Federal Privacy Bill Hits Roadblock, State Activity Picks Up Speed

At the eleventh hour, the House Energy and Commerce Committee cancelled a markup scheduled for Thursday that included the American Privacy Rights Act of 2024 (APRA). At the state level, by contrast, Minnesota and Rhode Island recently enacted their own comprehensive data privacy laws, bringing the total to 20. And previously adopted statutes in three states – Oregon, Texas, and Florida – go into effect on July 1.

Having cleared the Innovation, Data, and Commerce Subcommittee late last month, the APRA was one of eleven bills on the agenda for yesterday's full committee markup. Chair Cathy McMorris Rodgers (R-WA) did not state a reason for the last-minute cancellation, but The Hill reported that House Republican leadership objected to the private right of action created by the discussion draft.

As it happens, in "Congressional Leaders Return Privacy to the Front Burner," an April Perspectives from FSF Scholars, I anticipated that "the APRA's problematic inclusion of a private right of action may – and should – prove once again to be a sticking point."

The already sizeable patchwork of state comprehensive data privacy laws, meanwhile, continues to grow. (So, too, do the associated compliance headaches for companies and confusion faced by consumers.) On May 24, 2024, North Star State Governor Tim Walz signed the Minnesota Consumer Data Privacy Act, a law similar – though not identical, of course – to those passed in New Hampshire and Maryland.

And on June 25, 2024, Ocean State Governor Dan McKee transmitted with no signature the Rhode Island Data Transparency and Privacy Protection Act, bringing the total of state comprehensive data privacy laws to 20. The Rhode Island statute is notable for its relatively large fines: up to $10,000 per violation, plus additional penalties for "intentional disclosures of personal data."

The Minnesota act will not go into effect until July 31, 2025, the Rhode Island law not until January 1, 2026. Laws in three other states, however, kick in on the first day of July: the Oregon Consumer Privacy Act, the Texas Data Privacy and Security Act, and – by my measure, at least – the Florida Digital Bill of Rights.

For additional details on these statutes, please see "More States Compound the Dreaded Privacy 'Patchwork' Problem," a July 2023 Free State Foundation Perspectives.

PRESS RELEASE: By Overruling Chevron and Restraining Agency Discretion, Supreme Court Respects Separation of Powers

Regarding the Supreme Court’s decision today in LOPER BRIGHT ENTERPRISES v. RAIMONDO, Free State Foundation President Randolph May issued the following statement:

“The Supreme Court’s decision in Loper formally burying the Chevron doctrine is overdue but still important, even though the Court itself has not cited Chevron since 2016. In ignoring the Administrative Procedure Act’s injunction that courts reviewing agency decisions should decide 'all relevant questions of law,' Chevron allowed agencies to expand their power beyond Congress’s intent by deferring to bureaucrats’ interpretation of supposedly ambiguous statutes. And by requiring deference to agencies’ statutory interpretations, the Chevron doctrine was inconsistent with the separation of powers fundamental to our constitutional scheme. As Chief Justice Marshall declared in Marbury v. Madison, it is 'emphatically the province and duty of the judicial department to say what the law is.'

It is important to understand, as the Court emphasized, that Chevron’s demise does not mean that courts will no longer accord deference to agency interpretation of statutes based on factors like their consistency with prior decisions, the pertinence the agency’s particular expertise, and the persuasiveness of the agency’s reasoning. But the courts won’t accord the agency interpretations the controlling weight that Chevron required.

The practical effect of the Supreme Court’s decision in Loper should be to rein in overly aggressive statutory interpretations by agencies, including for example the FCC, FTC, and SEC, that unjustifiably expand bureaucrats’ power in the administrative state. With Chevron buried, and the Major Questions Doctrine now embedded in its jurisprudence, the Court has taken important steps to restore the proper relations among Congress, the executive branch and so-called independent agencies, and the courts closer to the Founders’ constitutional separation of powers vision.”

PS — For an extensive legal discussion predicting Chevron’s demise and explaining the Major Questions Doctrine, see Randolph May and Andrew Magloughlin, NFIB v. OSHA: A Unified Separation of Powers Doctrine and Chevron's No Show (February 10, 2023). South Carolina Law Review, Vol. 74, No. 2, 2023, Available at SSRN: https://ssrn.com/abstract=4354143  and here: https://freestatefoundation.org/wp-content/uploads/2023/02/2.-May-Magloughlin-NFIB-v.-OSHA-FINAL.pdf

TMT with Mike O'Rielly - Ep 6: Biden FTC's Processes, Policies, and Impacts

In Episode 6 of “TMT with Mike O'Rielly,” released on June 27, former FCC Commissioner and Free State Foundation Adjunct Senior Fellow Michael O'Rielly discusses the Biden FTC’s processes and policies and their impact on American companies and consumers with David Grossman, the Consumer Technology Association's Vice President of Policy & Regulatory Affairs. As the FTC aggressively seeks to expand its power, this is another don't-miss episode.

Media Advisory: Supreme Court Wrongly Lets Stand the Government's Coercion of Social Media

Regarding the Supreme Court’s decision today in Murthy v. Missouri, Free State Foundation President Randolph May issued the following statement:

The majority opinion seems strained in holding that the states and individuals complaining about social media censorship lacked standing. And Justice Alito's dissenting opinion is convincing regarding the merits of the First Amendment claim. By virtue of its very detailed — and chilling — description of the government’s ongoing interactions with Facebook and other leading social media companies, Justice Alito shows that the Biden Administration crossed the line from offering its suggestions regarding the removal of speech it disfavored to threatening retribution if the disfavored speech was not removed. Private entities are free to carry or not carry whatever speech they choose, but when government actions rise to the level of entangled coercion of private entities that they did in this case, then the government violates the First Amendment by suppressing the free speech rights of those censored.

The California COLR Rebuttable Presumption Should Be Flipped

 In “CPUC Denies COLR Relief to AT&T but Will Weigh Updating Rules,” published on June 21, Communications Daily’s Adam Bender has a good account of the California Public Utilities Commission’s denial of AT&T’s request, as an incumbent carrier, to be relieved of what’s called “Carrier of Last Resort” (COLR) obligations. As the designation implies, AT&T and other COLRs, cannot simply stop providing service without prior government permission. By the way, as you might anticipate, the COLR designation comes with strict regulation of rates and other terms of service.

In an era before consumers in almost all areas of the country, including California, had more than a single option from which to choose for the provision of basic voice telephone service, it may have made sense for the government to have the power to require that a service provider be designated as the Carrier of Last Resort. Needless to say, nowadays, consumers in most all areas have several options for acquiring voice telephone service from various providers that employ different technologies – copper wires, coaxial cable, fiber, cellular, satellite, and hybrid networks combining these facilities.

Without belaboring the point here in this short post, the carrier that happens to be saddled with COLR obligations, some of which are costly and involve offering free or reduced-price services and maintaining in place legacy equipment, likely is put at a competitive disadvantage vis-à-vis other competitors. But here I don’t want to argue the particulars of AT&T’s case, which it can do itself.

I only want to comment on one aspect of the CPUC’s action that was highlighted in the Communications Daily report. In initiating a new proceeding to consider whether the Commission should revise its COLR rules, the agency declares it “adopts a rebuttable presumption that the COLR construct remains necessary, at least for certain individuals or communities in California.”

Given the undeniable change in the competitive landscape, driven by ongoing technological advancements, since the “Carrier of Last Resort” concept was developed, the CPUC has the presumption backwards. In other words, there should be a rebuttable presumption that the COLR construct remains unnecessary.

As far back as 2011, I was suggesting in papers that, in light of the rapidly changing competitive landscape even then, the FCC should employ rebuttable presumptions in favor of regulatory relief in its mandated periodic regulatory reviews and consideration of forbearance petitions.

It’s 2024. In its consideration of whether to retain COLR, the California Public Utilities Commission should flip its proposal and its regulatory mindset. Retaining outdated legacy regulations that impose unnecessary costs harm overall consumer welfare. There should be a rebuttable presumption that the COLR construct remains unnecessary.

 

TMT with Mike O'Rielly - Ep 5: Madison Project & Pending SCOTUS First Amendment Cases

Episode 5 of TMT with Mike O'Rielly was released on June 19. The episode is entitled "The Madison Project & Pending SCOTUS First Amendment Cases," and it features a discussion with veteran constitutional litigator Floyd Abrams. Tune in to hear former FCC Commissioner and Free State Foundation Adjunct Senior Fellow Mike O'Rielly and Mr. Abrams talk about the mission of the Madison Project as well as recent and pending free speech decisions by the Supreme Court. 

D.C. Circuit Affirms APA Reviewability of Copyright Exemptions Rules

On June 7, the U.S. Court of Appeals for the District of Columbia issued its decision in Medical Imaging & Technology Alliance v. Library of Congress. The case presents the question of whether copyright rules adopted under the Digital Millennium Copyright Act (DMCA) are reviewable under the Administrative Procedure Act (APA). In a 2-1 decision that brought to the fore the unusual structure and operation of the U.S. Copyright Office, the court answered "Yes."

The court's opinion was authored by Judge Neomi Rao. At issue in the case was a legal challenge to an exemption from the DMCA's anti-circumvention provisions that were granted by the Librarian of Congress following a triennial DMCA rulemaking. The exemption allowed for independent service operators to bypass technological protective measures (TPMs) on medical devices for purposes of diagnosis, modification, or repair of those devices. The Library of Congress disputed that its rulemaking was subject to APA review.

According to the D.C. Circuit:

In the Copyright Act [of 1976], Congress provided that copyright regulations are reviewable under the APA. The Act expanded the Register's rulemaking authority and provided that, with one exception not relevant here, "all actions taken by the Register of Copyrights under [Title 17] are subject to the provisions of the Administrative Procedure Act." 17 U.S.C. § 701(e). We have previously reviewed actions of the Register based on this provision. See, e.g., Atari Games Corp. v. Oman, 888 F.2d 878, 879 & n.1 (D.C. Cir. 1989); Universal City Studios LLLP v. Peters, 402 F.3d 1238, 1242 (D.C. Cir. 2005). Although section 701(e) refers to actions of the Register, the Register is subordinate to the Librarian and 'shall act under the Librarian's ... direction and supervision." 17 U.S.C. § 701(a). More specifically, "[a]ll regulations established by the Register under [Title 17] are subject to the approval of the Librarian of Congress." Id. § 702…

Congress conferred authority for the triennial rules at issue here in the DMCA, which added the following provision to Title 17: "[T]he Librarian of Congress, upon the recommendation of the Register of Copyrights, ... shall make the determination in a rulemaking proceeding" whether to waive the anti-circumvention provision for certain classes of copyrighted works. Id. § 1201(a)(1)(C). In other words, the DMCA authorized a new type of copyright regulation that would be formulated by the Register and approved by the Librarian. 

 

Reading the two statutes as a comprehensive statutory scheme, DMCA rules are also subject to the APA under 17 U.S.C. § 701(e). The Copyright Act plainly applies the APA to "all actions" of the Register under Title 17, including rulemaking subject to the approval of the Librarian. See id. §§ 701(e), 702…

The court concluded that because Congress applied the APA's waiver of sovereign immunity to actions of the register and Librarian in adopting copyright regulations it is immaterial as to whether the Library is an "agency" under the APA. As the court recognizes, the Copyright Office is peculiarly subordinated to the Librarian of Congress and deemed an "agency" of Congress. The court acknowledged that the Librarian's decisions about the Library's internal workings are not reviewable under the APA, and the court's ruling in the case was limited to the issue of copyright regulation. But the essentially executive character of the copyright regulation adopted by the Librarian on the recommendation of the Register of Copyrights was noted in a commendable section on judicial review of administrative agency action for conformity with the law: 

Reading section 701(e) to provide for judicial review of triennial DMCA rules aligns with fundamental principles regarding the protection of individual rights against unlawful government action. To begin with, the Copyright Act and the DMCA give the Register and Librarian significant authority to "promulgate copyright regulations" and "apply the statute to affected parties.” See Intercollegiate [Broadcast System, Inc. v. Copyright Royalty Board, 684 F.3d 1332,1342 (D.C. Cir. 2012)]. As we have recognized, and no party disputes, these powers are "generally associated in modern times with executive agencies.” Id. When enacting regulations and enforcing the law, "the Library is undoubtedly a component of the Executive Branch." Id. (cleaned up). Moreover, the triennial rules directly affect valuable property rights, such as a copyright holder’s ability to limit access to a digital creation and to prevent intellectual property theft. The triennial rules also provide exemptions from civil and criminal liability that would otherwise attach to individuals who circumvent technological protective measures. 17 U.S.C. §§ 1201(a)(1)(B), 1203–04. The exemptions are not left solely to the Librarian's discretion, but instead must be determined according to specific statutory criteria. Id. § 1201(a)(1)(C). There is no indication in the DMCA that Congress, having allocated this substantial regulatory power to the Librarian and Register and identified the legal criteria they must apply, would leave such power unchecked by judicial review. 

In sum, the court held that DMCA triennial rulemakings are subject to APA review. Judge Rao deserves credit for writing a well-reasoned and perceptive judicial opinion. 

Free State Foundation President Randolph May and I explored the structural history of the U.S. Copyright Office and its relationship with the Library of Congress in our book Modernizing Copyright Law for the Digital Age: Constitutional Foundations for Reform (Carolina Academic Press, 2020).

Cable Industry Lobbies FCC to Allow "Reasonable" Billing Practices

During a recent conversation with Commission staff, representatives from NCTA – The Internet & Television Association, Charter, and Comcast (collectively, the cable advocates) asked the agency to reconsider its rash proposals to prohibit traditional Multichannel Video Programming Distributors (MVPDs) – cable operators and Direct Broadcast Satellite (DBS) providers – from employing common billing practices that their larger and still-growing Internet-based competitors also use. At a minimum, they urged that "reasonable" Early Termination Fees (ETFs) be allowed.

As the Free State Foundation's recent comments in the State of the Communications Marketplace proceeding plainly point out, ascendant streaming services – Netflix, Hulu, YouTube, Amazon Prime, and the like – increasingly overshadow cable operators and DBS providers, which have been suffering significant subscriber losses for years.

However, the Commission's ability to regulate is limited by statute to traditional MVPDs, and – willfully ignoring clear competitive trends as well as its own complicit part in accelerating those trends – it has chosen to exercise that authority on numerous recent occasions.

For example, the FCC proposed late last year to ban traditional MVPDs – and traditional MVPDs alone – from (1) utilizing ETFs as a means of enforcing long-term, consumer-benefiting contracts, and (2) marketing their services in standard monthly increments.

As described in their ex parte letter, the cable advocates urged senior staff from Chairwoman Rosenworcel's office and the Media Bureau to reject outright the proposal to require that traditional MVPDs provide service in daily increments, a clear form of impermissible rate regulation. On the topic of ETFs, they similarly championed regulatory restraint – but suggested that, if the Commission is to intervene, it should limit its focus to "unjust or unreasonable" ETFs.

Of course, asking an administrative agency to determine what is and is not "reasonable" creates a separate set of subjective concerns. Accordingly, the cable advocates proposed a series of factual considerations upon which the FCC might base its decisions, including whether consumers:

• Have a choice between options with and without ETFs,
• Are informed clearly about the existence of ETFs before they sign up for service,
• Are afforded an initial window during which they may cancel service without having to pay an ETF,
• Are not subject to ETFs that are "excessive relative to the value received," and
• Face ETFs that decrease over the term of the contract.

In comments and reply comments, FSF President Randolph May and I strongly opposed any agency action in this proceeding. Specifically, we argued that ETFs and monthly billing increments are pro-consumer common practices that lead to lower costs and greater choice; that the Commission's misguided proposals clearly constitute impermissible rate regulation; and that new burdens exclusively targeting cable and DBS providers inappropriately would pick winners – unregulated streaming behemoths – and losers – struggling traditional MVPDs uniquely subject to FCC oversight.

State-Level Rate Regulation of Broadband Faces Reckoning with Title II Preemption

On June 17, the U.S. Court of Appeals for the Second Circuit issued its mandate reversing and vacating the District Court decision that enjoined enforcement of New York's Affordable Broadband Act, a state law regulating the rates of broadband Internet access services. The New York law at issue requires broadband providers offering Internet access services in the state to make available plans that are subject to rate ceilings. Apparently, as many as one-third of New York households would qualify for such rate regulated plans. The law was challenged under the FCC's 2017 Restoring Internet Freedom Order.

In a May 10 Perspectives from FSF Scholars titled "Second Circuit Preemption Decision Won’t Save New York Broadband Rate Regulation Scheme," Law Professor Daniel Lyons – a member of the Free State Foundation’s Board of Academic Advisors – analyzed Second Circuit’s decision in NYSTA v. James. Prof. Lyons critiqued the court's narrow understanding of conflict preemption, while recognizing the court's acknowledgment that the decision would be short-lived because of a change in law. Just a day before the Second Circuit’s decision, the FCC's 2024 Safeguarding and Securing Order reclassified broadband Internet access service from a Title I "information service" to a Title II "telecommunications service." Prof. Lyons explained that the Commission's decision to forbear from ex ante and ex postrate regulation in its new Title II order preempts similar rate regulation at the state level. 

By a June 14 letter to the Second Circuit the broadband providers challenging the New York Affordable Broadband Act declined to seek a rehearing en banc. They similarly declined to file a motion to reconsider the court's decision based on the change in law from Title I to Title II. In his Perspectives, Prof. Lyons wrote that if a motion to reconsider proves unavailing that broadband providers "should seek relief from the Commission and hold it to its promise that it 'will not hesitate to exercise…authority' to preempt state laws that 'interfere or are incompatible with the federal regulatory framework' established under the order."

Will there soon be a petition filed at the FCC seeking a declaratory order preempting state-level rate regulation of broadband Internet access services under Title II? Whether it's the Commission or a future court decision, one should expect that the state-level rate regulation of broadband services will face a reckoning under the new Title II order. Stay tuned. 

For further background on the case and the likely bad effects of the FCC's new Title II order, see the summary of the Second Circuit's decision in NYTSA v. James in my May 3 Perspectives from FSF Scholars, "Second Circuit Rejects Preemption Challenge to New York's Broadband Rate Regulation" as well as my May 24 Perspectives, "The FCC's New Title II Order Allows Harmful Rate Regulation." 

TMT with Mike O'Rielly - Ep 4: The Biden USTR & Impact on American Companies

Episode 4 of the "TMT With Mike O'Rielly" videocast was released on June 12. The TMT vidcast, available online, features former FCC Commissioner and Free State Foundation Adjunct Senior Fellow Michael O'Rielly. The episode is titled "The Biden USTR & Impact on American Companies." It showcaes a conversation with Ed Brzytwa, Vice President, International Trade with the Consumer Technology Association (CTA), on the technology sector, the Office of the U.S. Trade Representative, trade policy, foreign trade agreements, cross-border data flows, tariffs, and policy change. 

The Telephone Tax Rises Again - Now 34%

On June 12, the FCC announced that the tax paid by consumers on all interstate and international traditional voice telephone calls to support the Commission’s Universal Service Fund (USF) will increase to 34.4% from 32.8%.

 

I understand that the FCC insists on calling this tax a “contribution factor.” That’s fine if you prefer euphemisms to more precise usage of the English language. It’s like saying that compelling Internet service providers to adopt, within certain tightly prescribed limits, an “affordable low cost” service option is not “rate regulation.”

 

Call it what you will – tax or contribution factor – it’s going up again. At 34.4%, it’s now a third of the price of the telephone call itself. To put this figure in perspective, in 2000 the tax was 5.6%; in 2005, 10.2%; in 2010, 12.9%; in 2015, 16.7%; and in 2020, 27.1%.

 

You can detect a troubling pattern here, right?

 

As the number of contributors who make traditional voice telephone calls shrinks and the size of the subsidies which comprise the USF increase, or even remains stable, the tax necessary to support the subsidies continues its inexorable rise. This is not a sustainable paradigm.

 

I’ve been arguing for reform of the universal service system put in place by the FCC after the Telecommunications Act of 1996 for two decades. At least now, even if belatedly, there is more widespread agreement that the current regime is broken and needs to be meaningfully reformed to reflect the realities of today’s digital communications marketplace.

 

A bipartisan group of Senate and House lawmakers has been working for many months now to come up with a proposal to replace the current regime with a new one. They need to think boldly.

 

Along with Seth Cooper, I submitted extensive comments on August 25, 2023, to the bipartisan congressional Universal Service Fund Working Group explaining the need for fundamental reform and detailing what those reforms should be. Likewise, we’ve submitted extensive comments and reply comments in connection with the FCC’s own latest proceeding to examine the future of universal service.

 

While those extensive comments should be consulted for complete recommendations, here I will just highlight a few key points:

 

·      A reformed universal service system must be based upon principles of transparency, fiscal discipline, and political accountability.

 

·      Ideally, universal service requirements, when properly sized to reflect needed fiscal discipline, should be funded through periodic multi-year direct congressional appropriations.

 

·      If not funded through multi-year congressional appropriations, Congress should consider the feasibility of imposing some form of contribution requirement from major Internet platform providers that benefit so greatly from the advanced broadband networks to which they presently are not required to support.

 

·      Subsidies to support access for low-income persons should be continued through a voucher system akin to the Affordable Connectivity Program but with considerably stricter eligibility criteria and heightened safeguards to prevent waste, fraud, and abuse.

 

This latest increase in the tax imposed on traditional voice telephone calls should be a further impetus – as if a further impetus should be needed! – to get on with the important task of meaningfully reforming the existing universal service regime.   

CTIA Once Again Asks FCC to Declare that Light Poles Are "Poles"

In a letter dated June 7, 2024, CTIA urges the Commission to at long last clarify that the term "pole" in Section 224 of the Communications Act encompasses both utility poles and light poles. Doing so, it argues, will "bring uniformity to the pole attachment and broadband deployment processes leading to more and faster broadband being available to more people."

In a 2019 Petition for Declaratory Ruling, CTIA asked the FCC, among other things, to "declare that the term 'pole' in Section 224 includes light poles and that utilities must afford nondiscriminatory access to light poles on rates, terms and conditions consistent with Section 244 and the Commission's implementing pole attachment rules."

And while the Wireline Competition Bureau did issue a Declaratory Ruling in July 2020 addressing other aspects of CTIA's petition, it sidestepped this particular topic, writing in a footnote that "[w]e do not address CTIA's request concerning light poles in this Declaratory Ruling, and this issue remains pending."

In light of rapidly growing demand for 5G, including fixed wireless access home broadband, CTIA once again is seeking clarification from the FCC that the reference in Section 224(f)(1) to "any pole, duct, conduit, or right-of-way owned or controlled by" a utility includes light poles.

Light poles and other "street furniture," it turns out, are "well-suited" for the attachment of small cells, which are predicted to make up more than 80 percent of infrastructure deployments going forward. This is especially true in areas where power lines are buried underground and, consequently, utility poles are not available.

Given the current uncertainty, however, CTIA reports that "wireless providers that have sought access to light poles have faced opposition from electric utilities, including flat denials of access, as well as attachment charges that exceed lawful rates." A ruling by the Commission that "any pole" includes a light pole, it maintains, "will serve the public interest by preventing disputes with electric utilities over this issue, thereby removing barriers to wireless deployment."

Media Advisory: FSF Comments Demonstrate the Competitiveness of the Communications Marketplace

Media Advisory

June 7, 2024

Contact: Randolph May at 301-984-8253

Free State Foundation President Randolph J. May and Seth L. Cooper, Director of Policy Studies and Senior Fellow, submitted comments yesterday in the Federal Communications Commission's proceeding requesting comments on the state of competition in the communications marketplace. The extensive data-rich comments demonstrate that the broadband and video services markets are effectively competitive. 

The complete set of the Free State foundation comments, with footnotes, is here.

Immediately below are the opening paragraphs of the "Introduction and Summary" to the comments, without the footnotes.

Introduction and Summary

These comments are offered in response to the Commission’s Notice requesting comments for the agency’s upcoming report on the state of competition in the communications marketplace. The primary focus of these comments is on the broadband Internet and video services markets. As these extensive comments demonstrate with an extraordinary amount of data from 2022 and 2023, the conclusion that the broadband and video services markets are effectively competitive is compelling. Indeed, in the face of the compilation of data included in these comments, it almost would require an act of malfeasance for the Commission to conclude anything other than that the broadband and video services markets are effectively competitive.

 

Of course, the preparation of the Commission’s Competition Report is not intended to be a theoretical or academic exercise. It’s intended to guide the agency’s actions so that they comport with current marketplace realities, not bygone market realities. In other words, the Competition Report findings, if they are true to what the data herein convincingly demonstrate, dictate that the agency implement market-oriented regulatory reform and actions.

 

Specifically, the Commission should make more mid-band spectrum available for commercial wireless services and refrain from rate regulation of broadband that harms financial returns and incentives for new network investment and prevent states from doing the same. Also, the Commission should decline to move forward with the agency’s proposed restrictions on video service pricing options that undermine market freedom and low-cost opportunities for consumers. Instead, the agency, even if now belatedly, should reduce its legacy regulation of multi-channel video programming distributors (MVPDs) that put those services at a competitive disadvantage relative to dominant online streaming video services.