced the publication of "Unpacking the Cost of Mobile Broadband Across Countries," a study by Oxford Economics. The study examines consumer prices for mobile broadband services in different countries and analyzes the affordability of those services in the U.S. and other countries. According to Oxford Economics:

We find that, across all plans, the United States consistently ranks in the most affordable half of the distribution when accounting for the incomes earned by the average household. This is especially true for entry-level plans, with the US ranking as the 3rd most affordable for this mobile service category among the 20 benchmark countries, with an annual cost equivalent to 0.3% of the average household personal disposable income… 


Furthermore, our analysis shows US affordability has improved substantially between 2018 and 2021, with entry-level plans falling by 44% as a proportion of household disposable income. 

The study is worth reading in full, and it can be found online at CTIA's website. 


Free State Foundation scholars previously have highlighted the pro-consumer pricing performance of broadband Internet services over the last few years – and particularly in the face of harsh inflation. The affordability of mobile broadband services in the U.S. is a fortunate result of the strong private network investment, innovation, and competition in the U.S. wireless market. Preserving the existing federal light-touch policy framework for regulating communications services – including mobile broadband services – is essential to ensuring that mobile services remain affordable for Americans. 

Wednesday, November 23, 2022

Thanksgiving Day 2022

Ever since I founded the Free State Foundation in 2006, I have distributed special holiday messages on Memorial Day, Independence Day, and Thanksgiving. Upon re-reading last year's Thanksgiving message, I realized it captures what I would want to say now, and perhaps on future Thanksgivings too. So, without alteration, it's reproduced immediately below.

*     *     *

To me, Independence Day, Memorial Day, and Thanksgiving are uniquely American holidays, bound together in uniquely American ways. By this I don't mean to say that other nations don't celebrate holidays that perhaps have the same names. And I don't mean to say that those nation's holidays don't commemorate aspects of their own histories and traditions that, in some respects, may be like our own.

What I do mean to say is that we celebrate Independence Day, Memorial Day, and Thanksgiving – and understand, or should understand, what they signify as national holidays – in our uniquely American context.

It is not necessary to accept, literally, the grade-school version of the first Thanksgiving in 1621 – which took place within a year of the Mayflower's landing at Plymouth Rock – to draw inspiration from the story of the Pilgrims' pause to give thanks. Regardless of the exact circumstances – and it now appears that the term "Thanksgiving" was not used at that meal – their prospects in their new American home remained highly uncertain.

Last year I wrote about the 400th anniversary of the Mayflower Compact, and I won't repeat all of that here. The key point is that the Compact, a declaration of self-government entered into by mutual consent, is an often-overlooked foundational American document. Those Pilgrims signing agreed to join together to form a "civil body politic" subject to "just and equal" laws. Not merely any laws.

In much the same way you don't have to accept, literally, the grade-school origin story of Thanksgiving to draw inspiration from the holiday today, you don't need to ignore the ugly history of slavery and Jim Crow in America to draw inspiration from the true meaning of the words of the Declaration of Independence. The Declaration's proclamation that "all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness," might not mean as much absent the Mayflower Compact's covenant, a century and half earlier, to establish a civil society subject to "just and equal laws." In other words, a line can be drawn from a proper understanding of the Mayflower Compact to a proper understanding of the Declaration of Independence, a thread in the establishment of the rule of law in America that ought to bind us together.

In the same way that the men who drafted the Mayflower Compact and the Declaration of Independence were not without their flaws, our leaders who have sent men and women to fight America's wars are not without theirs. Thus, some of America's wars may be viewed as more justified, or just, than others. But we celebrate Memorial Day not to honor our wars but to honor Americans who paid the ultimate price in answering their country's call.

Here then is the sense that I consider Thanksgiving, Independence Day, and Memorial Day together. The Founders, concededly not perfect men, possessed sufficient wisdom to bequeath a Constitution that framed a government that enables us to engage in the continuing project of forming "a more perfect Union.” Without the sacrifices of those we honor on Memorial Day, or the wisdom of those who drafted the Declaration in 1776 or the Mayflower Compact in 1620, the American experiment in self-government, under the rule of law, would not exist as we know it.

To my mind, it doesn't bode well for our country's future when so many today relish invoking the black marks in our history as a reason to ignore, or even obliterate, the good from which we can and should rightly draw inspiration. It bodes ill when so many relish silencing – "cancelling" in today's lingo – fellow Americans for uttering thoughts which with they disagree or consider out of fashion. This is not principally a matter of whether the First Amendment protects the right of individuals or private entities to engage in such silencing – it mostly does – but rather a matter of whether doing so comports with the constitutional culture that the free speech clause of the First Amendment is intended to nurture.

On this Thanksgiving, aside from enjoying a traditional Thanksgiving dinner with all the fixings, I'm going to draw inspiration from what I consider to be the uniquely American links between Thanksgiving, Independence Day, and Memorial Day. I remain unabashed in my belief that America is a unique nation, blessed with a unique form of government, one preserved by those who have paid the ultimate sacrifice in blood in defending our freedoms. Any inspiration that may be drawn from these three uniquely American national holidays ought to be in the service of a renewed commitment to engage, as informed citizens, in the preservation of the rule of law.

With that in mind, as always, I wish you a Happy Thanksgiving, and perhaps even one that is inspiring too!

With best wishes,





PS: #GivingTuesday is November 29. If you are able to make a contribution to support our free market, pro-property rights, rule of law-oriented work, we would be grateful. Please donate here.


Tuesday, November 22, 2022

Arrests Made in Criminal Copyright Infringement Case Involving E-Book Piracy Ring

On November 16, the U.S. Attorney's Office for the Eastern District of New York announced the indictment and arrest of two Russian nationals for criminal copyright infringement and other charges in relation to their alleged operation of a massive online e-book piracy website operation.

The Office's press release states:

As alleged in the indictment and court filings, Z-Library bills itself as "the world's largest library" and claims to offer more than 11 million e-books for download.  Z-Library, which has been active since approximately 2009, offers e-book files in a variety of file formats, stripped of their copyright protections, and encourages users to upload and download titles. Many of the e-books offered by Z-Library are protected intellectual property for which authors hold copyrights and publishers hold exclusive distribution rights, and which Z-Library has no right or license to distribute, and which are available elsewhere only with anti-circumvention measures applied. As such, a central purpose of Z-Library is to allow users to download copyrighted books for free in violation of U.S. law. In addition to its homepage, Z-Library operates as a complex network of approximately 249 interrelated web domains. As part of this action, those domains were taken offline and seized by the U.S. government.

Like any other defendants, the defendants named in U.S. v. Napolsky and Ermakova are entitled to a presumption of innocence, and we can expect a future verdict based on the evidence. But what may safely be said at this point is that the trafficking of copyrighted works that is alleged in the complaint is precisely the type of criminal conduct that federal law enforcement ought to be targeting. Civil copyright enforcement is typically ill-equipped to deal with mass-scale piracy operations run by criminals whose intent is to evade the law. 


Free State Foundation President Randolph May and I address the topic of criminal copyright enforcement in our book, Modernizing Copyright Law for the Digital Age: Constitutional Foundations for Reform (2020).

Monday, November 21, 2022

FCC Should Stand by Its Rules and Its 2020 Ligado Order

Ligado Networks submitted an ex parte letter to the FCC on November 16, calling for a denial of Iridium's petition for a stay of the Commission's 2020 L-Band Order. The long-delayed 2020 order approved deployment next-generation wireless services in valuable L-band spectrum. The Commission should deny the petition because it lacks legal support and there is no risk of immediate harm to Iridium.  

As Free State Foundation President Randolph May and I have previously explained, the 2020 order authorizing Ligado to deploy a hybrid satellite-terrestrial wireless network using its licensed L-band spectrum followed an extraordinarily lengthy, careful process. The resulting decision was informed by technical analysis by FCC staff engineers and based on agency rules defining "harmful interference." And it was fully compliant with the Administrative Procedures Act. The order contains tailored safeguards against potential harmful signal interference with incumbent operators in adjacent spectrum bands, including specific signal power limits and other remediation measures.

Iridium's stay petition states that its operations could be subject to interference from Ligado's network. It claims that its petition is supported by a September 2022 National Academies of Sciences, Engineering, and Medicine (NAS) report that reviewed the record in the FCC's L-band proceeding. Notably, no new testing was conducted for the NAS report. More importantly, and as Ligado pointed out in its responsive letter, the NAS report expressly relied on the report authors' own definition of "harmful interference" – and not on the Commission's rules defining "harmful interference." Thus, the NAS report made no determination about whether Ligado's network would cause "harmful interference" according to the Commission's rules. And, further to the point, the NAS report acknowledged that it was not making an evaluation of the correctness of Commission's decision in the 2020 order. 


Iridium's stay petition amounts to asking the Commission to disregard its own rules defining "harmful interference." But the Commission should stick to its rules as well as its careful decision from 2020 based on those rules.


Additionally, Ligado has publicly stated that it is not going to deploy its terrestrial wireless operations in the L-band while it negotiates with NTIA over these matters. Iridium is therefore facing no immediate harm. In sum, the case for a stay on the 2020 order is without merit. 

Friday, November 18, 2022

Report Shows Big Boost in Broadband Speeds for Consumers in 2022

The "OpenVault Broadband Insights" (OVBI) report for the third quarter of 2022 has just been released. It analyzes data on broadband speeds and traffic volumes compared to earlier time periods as well as usage patterns by consumers. Overall, the OVBI report shows that broadband speeds experienced by American consumers have risen sharply over the last 12 months.

This OVBI report insight is astonishing: "subscribers’ self-selection and service providers' automatic upgrades have resulted in increases of as much as 100% in key speed metrics." Indeed, one of the most interesting set of figures contained in the report concerns consumer adoption of different speed tiers. As found in the report: 

  • The 1+ Gbps speed tier rose to 15.4% of all subscribers, up more than 35% compared to a year earlier;
  • The 200 Mbps-400 Mbps speed tier rose to 54.8% of all subscribers, doubling in size from a year earlier;
  • The less-than-50 Mbps speed tier shrank to 4.7%, down over 50% from a year earlier.

Additionally, the OVBI report includes an insightful "snapshot of the average U.S. broadband household." According to the report, for the third quarter of 2022, average download/upload speeds for U.S. households was 347.8 Mbps/23.5 Mbps. And the average upload/download consumption was 463.9 GB/31.6. Among other things, the OVBI report also examines usage among Affordable Connectivity Plan (ACP) plan participants, high-volume "power users," and usage-based billing plan subscribers. The OVBI report can be found at OpenVault's website


These positive metrics regarding American consumers' broadband experience that are identified in the OVBI report for the third quarter of 2022 are a happy result of the strongly competitive and investment-friendly environment for broadband Internet services that has prevailed under the FCC's light-touch policy framework. Free State Foundation President, Senior Fellow Andrew Long, and I reiterated the importance of the existing market-oriented policy toward broadband in our July 2022 comments to the Commission for its forthcoming 2022 Communications Marketplace Report.

Thursday, November 17, 2022

Draft Bill Would Treat Broadband Subsidies as Nontaxable

Yesterday Senator Angus King (I-ME) became the latest cosponsor of the Broadband Grant Tax Treatment Act (BGTTA), joining a bipartisan group that includes Tim Kaine (D-VA), Roger Wicker (R-MS), Rev. Raphael Warnock (D-GA), and Shelley Moore Capito (R-WV). Introduced by Senators Mark Warner (D-VA) and Jerry Moran (R-KS), the BGTTA would exempt certain federal broadband grants from taxation – and thereby maximize the utility of that funding.

Currently, the IRS can shield from taxation certain broadband subsidies, as it did in 2010. Beginning next year, however, the 2017 Tax Cuts and Jobs Act will require that the Internal Revenue Service (IRS) treat all federal grants as taxable income.

The BGTTA would exclude from the definition of "taxable income" broadband infrastructure funding derived from the Infrastructure Investment and Jobs Act (most notably, the $42.45 billion Broadband Equity, Access, and Deployment (BEAD) Program) and the American Rescue Plan Act (in particular, the $350 billion State and Local Fiscal Recovery Funds Program and the $10 billion Coronavirus Capital Projects Fund).

In a letter dated November 2, 2022, to leadership of the Senate Finance Committee and the House Committee on Ways and Means, a group of trade associations (the Competitive Carriers Association, CTIA – The Wireless Association, NTCA – the Rural Broadband Association, TIA – The Telecommunications Industry Association, USTelecom – The Broadband Association, and WIA – Wireless Infrastructure Association) urged passage of the BGTTA.

Specifically, they wrote that "if Congress fails to act, grant recipients will be required to return as much as 21 percent of the broadband grants to the federal government in the form of taxes" and "it is … incumbent upon Congress to act to free the ARPA and IIJA broadband grants from taxation and ensure all of the broadband grants awarded will be used to reach Americans with connectivity needs."

Also on Wednesday, Senator Warner stated at the 2022 USTelecom Broadband Investment Forum that he is "engaged [in] real-time conversations with the finance committee and others to see if we could get this included (in) the end-of-the-year package."

At that same event, his fellow sponsor of the BGTTA Senator Moran reportedly "advocated robust congressional oversight," argued that "Congress should use its power of the purse to promote executive agency accountability," and "called for close coordination between the FCC, the National Telecommunications and Information Administration, and the [Department of Agriculture's] Rural Utilities Service."

In "Absent Oversight, the Broadband Funding Faucet Likely Will Overflow," a Perspectives from FSF Scholars published last week, I warned that, without improved interagency coordination, more federal dollars than are required to connect locations as yet unserved could be disbursed.

Whether taxed or not, the need to ensure the efficient and responsible allocation of broadband subsidies remains paramount.

Wednesday, November 16, 2022

Recon Analytics' Report Critiques the CBRS Shared Spectrum Approach

A report was released by Roger Entner of Recon Analytics on November 14, titled "CBRS: An Unproven Spectrum Sharing Framework." There is a decade-long technical debate about whether spectrum bands ideally suited for commercial wireless services can or ought to be designated for use on an exclusive licensed basis or instead be shared by federal agency users with licensed commercial users and unlicensed users. For the 3.45-3.55 GHz band spectrum license auction, which was conducted by the FCC earlier this year, 100 MHz of spectrum was cleared for exclusive commercial use by licensees. By contrast, Citizen's Band Radio Service (CBRS) spectrum in the 3.55-3.7 GHz range is shared by government incumbents, priority access licensees (PALs), and General Authorized Access (GAAs) users.

Entner's report generally favors the exclusive licensed use approach to spectrum and criticizes the spectrum sharing approach undertaken for the CBRS band. The report, along with reactions to the report, is worth considering as the discussion continues regarding the proper allocation of the lower 3 GHz spectrum band and others for repurposing to commercial wireless services.

Monday, November 14, 2022

Panelists Tackle Major Questions About the Future of Administrative Law

The Federalist Society held its 2022 National Lawyers Convention on November 10 through November 12. The Convention panel videos are now available online, including one titled "Major Questions Doctrine: West Virginia v. EPA?" The panel, moderated by Judge Edith Jones of the Fifth Circuit Court of Appeals, features Professors Jennifer Mascott and Thomas Merrill, as well as top-notch litigators Ian Gershengorn and Yaakov Roth. Like other events featuring commentary and analysis of the Supreme Court's 2020 decision in West Virginia v. EPA, the panelists discussed the case as a matter of textual interpretation and interpretative canons, in light of the non-delegation doctrine, in view of Chevron doctrine, and also in connection with the court's application of Chevron deference to agency determinations about the scope of their own jurisdiction in its 2013 decision in City of Arlington v. FCC.  

One interesting point made by Mr. Gershengorn about 51-52 minutes into the panel and again at about the 1 hour 21 minute mark was that net neutrality regulation constitutes "the easiest major doctrines case you're going to see" because then-Judge Brett Kavanaugh decided that net neutrality is a major question in the D.C. Circuit in U.S. Telecom v. FCC


FSF President Randolph May addressed the implications of West Virginia v. EPA for net neturality regulation in his July 2022 Perspectives from FSF Scholars, "A Major Ruling on Major Questions." And he pointed out that the court's opinion in West Virginina v. EPA actually quoted then-Judge Kavanaugh's 2017 opinion dissenting from denial of en banc review in U.S. Telecom v. FCC

Wednesday, November 09, 2022

Court Rules on Preemption of Publicity Rights Involving Copyrighted Works

On October 4, the U.S. Court of Appeals for the Second Circuit ruled that right of publicity claims brought by a plaintiff radio entertainer under state law are preempted by the Copyright Act because those claims focused upon copyrighted works involving the plaintiff rather than on his likeness or identity. 

The plaintiff in Melendez v. Sirius XM Radio, Inc. was a performer on a once-popular terrestrial broadcast radio program from 1988 to 2004. Thereafter, satellite radio provider Sirius XM licensed and airs new episodes of that program as well as past episodes that featured the plaintiff. The plaintiff filed a lawsuit against Sirius XM, alleging his right of publicity under California common law and statutory law were violated because his name and likeness were used for commercial gain without permission when Sirius XM aired promo ads and posted online ads for the program that used excerpts of the plaintiff's performances from archival episodes.

Section 301 of the Copyright Act contains a preemption clause: 

On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State. 

Free State Foundation President Randolph May and I have written about the national framework for copyrights established in the Copyright Act and Section 301's preemption of state laws in other contexts, including in our March 2022 Perspectives from FSF Scholars, "State Laws Forcing Publishers to License Ebooks to Libraries Are Unlawful."

In Melendez, the Second Circuit applied Section 301 using a two-part test to determine whether a state law claim is preempted by the Copyright Act. The first prong of the test is called the "subject matter" requirement, which applies when the claim applies to a worked fixed in a tangible medium and that is within the ambit of a category of copyrightable works. And the second prong is called the general scope or equivalence requirement, which applies when the claim involves a right that is equivalent to any of the exclusive rights that are within the general scope of Section 106 of the Copyright Act, such as the rights of reproduction and distribution.

The Second Circuit held that the state law claims raised by the plaintiff satisfied the two-part test for preemption. The court determined that the plaintiff’s statutory and common law publicity right claims applied to copyrighted works – the archival radio broadcast programs – and it also determined that his claims were not directed at the plaintiff's name, likeness, or identity separate from or beyond those copyrightable radio broadcasts.  

The Second Circuit's decision in Melendez applying Section 301 to the state publicity right claims is in accord with circuit precedent from 2020, and the court cited similar preemption decisions from the Eighth and Ninth Circuits. Apparently, there is a circuit split on this issue insofar as the Fifth, Seventh, and Tenth Circuits have rejected preemption when the state right of publicity claims involve commercial or advertising uses. 

Unless or until the Supreme Court takes up a case to resolve the circuit split, private parties who purchase or license copyrighted works should be alert to the possibility that state law claims, such as right of publicity, may be implicated by their prospective use of the copyrighted works. Those implications likely can be addressed through negotiated contract terms.  

Friday, November 04, 2022

Fiber Broadband is Going Strong in 2022

Third quarter 2022 reports from broadband Internet service providers show continued strong growth in fiber broadband networks. According to reports released in late October and early November for the third quarter:  

  • AT&T Fiber had 338,000 net subscriber additions, and it now has 6.93 million fiber broadband subscribers. 
  • Verizon gained 61,000 FiOS Internet subscribers – compared to a gain of 36,000 FiOS subscribers during the second quarter of this year – for a total of nearly 6.68 million FiOS subscribers. 
  • Lumen added 31,000 fiber broadband subscribers – up significantly from and raised its total fiber subscriber count at the end of the third quarter of this year to 889,000, up from 774,000 at the end of the third quarter of 2021. 
  • Frontier added 66,000 fiber broadband customers, a 15.8% growth rate compared to the third quarter of 2021, bringing its fiber broadband customer total to 1.5 million. 

In addition to these fiber broadband subscriber gains, broadband ISPs have continued to deploy fiber to reach many more potential subscribers. For instance, AT&T reported that "AT&T Fiber now has the ability to serve 18.5 million customer locations, and offers symmetrical speeds up to 5-Gigs across parts of its entire footprint of more than 100 metro areas." And Frontier reported that it "[b]uilt fiber to a record 351,000 locations to reach a total of 4.8 million fiber locations, nearly halfway to our target of 10 million fiber locations." 


As noted in my August 24 blog post, fiber networks offer high speeds than older technologies. The third quarter results just released by broadband ISPs reveal that even more American are benefitting from fiber networks. 

Thursday, November 03, 2022

FCC Takes Action to Unleash Wi-Fi 6E, Wi-Fi 7

On November 2, 2022, the FCC's Office of Engineering and Technology (OET) announced that it had conditionally approved 13 Automated Frequency Coordination (AFC) systems designed to enable shared use of the 6 GHz band between licensed and unlicensed devices.

By preventing harmful interference to incumbent licensed microwave links, AFC will make available 1200 MHz of high-value, mid-band spectrum to Wi-Fi 6E devices operating at standard power levels – which, in turn, will deliver to consumers increasingly faster speeds, lower latency, and better coverage.

The consumer popularity of Wi-Fi is both immense and steadily growing. Consequently, existing unlicensed spectrum in the 2.4 GHz and 5 GHz bands long has been subject to overcrowding. More capacity, particularly contiguous swaths able to support wider Wi-Fi channels – and, thus, faster speeds – was needed.

In response, the FCC in April 2020 adopted a Report and Order opening the 6 GHz band to flexible unlicensed use, including Wi-Fi.

A December 28, 2021, post to the FSF Blog reported that the D.C. Circuit largely upheld that agency action in AT&T Services, Inc. v. FCC.

The following day, FSF President Randolph May in a Press Release heralded that decision "because of the way the court broadly viewed the exercise of the Commission's core spectrum management responsibilities" and for "emphasizing the considerable degree of deference to be accorded to the FCC regarding technical spectrum management matters."

Integral to the Commission's conclusion that unlicensed devices can operate at standard power levels in the 6 GHz band both indoors and outdoors without causing harmful interference to incumbent licensed users is the role to be played by the AFC spectrum use coordination system.

(By contrast, the agency determined that indoor-only devices could operate safely at lower power levels without AFC. As a result, such devices are available today in the retail marketplace as well as from broadband Internet service providers.)

By paving the way for testing to begin, OET's conditional approval of 13 AFC database systems represents a noteworthy step forward in wireless networking – not only Wi-Fi 6E, but also Wi-Fi 7, the under-development successor specification recently demonstrated for Commissioners and agency staff by Intel Corporation and Broadcom Inc.

As those companies described in a slide deck filed in ET Docket 18-295 and GN Docket No. 17-183, Wi-Fi 7 expands network capacity by a factor of 5, latency by up to a factor of 100, and further improves coverage.