Iowa Is State No. 6 to Pass a Privacy Statute

On March 28, Iowa Governor Kim Reynolds signed Senate File (SF) 262, "an Act relating to consumer data protection, providing civil penalties, and including effective date provisions." Following in the footsteps of California (here and here), Virginia, Colorado, Utah, and Connecticut, Iowa has become the sixth state to pass its own unique take on a comprehensive data privacy law.

With Congress still unable to agree upon the details of a national privacy framework, this most recent addition to the steadily expanding list of inconsistent state statutes further exacerbates compliance headaches for companies and adds to consumer confusion.

Laws in California and Virginia already are in effect. The start date for those in Colorado and Connecticut is July 1, 2023. Utah's statute becomes valid at the end of this year. And Iowa's SF 262 kicks in on January 1, 2025.

In other state-level privacy news, both California and Colorado recently finalized rulemaking proceedings arising from their respective comprehensive data privacy statutes:

• On March 29, the California Office of Administrative Law approved the initial set of rules implementing the California Privacy Rights Act, also known as Proposition 24. Adopted by the California Privacy Protection Agency (CPPA), the first-of-its-kind state agency specifically dedicated to privacy, the rules became effective immediately. By statute, however, California's Office of Attorney General cannot initiate enforcement efforts until July 1. (Once officially processed, those rules, which substantively are unchanged from the drafts voted on by the CPPA in February, will be available here.)
• On March 15, the Colorado Attorney General's Office announced that it had filed with the Colorado Secretary of State's Office final versions of its rules implementing the Colorado Privacy Act. Like the statute itself, those rules will go into effect on July 1.

At the federal level, meanwhile, the American Data Privacy and Protection Act, the first bill of its kind to make it out of congressional committee, remains in limbo. However, there have been two House Commerce Committee hearings on the topic of privacy thus far in 2023.

The first, entitled "Promoting U.S. Innovation and Individual Liberty through a National Standard for Data Privacy," was held by the Innovation, Data, and Commerce Subcommittee on March 1.

The second, a full Committee hearing entitled "TikTok: How Congress Can Safeguard American Data Privacy and Protect Children from Online Harms," took place on March 23.

In a media appearance shortly thereafter, Chair Cathy McMorris Rodgers (R-WA) stated that the testimony of TikTok CEO Shou Chew puts "more urgency on us passing a national data privacy law to protect [America] from the next technological tool or weapon that China may put together'" and that "[w]e need a national data privacy standard … and that's what Ranking Member Pallone and I have worked on and we're going to introduce this Congress because we need to take action."

Videos from FSF's Fifteenth Annual Policy Conference Now Available!

 All the Videos from #FSFConf15 Are Released!

Welcome and Introduction by Randolph May, President, The Free State Foundation, and the Opening Keynote Address by Congressman Bob Latta, 

Chairman, House Communications and Technology Subcommittee

Videos of Senator Ted Cruz, Ranking Member of the Committee on Commerce, Science and Transportation, and Senator John Thune, Ranking Member, Senate Subcommittee on Communications, Media, and Broadband

Keynote Address – Scott Blake Harris, Senior Spectrum Advisor, National Telecommunications and Information Administration (NTIA)

"What's Been Bugging Me Lately!"

 

Moderator: Randolph May – President, The Free State Foundation

 

Panelists:

 

Enrique Armijo – Professor of Law, Elon University School of Law and Member of FSF's Board of Academic Advisors; Michelle Connolly – Professor of the Practice of Economics, Duke University and Member of FSF's Board of Academic Advisors; and Christopher Yoo – Professor of Law, University of Pennsylvania Carey Law School and Member of FSF's Board of Academic Advisors

"Hot (and Important) Topics in Communications Policy"

 

Moderators: Seth Cooper – FSF Director of Communications Policy Studies and Senior Fellow and Andrew Long – FSF Senior Fellow

 

Panelists:

 

Rick Chessen – Senior Vice President, Law & Regulatory Policy, NCTA; Chris Lewis – President and CEO, Public Knowledge; Clint Odom – Vice President of Strategic Alliances & External Affairs, T-Mobile; Michael O'Rielly – Former Commissioner, Federal Communications Commission

Keynote Conversation – "Views from the Top of the FCC"

 

Moderator: Randolph May – President, The Free State Foundation

Brendan Carr – Commissioner, Federal Communications Commission, and Nathan Simington – Commissioner, Federal Communications Commission

White Paper Examines the Prospects for Mid-Band Spectrum

On March 23, 5G Americas released a white paper titled "Mid-Band Spectrum Update." The white paper describes existing spectrum use as well future opportunities for spectrum use in the mid-band (1 GHz to 7 GHz) and "extended mid-band" (8.5-16 GHz) ranges. 

In previously published Perspectives from FSF Scholars papers and blog posts, Free State Foundation scholars have observed: (1) spectrum in the mid-band range is a necessary input for optimizing 5G networks and supplying surging demand for wireless data; and (2) there is a shortfall in mid-band spectrum availability. Right now, the federal government is the primary user or occupier of mid-band spectrum. Repurposing significant portions of that underutilized spectrum for private licensed commercial use is therefore a top-level priority. The 5G Americas white paper helpfully offers a description of the potential opportunities as well as challenges for repurposing different swaths of spectrum within the mid-band and extended mid-band ranges. 

The white paper observes that "[t]here are currently no bands in the spectrum pipeline in the U.S." Rightly, the white paper calls on the FCC and NTIA to create a new spectrum pipeline that prioritizes availability of lower range frequencies in the mid-band range of 3 to 8 GHz. The increasing urgency in identifying and repurposing spectrum for private commercial use also was a key topic of conversation at FSF's Fifteenth Annual Policy Conference, which was held on Tuesday, March 28th in Washington, D.C. In the weeks ahead, expect to hear more about what went down at #FSFConf15 and the need for a plentifully stocked spectrum pipeline to fuel 5G deployment in the U.S.   

Agenda Released! FSF's 15th Annual Policy Conference on March 28. Register Now!

THE AGENDA IS HERE! REGISTER HERE TO ATTEND! All-Star Speaker Lineup Discusses Broadband Deployment and Adoption Strategies; Net Neutrality or Net Neutering; Spectrum Policy and 5G; Privacy Regulation and Data Security; The FCC, NTIA, and FTC; Free Speech, Cancel Culture and Constitutional Culture...and more!  Keynote Speakers Include: Congressman Bob Latta Chairman, House Communications and Technology Subcommittee

FCC Commissioner Brendan Carr

Scott Blake Harris Senior Spectrum Advisor, NTIA FCC Commissioner Nathan Simington

FTC Commissioner Christine Wilson

WHAT: FSF's Fifteenth Annual Policy Conference   WHERE: National Press Club, Washington, DC   WHEN: Tuesday, March 28, 2023 – 9:00 AM - 2:15 PM   The Free State Foundation will hold its Fifteenth Annual Policy Conference on Tuesday, March 28, 2023, at the National Press Club in Washington, DC. This annual conference is widely acknowledged to be one of the nation's premier law and policy events.   As in previous years, a truly outstanding lineup of senior officials and prominent experts from the FCC, FTC, other government agencies, industry, academia, and think tanks will discuss and debate the most important "hot button" communications and Internet policy issues of the day. These include regulations and policies relating to broadband deployment and adoption, spectrum, privacy protections, as well as competition policy, Cancel Culture, and other issues. THE AGENDA IS HERE! Confirmed Speakers Include:   Enrique Armijo – Professor of Law, Elon University School of Law, and Member of the Board of Academic Advisors of the Free State Foundation Brendan Carr – Commissioner, Federal Communications Commission Rick Chessen – Senior Vice President, Law & Regulatory Policy, NCTA - The Internet & Television Association Michelle Connolly – Professor of the Practice, Duke University, and Member of the Board of Academic Advisors of the Free State Foundation Seth Cooper – Director of Policy Studies and Senior Fellow, The Free State Foundation Scott Blake Harris – Senior Spectrum Advisor, National Telecommunications and Information Administration Congressman Bob Latta – Chairman, Subcommittee on Communications and Technology of the House Energy and Commerce Committee Chris Lewis – President and CEO, Public Knowledge Andrew Long – Senior Fellow, The Free State Foundation Randolph May – President, The Free State Foundation Clint Odom – Vice President of Strategic Alliances & External Affairs, T-Mobile Michael O'Rielly – Former Commissioner, Federal Communications Commission Nathan Simington – Commissioner, Federal Communications Commission  Christine Wilson – Commissioner, Federal Trade Commission  Christopher Yoo – Professor of Law, University of Pennsylvania Carey Law School, and Member of the Board of Academic Advisors of the Free State Foundation    REGISTRATION IS COMPLIMENTARY, INCLUDING CONTINENTAL BREAKFAST AND LUNCH.   BUT YOU MUST REGISTER TO ATTEND. REGISTER NOW HERE!   #FSFConf15

Fifth Circuit Denies Nondelegation Challenges to USF Regime

Today, March 24, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit denied constitutional challenges to the administrative regime for the Universal Service Fund. In Consumers' Research v. FCC, the Fifth Circuit rejected the claim that Congress improperly delegated authority to the Commission to administer the USF under Section 254 of the Communications Act. According to the court, Section 254 supplied the Commission with intelligible principles when it tasked the agency with overseeing the USF, and that the statute sufficiently limited the agency's power to raise revenues. Additionally, the Fifth Circuit ruled that the FCC's redelegation of authority to the USAC to administer the USF does not run afoul of the private nondelegation doctrine. According to the court, the USAC is subordinate to the Commission and the agency is not bound by USAC decisions. Instead, the Commission but can review the USAC's decisions and grant relief from them as well as determine how USF contributions are calculated and review the calculations made by the USAC.

As noted in an April 2022 blog post, President Randolph May and the Free State Foundation joined an amicus brief that was filed with the Fifth Circuit in this case. 

 

Although in Fifth Circuit appears to have made short work of nondelegation challenges to the USF in Consumers' Research v. FCC, there are nondelegation-related challenges to the scheme for administering the USF still pending in the Sixth and Eleventh Circuit Courts of Appeal. 

Copyright Claims Board Issues First Decision

On February 28, the Copyright Claims Board issued its first decision in a small copyright case, Oppenheimer v. Prutton, finding in favor of a copyright owner and awarding him one thousand dollars in statutory damages. The copyright owner alleged that his photograph was posted on a small business's website, with the Copyright Management Information (CMI) removed.

The costs of filing and putting on a copyright infringement or related case in federal court typically run into six figures, making small claims entirely uneconomical to litigate. This first decision appears to have ably served the purpose for which the CCB was established, expanding access to justice for copyright owners by providing a lower-cost venue for deciding disputes.

Free State Foundation President Randolph May and I recommended that Congress establish a small claims tribunal for copyright infringement claims in our book, Modernizing Copyright Law for the Digital Age: Constitutional Foundation for Reform (Carolina Academic Press, 2020). Fortunately, in December 2022, Congress passed the Copyright Alternative in Small-Claims Enforcement Act (CASE Act). The CASE Act authorized the U.S. Copyright Office to set up the CCB. 

 

(h/t to Jonathan Bailey for his March 2 PlagiarismToday article and link to the CCB's decision.) 

Congressman Bob Latta to Deliver Opening Keynote on March 28! Register Now!

REGISTER NOW HERE! All-Star Speaker Lineup Discusses Broadband Deployment and Adoption Strategies; Net Neutrality or Net Neutering; Spectrum Policy and 5G; Privacy Regulation and Data Security; The FCC, NTIA, and FTC; Free Speech, Cancel Culture and Constitutional Culture...and more!  Keynote Speakers Include: Congressman Bob Latta Chairman, House Communications and Technology Subcommittee

FCC Commissioner Brendan Carr

Scott Blake Harris Senior Spectrum Advisor, NTIA FCC Commissioner Nathan Simington

FTC Commissioner Christine Wilson

WHAT: FSF's Fifteenth Annual Policy Conference   WHERE: National Press Club, Washington, DC   WHEN: Tuesday, March 28, 2023 – 9:00 AM - 2:30 PM   The Free State Foundation will hold its Fifteenth Annual Policy Conference on Tuesday, March 28, 2023, at the National Press Club in Washington, DC. This annual conference is widely acknowledged to be one of the nation's premier law and policy events.   As in previous years, a truly outstanding lineup of senior officials and prominent experts from the FCC, FTC, other government agencies, industry, academia, and think tanks will discuss and debate the most important "hot button" communications and Internet policy issues of the day. These include regulations and policies relating to broadband deployment and adoption, spectrum, privacy protections, as well as competition policy, Cancel Culture, and other issues. REGISTRATION IS COMPLIMENTARY, INCLUDING CONTINENTAL BREAKFAST AND LUNCH.   BUT YOU MUST REGISTER TO ATTEND. REGISTER NOW HERE!   #FSFConf15

FCC Proposes Framework for Supplemental Coverage from Space

On March 16, the FCC adopted a Notice of Proposed Rulemaking in a proceeding that the agency calls "Single Network Future: Supplemental Coverage from Space." The Commission's proposal would establish a new regulatory framework for Supplemental Coverage from Space (SCS) that would facilitate the integration of satellite and terrestrial networks. As the Notice explains, the Commission's proposal would enable satellite operators collaborating with terrestrial service providers to operate space stations on currently licensed, flexible-use spectrum allocated to terrestrial services, thereby expanding wireless coverage to the terrestrial licensee's subscribers. In other words, the Commission's framework would make it easier for terrestrial wireless service coverage to be supplemented by service coverage delivered from space stations. This includes providing wireless connectivity from space stations directly to everyday wireless devices used by consumers and business enterprises. SCS has the potential to significantly expand or at least improve wireless services in unserved and underserved areas that are geographically difficult to connect. 

In a March 6 blog post, titled "Big Announcements on Deployments of Direct-to-Device (D2D) Satellite Services," I wrote about Ligado Networks' partnership plans to offer D2D mobile connectivity to enterprises and consumers in areas were terrestrial cellular wireless coverage is lacking. The Commission's Notice in its Single Network Future proceeding appears intended to promote similar types of innovative collaborative efforts by satellite and wireless providers. 

 

The Single Network Future proceeding is one of the most interesting and promising proceedings for American consumers on the FCC's docket. The Commission did a good thing in adopting its Notice on facilitating SCS. 

Senators Reintroduce Bill to Require FCC Report on USF Contribution Reforms

On March 16, U.S. Senators Ben Ray Lujan, Roger Wicker, Todd Young, and Mark Kelly announced the reintroduction of the Funding Affordable Internet and Reliable (FAIR) Contributions Act. The bill, if passed by Congress, would require the FCC to conduct a feasibility study on collecting Universal Service Fund (USF) contributions from Internet edge providers. 

In a July 22, 2021 blog post, "Bill Would Require FCC to Consider Big Tech Contributions to Universal Service Fund," Free State Foundation Senior Fellow Andrew Long wrote about the FAIR Contributions Act upon its introduction in the 117th Congress. As Mr. Long explained, the FAIR Contributions Act would require the FCC to study and report to Congress on the classes of services that potentially could be assessed, along with the relative merits for different proposals for selecting those services and ways of calculating the required USF contributions. The study and report also would address what sort of statutory authority the Commission would need in order to adopt such contribution reforms as well as the impact of such reforms on universal service programs. Additionally, the report would address the continued necessity of USF once broadband service capability has been deployed to all Americans. 

USF contribution reform is sorely needed, as I reiterated in my March 15 blog post, "Consumers Still Burdened as FCC Sets USF Surcharge Rate at 29%." Indeed, as Free State Foundation President Randolph May, Mr. Long, and I wrote in public comments filed in the FCC's Report on the Future of the Universal Service Fund proceeding in February 2022: 

As it now stands, the existing universal service system is fiscally unsustainable, and it most likely will collapse unless it is fixed. The USF contribution base is shrinking while program expenditures exceed $8 billion per year. Voice consumers are subject to a 25%-to-30% surcharge rate that has climbed exponentially over the last two decades. When Congress enacted Section 254 in 1996, it primarily had in mind voice services, not broadband services. Going forward, the universal service system needs a substantial make-over to comport with today's broadband- centric Internet ecosystem. 

The FAIR Contributions Act is a step is step in the right direction. There is plenty of upside in authorizing a careful study of the issue and no downside in doing so. The Senate should timely advance the bill and the 118th Congress should pass it. 

FSF's Annual Can't Miss Policy Conference on March 28! Space Is Limited!

REGISTER NOW HERE! Broadband Deployment and Adoption; Net Neutrality and Internet Freedom; Spectrum Policy and 5G; Privacy Regulation and Data Security; The FCC, NTIA, and FTC; Cancel Culture and Constitutional Culture...and more!  Keynote Speakers Include:   FCC Commissioner Brendan Carr

Scott Blake Harris Senior Spectrum Advisor, NTIA FCC Commissioner Nathan Simington

FTC Commissioner Christine Wilson

WHAT: FSF's Fifteenth Annual Policy Conference   WHERE: National Press Club, Washington, DC   WHEN: Tuesday, March 28, 2023 – 9:00 AM - 2:30 PM   The Free State Foundation will hold its Fifteenth Annual Policy Conference on Tuesday, March 28, 2023, at the National Press Club in Washington, DC. This annual conference is widely acknowledged to be one of the nation's premier law and policy events.   As in previous years, a truly outstanding lineup of senior officials and prominent experts from the FCC, FTC, other government agencies, industry, academia, and think tanks will discuss and debate the most important "hot button" communications and Internet policy issues of the day. These include regulations and policies relating to broadband deployment and adoption, spectrum, privacy protections, as well as competition policy, Cancel Culture, and other issues. Confirmed speakers include:   Enrique Armijo – Professor of Law, Elon University School of Law Brendan Carr – Commissioner, Federal Communications Commission Rick Chessen – Senior Vice President, Law & Regulatory Policy, NCTA - The Internet & Television Association Michelle Connolly – Professor of the Practice, Duke University Kathleen Grillo – Senior Vice President of Policy and Government Affairs, Verizon Scott Blake Harris – Senior Spectrum Advisor, National Telecommunications and Information Administration Chris Lewis – President and CEO, Public Knowledge Michael O'Rielly – Former Commissioner, Federal Communications Commission Nathan Simington – Commissioner, Federal Communications Commission  Christine Wilson – Commissioner, Federal Trade Commission  Christopher Yoo – Professor of Law, University of Pennsylvania Carey Law School REGISTRATION IS COMPLIMENTARY, INCLUDING CONTINENTAL BREAKFAST AND LUNCH.   BUT YOU MUST REGISTER TO ATTEND. REGISTER NOW HERE!   #FSFConf15

Consumers Still Burdened as FCC Sets USF Surcharge Rate at 29%

On March 14, the FCC's Office of Managing Director announced that the Universal Service Fund (USF) contribution factor for the second quarter of 2023 will be 29%. Barring any unlikely by the FCC's Commissioners, the proposed rate will soon kick in. Although that amounts to a slight decrease compared to the first quarter contribution factor of 32.6%, the figure is still unreasonably high and burdensome on voice consumers.  

The USF contribution factor is used to determine the line-item surcharge that is added to the monthly bills of voice consumers. The surcharges are functionally taxes imposed on voice consumers to pay for USF programs. As explained in my August 23, 2022 Perspectives from FSF Scholars, "Congress Should Consider Expanding Universal Service Contributions: FCC Poses a Potential Answer to USF's Financial Problems." In addition to pursuing contribution reforms, Free State Foundation President Randolph May recommended in his August 26, 2022 Perspectives from FSF Scholars,"The FCC's USF Report: Unprecedented Broadband Funding Requires Fundamental Universal Service Reforms," that Congress should re-evaluate the size of USF programs in light of the several billions that has recently been allocated to support broadband deployment and service on top of existing outlays for USF. Those additional subsidies include the $42.45 billion Broadband Equity, Access, and Deployment (BEAD) Program. And as FSF Senior Fellow Andrew Long explained in his August 30, 2022 blog post, "A True Assessment of the USF's Future Relevance Demands a Full Accounting of Broadband Subsidies."

Importantly, there also are serious questions regarding the constitutionality of how the USF quarterly contribution factor is determined. As explained in blog posts from April 2022 and October 2022, FSF President Randolph May and the Free State Foundation have joined amicus briefs in ongoing cases before federal circuit courts of appeal that raise challenges to the FCC's USF contribution regime based on the non-delegation doctrine and the major questions doctrine.