T-Mobile/UScellular Transaction Ripe for Agency Action

According to the FCC's website (see graphic below), the agency's review of the $4.4 billion T-Mobile/UScellular transaction has entered its final month. The record evidence overwhelmingly indicates that consumers, including but not limited to current UScellular customers, would be better off if this deal were approved. Therefore, action prior to the end of the 180-day shot clock is warranted.

In an Opposition to Petitions to Deny filed on January 8, 2025, FSF President Randolph May and Director of Policy Studies and Senior Fellow Seth Cooper expressed their view that the proposed transaction likely would produce pro-competitive benefits, benefits that would outweigh any potential harms. They also noted that arguments against the transaction generally lack supporting evidence and/or a specific nexus to the instant transaction.

T-Mobile and UScellular, GN Docket No. 24-286

Source: fcc.gov

As Mr. Cooper described in a post to the FSF Blog shortly after the parties filed their Public Interest Statement on September 13, 2025, that regulatory filing "presents a prima facie case that [the] proposed transaction … will bring public interest benefits that outweigh any potential competitive concerns."

Tangible benefits identified and documented include faster 5G mobile broadband speeds, higher data capacity, and greater availability of fixed wireless access (FWA) home broadband service, especially in rural areas.

Potential harms, meanwhile, are unlikely given the robust competition that exists in the mobile broadband marketplace, a landscape documented by the Free State Foundation in June 2024 comments to the FCC for its 2024 Communications Marketplace Competition Report. Consumers can choose between three nationwide providers, EchoStar's upstart network that is available to over 70 percent of the U.S. population, mobile virtual network operators (MVNOs) such as Spectrum Mobile and Xfinity Mobile, and regional providers.

Potential harms also would be mitigated by the specific nature of this transaction – in particular, the relative disparity in their respective subscriber bases (126 million versus 4.5 million), the limited extent to which the parties directly compete (as Mr. Cooper pointed out in a February 2025 blog post, the parties "apparently do not have an overlapping competitive presence in thirty-seven percent (37%) of the Cellular Marketing Areas (CMAs) implicated by the proposed deal"), and the fact that T-Mobile sets "its pricing and service terms on a nationwide basis."

In addition, approval of this transaction would enable the efficient and timely reallocation of spectrum to its highest and best use while we wait for Congress to renew the Commission's auction authority – a priority Senate Commerce Committee Chairman Ted Cruz (R-TX) discussed in his Keynote Address at the Free State Foundation's recent Seventeenth Annual Policy Conference (video available here).

Report Forecasts Impending Spectrum Crisis, Calls for More Licensed Mid-Band Capacity

On March 27, CTIA released a report by Accenture titled "Securing the Future of U.S. Wireless Networks: The Looming Spectrum Crisis." It predicts a near-term shortfall in available spectrum to meet growing demand, which could adversely impact wireless users during peak times as soon as next year. To avert that crisis, the report calls on Congress, the NTIA, and the FCC to make more mid-band spectrum between 3.3-8.5 GHz available for full-power licensed commercial use.  

The Accenture report estimates that U.S. consumers' mobile wireless data of over 100 Gigabits in 2023 was almost double data traffic volumes for 2021, and it cites a wireless industry estimate data traffic per smartphone will increase more than 250% by 2029. The FCC has not auctioned new commercial spectrum licenses since 2022. Without new spectrum inputs to support 5G services, including fixed wireless access (FWA) and emerging artificial intelligence (AI) applications, the report concludes that "[t]he U.S. will reach an available spectrum deficit of 401 MHz by 2027 and 1423 MHz by 2032." 

 

According to the Accenture report, the looming spectrum deficit means that "network capacity will meet only 77% of data demand during peak hours by 2027, and this will worsen to networks meeting only 27% of peak demand by 2035." The report finds a future deficit will cause as much as $1.4 trillion in lost U.S. gross domestic product (GDP) by 2035 – unless more spectrum is put into full-power licensed commercial use for 5G. 

 

There is a widely-recognized need that more spectrum needs to be repurposed from government use or occupancy to commercial use. However, intense disagreements exist over how much spectrum should be reallocated on a licensed basis versus an unlicensed basis. There are also diverging views over whether particular bands should be licensed on an exclusive basis to commercial licensees or on a shared basis with government users. Accenture's report provides an important contribution to the ongoing spectrum policy debate. The report's analysis and conclusions deserve thoughtful consideration.

 

Spectrum policy was also a topic of discussion and debate at the Free State Foundation's Seventeenth Annual Policy Conference – #FSFConf17 – held on March 25, in Washington DC. Be sure to check out videos featuring Senator Ted Cruz's keynote address, touching on his proposed legislation to replenish the spectrum pipeline, as well as the panel on "New Directions in Communications Policy." 

Video of #FSFConf17 Available Now!

The Free State Foundation's 17th Annual Policy Conference – #FSFConf17 – was held on March 25 in Washington, DC. The entire event was livestreamed and it is available online for viewing. To hear keynote addresses by Professor Jonathan Turley, Senator Ted Cruz, Congressman Richard Hudson, as well as insights from communications policy experts on topics such as spectrum repurposing and auctions, broadband subsidy programs like BEAD, state-level broadband regulation, and universal service, be sure to check out the video.

A Tell-Tale Sign Regarding the FCC's Status in the Consumers' Research Argument

During today's oral argument in the Supreme Court the Consumers' Research case regarding the constitutionality of the FCC's Universal Service regime, there was a brief tell-tale exchange that likely telegraphs the answer to the question whether a president can constitutionally remove an FCC commissioner without cause – in other words, at will.

 

Justice Brett Kavanaugh ask the government's counsel defending the Universal Service program whether it makes any difference to the government's defense against the constitutional nondelegation challenge whether the FCC is considered an independent agency or part of the executive branch subject to the president's control. The government's counsel conceded, in effect, that the FCC is not independent because there is no "for cause" restriction on the president's removal power in the Communications Act.

Yesterday, at the Free State Foundation's Seventeenth Annual Policy Conference, FCC Chairman Brendan Carr made the same point in our Fireside Chat ( at 2:45) when I asked him how he thought about the question whether the FCC is an independent agency insulated from presidential control. He pointed to the lack of a restriction on removal in the Communications Act.

 

In connection with then-developing discussion regarding a president's power to remove FCC commissioners, I pointed out several weeks ago, here and here, that the Communications Act lacks statutory restrictions on removal that are contained in the laws governing the FTC, NLRB, and other agencies. This distinction, until recently, has been overlooked by most everyone, and for decades, many have referred to the FCC as an "independent" agency.

 

To the extent that a president ever attempts to remove an FCC without cause, and such removal is challenged as unconstitutional – even assuming Humphrey's Executor were to remain good law – it's likely that the Communications Act's lack of a statutory removal restriction will prove determinative.  

FCC Copper Retirement Orders Will Boost Next-Gen Network Deployment

 On March 20, the FCC announced a slate of orders that reduced regulatory burdens for voice service providers seeking to retire old legacy copper networks. Chairman Brendan Carr and agency staff deserve credit for taking proactive steps to eliminate and reduce regulations that delay and run up the costs of making technology transitions to more advanced networks. 

The FCC released four orders. The first order clarified the Commission's Adequate Replacement Test criteria for streamlining discontinuances of telecommunications services under Section 214(a), initially adopted in the 2016Technology Transitions Order. The agency found that the rules had been misunderstood in an overly expansive way as requiring pre-discontinuance network performance testing of replacement networks only according to a specific set of requirements. As a result, "there has been a significant delay in carriers availing themselves of the technology transitions streamlined discontinuance process for their own replacement services, to the detriment of consumers who have been slower to receive next-generation services than the Commission expected." Accordingly, the order states: "We thus clarify that a carrier seeking Commission authorization to discontinue a legacy voice service pursuant to the Adequate Replacement Test's totality of the circumstances with respect to its own replacement service need only show, based on the results of the carrier's routine internal testing or other types of network testing, that 'the network still provides substantially similar performance and availability' as the service being discontinued."

 

The agency's second order "waives the filing requirements in the Commission’s network change disclosure rules adopted under section 251(c)(5) of the Communications Act of 1934." In the order, the agency found that "good cause exists to waive any requirement to notify the Commission of network changes" by incumbent local exchange carriers (LECs) such as changes resulting from the retirement of copper networks and transitions to next-generation networks. "As a result, an incumbent [local exchange carrier] LEC now is only required to post public notice of its planned network changes through industry fora, industry publications, or on the carrier’s publicly accessible Internet site, and to provide direct notice to interconnected telephone exchange service providers for copper retirements and short-term network changes." And it found that the waiver’s benefits outweighed any costs given extraordinary developments in the market over the last 30 years – including the dramatic rise of VoIP services to over 75% of fixed retail voice subscriptions at the end of 2023, while switched access lines continue to dramatically decline. 

 

Its third order waives Section 214(a) notice and application requirements for providers seeking to grandfather legacy services – that is, to stop offering those services to new customers. 

 

Additionally, the agency's fourth order waives the "stand alone service" requirement in the Commission’s rules for service discontinuance established in the agency’s 2018 Wireline Infrastructure Order. By granting the waiver, the order provides relief that was requested in a February 2025 petition by USTelecom. According to the order, USTelecom has asserted that adults in landline-only households had fallen to 1.3% of all households, and that bundled voice and broadband options, are available at prices that compare favorably to legacy voice pricing. 

 

In each of the copper retirement orders, the Commission found that relief from the regulatory requirements would free up the investment of resources in the development and deployment of more advanced communications services. 

 

The release of the four copper retirement orders coincides with Chairman Carr's announcement of the opening of the Commission's DELETE, DELETE, DELETE initiative. Under new leadership, the Commission's early actions are hopeful indicators that the agency will modernize its rules and reduce old and wasteful requirements. 

P.S. The reduction and modernization of the FCC's rules will be on the agenda for the Free State Foundation's Seventeenth Annual Policy Conference - #FSFConf17 - on Tuesday, March 25, in Washington D.C. Register online. 

The Agenda for #FSFConf17 Is Released! and Free Speech Is "The Indispensable Right"

The Free State Foundation’s Seventeenth Annual Policy Conference is fast approaching on Tuesday, March 25. The agenda is here, but, as always, please note it is possible there may be adjustments in the time slots due to circumstances beyond our control.

I’m delighted that we have assembled a remarkable lineup of speakers that includes Senator Ted Cruz, Chairman of the Senate Commerce Committee, and Congressman Richard Hudson, Chairman of the House Subcommittee of Communications and Technology. And Brendan Carr, Chairman of the Federal Communications Commission, and Andrew Ferguson, Chairman of the Federal Trade Commission, along with many more notables, including FCC Commissioner Nathan Simington, FTC Commissioner Melissa Holyoak, former FCC Chairman Ajit Pai, and former FCC Commissioner and FSF Adjunct Senior Fellow Michael O'Rielly. For the full list of speakers, and other conference information and a registration link, click here.

In other words, as usual, the conference will be an unrivaled forum for up-to-date discussion and debate on the most important and consequential public policy issues affecting communications and Internet law and policy, as well as competition, and consumer protection issues.

But here I want to highlight one session in particular: Jonathan Turley, Shapiro Chair of Public Interest Law, George Washington University Law School, and a Fox News Media Contributor, will discuss his important new book: "The Indispensable Right: Free Speech in an Age of Rage," in which he explains why free speech, indeed, is "The Indispensable Right."

 

If you follow the Free State Foundation's work then you know that protecting the First Amendment's right to free speech against government infringement, and promoting a Constitutional Culture in which our nation's citizens can speak freely even when the First Amendment itself does not protect such freedom, always has been an important part of our mission.

Over the years, I have written often explaining why this aspect of our mission is so critical. Suffice it to say for my purposes here, defense of free speech is as important as ever, especially as the nation has witnessed notorious examples of censorship – by both the government and by private entities, including by some of the most dominant Internet websites – over the past five or so years.

In his book, Jonathan Turley writes: "We are living through another period of such public distemper where our most cherished institutions and rights are being questioned by both the left and the right." He goes on to say that, most menacingly, today's rage is directed at the one right that Supreme Court Justice Louis Brandeis called "indispensable for the maintenance of all other rights: free speech."

And Professor Turley warns that the "use of euphemisms like 'disinformation' and 'content moderation' does not change the fact that they are part of a comprehensive effort to control, and, in some cases, punish the exercise of free expression."

Because I believe that the ability of our nation's individual citizens to speak freely is not only indispensable to maintaining our democracy but also to preserving the competition, innovation, and investments upon which free markets depend in order to function effectively, I can't wait to hear Professor Turley's remarks next Tuesday.

There's that – and so much more – that awaits!

Here's the agenda. And here's the link to register if you wish to attend!

Senators Reintroduce Bill for Faster Broadband Permitting on Federal Land

According to reports, on March 5, Senators John Thune, Ben Ray Luján, and John Barrasso reintroduced the Accelerating Broadband Permits Act. The bill's purpose is to improve executive agencies' processing of permit applications to construct communications facilities on federal land. 

As explained in my blog post from August 7, 2024, executive agencies with supervision over federal lands have been found by have problems processing permit applications within the MOBILE NOW Act's 270-day deadline. The Accelerating Broadband Permits Act is intended to help identify instances where the agencies are at risk of missing deadlines deadline and ensure they meet them.

 

The Accelerating Broadband Permits Act isn't a big, wasteful spending bill. It is an agency accountability bill that could help accelerate broadband network on land held in trust or owned by the federal government. Senators Thune, Luján, and Barrasso deserve credit for bringing this bill back. Hopefully, the Act fares better in the 119th Congress and receives timely consideration.

 

(At the time of this blog post, no bill number or link to the bill are available on the Senate's website.) 

Pennsylvania Bill Would Turn Broadband Internet Networks into Public Utilities

On March 17, Pennsylvania House Bill 924 was referred to a legislative committee in that state's lower chamber. If it were to become law, the bill would change the definition of "public utility" under Pennsylvania law to include "[p]roviding persons with the ability to connect to the Internet through equipment that is located in this Commonwealth." In short, PA House Bill 924 is a state net neutrality bill, that would impose no blocking, no throttling, no paid prioritization, and other restrictions on provider network management, and delegate authority to the state's public utility commission to regulate broadband Internet access services.  

PA House Bill 924 was filed in the wake of the Sixth Circuit's March 11 order denying a rehearing en banc on that court’s January 2 three-judge panel decision to vacate the FCC's 2024 Title II Order. The state bill also follows closely on the heels of the Supreme Court's February 24 order deny a rehearing on its prior order to deny a writ of certiorari in New York State Telecommunications Association v. James. The denial of a rehearing in James leaves in place a Second Circuit decision from April 2024 that upheld New York State’s Affordable Broadband Act that imposed rate regulation on interstate Internet broadband access services offered by broadband providers in that state.

 

It seems unlikely, if not implausible, that Congress intended to open up jurisdictionally interstate information services (previously known as "enhanced services") like broadband access to state regulation when it established non-regulated or lightly-lightly regulated Title I classification for "information services" in the Telecommunications Act of 1996. But according to three circuit courts of appeal, that apparently is what Congress did. The Second, Ninth, and D.C. Circuits – have concluded that the FCC's decision in the 2017 Restoring Internet Freedom order to classify broadband access services as Title I services had the effect of removing the agency's jurisdiction over interstate broadband services, thus preventing the Commission from preempting state public utility regulation of those same services. 

 

For some further context, the FCC's proceeding that led up to the FCC's 2024 Title II Order cited zero instances of blocking, throttling, or harmful paid prioritization arrangements. Moreover, all or nearly all broadband ISPs in America have terms of service pledges to not engage in blocking, throttling, or harmful paid prioritization. So long as broadband access services are Title I "information services" (and not Title II "telecommunications services") those service term pledges are enforceable by the Federal Trade Commission under its authority to address unfair and deceptive trade practices. 

 

Expect the issue of state-level public utility regulation of broadband Internet access services, including price controls, to be a subject of discussion at the Free State Foundation's Seventeenth Annual Policy Conference – #FSFConf17 – on March 25, in Washington, D.C. Register today for the conference. 

FCC Chairman Brendan Carr a Keynoter at FSF's March 25 Conference! Register Now!

 Registration Now Open!

New Keynote Speaker Announced!

 

Brendan Carr

Chairman, Federal Communications Commission

 

Previously Announced Keynoters Include: 

 

Senator Ted Cruz

 

Jonathan Turley

 

Ajit Pai

 

Nathan Simington

 

WHAT: FSF's Seventeenth Annual Policy Conference

 

WHERE: National Press Club, Washington, DC

 

WHEN: Tuesday, March 25, 2025

 

The Free State Foundation will hold its Seventeenth Annual Policy Conference on March 25, 2025, at the National Press Club in Washington, DC. This annual conference is acknowledged to be one of the nation's premier law and policy events.

 

As always, a truly outstanding lineup of senior officials and prominent experts from the FCC and Congress, and from other government agencies, industry, academia, and think tanks will discuss and debate the most important communications and Internet policy issues of the day, as well as other topical law and policy issues involving free market competition, free speech, and the rule of law.

 

With a new Trump administration, a new Congress, and new leadership at the FCC, FTC, and other agencies, this promises to be one of the most impactful of FSF's annual conferences.

 

REGISTRATION IS COMPLIMENTARY, INCLUDING CONTINENTAL BREAKFAST AND LUNCH.

BUT YOU MUST REGISTER TO ATTEND.

REGISTER HERE!

 

#FSFConf17

USF Tax Rises to Record High 36.6%

On March 13, the FCC's Office of Managing Director announced that the Universal Service Fund (USF) contribution factor for the second quarter of 2025 will be 36.6%. Absent intervention by the FCC's Commissioners, the proposed rate will soon go into effect. 

The expected rate hike to 36.6% appears to result in another new all-time high for the "USF Tax." It is far higher than the rate from a few years ago. 

 

The U.S. Court of Appeals for the Fifth Circuit rightly called USF surcharges an unconstitutional "USF Tax." They are imposed on voice consumers based on a percentage of the long-distance part of their monthly bills. The money paid by consumers is collected by the voice carriers and passed on to the Universal Service Administrative Company (USAC), the private corporation established by the FCC to administer the USF program and dole out subsidies to program recipients. 

 

The Supreme Court granted a writ of certiorari in FCC v. Consumers' Research, a case involving the issue of whether the USF contribution mechanism is constitutional under the Article I, Section 1 Legislative Vesting Clause. The Court will hold oral arguments in the case on March 26. 

 

USF reform is one of the topics that is sure to be part of the discussion at the Free State Foundation's upcoming Seventeenth Annual Policy Conference – #FSFConf17. The conference will be held in Washington, D.C. on March 25. Conference registration and the conference agenda are available online. 

House Commerce, Commerce Department Commence BEAD Reforms

Multiple efforts are underway to reform the beleaguered $42.45 billion Broadband Equity, Access, and Deployment (BEAD) Program.

Representative Richard Hudson (R-NC), Chairman of the House Energy and Commerce Committee’s Subcommittee on Communications and Technology – and Keynoter at the Free State Foundation's upcoming Seventeenth Annual Policy Conference – recently introduced legislation designed to "eliminate the burdensome Biden regulations so that we can get money out the door and shovels into the ground as soon as possible."

In his Opening Statement before "Fixing Biden's Broadband Blunder," a hearing held on March 5, 2025, Chairman Hudson unveiled the Streamlining Program Efficiency and Expanding Deployment (SPEED) for BEAD Act. In the accompanying Press Release, he pointed out that "not a cent of the BEAD funds have been put towards actual deployment for even one household. This is unacceptable. Our rural communities need to be fully connected, and this legislation will do that."

Specifically, the SPEED for BEAD Act would:

• Clarify that BEAD Program money is to be used for two purposes: broadband deployment and workforce development. Consistent with that refined focus, the bill would replace the word "Equity" with the word "Expansion" in the program's title.

• Expressly require the return to the U.S. Treasury of unused funds.

• Prohibit the consideration, when awarding grants, of the following: prevailing wages, project labor agreements, union workforces, collective bargaining, local hiring, commitments to union neutrality, labor peace agreements, workforce composition (or the reporting thereof), climate change, the regulation of network management practices (including data caps), open access requirements, and certain letter of credit requirements.

• Provide applicants greater flexibility with respect to service area.

• Expand the definition of "reliable broadband service," consistent with the principle of technological neutrality, to include "any broadband service that meets the performance criteria … without regard to the type of technology by which such service is provided."

• Expound upon the existing ban on the regulation of rates (see below).

Regarding rate regulation, the bill makes clear that neither NTIA nor the states may:

[R]egulate, set, or otherwise mandate the rates charged for broadband service or the methodologies used to calculate such rates, for consumers generally or for any subset of consumers, including through the capping or freezing of such rates, the encouragement of another entity to regulate such rates, or the use of rates as part of an application scoring process.

The SPEED for BEAD Act explicitly would ban any such forms of rate regulation even if approved prior to its enactment or adopted "in conjunction with the requirement to offer a low-cost broadband service option."

The same day, Secretary of Commerce Howard Lutnick issued a Statement announcing that:

Under [his] leadership, the Commerce Department has launched a rigorous review of the BEAD program. The Department is ripping out the Biden Administration's pointless requirements. It is revamping the BEAD program to take a tech-neutral approach that is rigorously driven by outcomes, so states can provide internet access for the lowest cost. Additionally, the Department is exploring ways to cut government red tape that slows down infrastructure construction.

Since the passage of the legislation that created the BEAD Program, the Infrastructure Investment and Jobs Act, in 2021, FSF scholars repeatedly have criticized the Biden Administration for its prioritization of extraneous policy preferences that discouraged proven broadband providers from participating, raised costs, and ground implementation to a standstill.

They include impermissible rate regulation, inappropriate labor- and climate-related mandates, the unjustified promotion of government-owned networks, and a pro-fiber bias that brazenly defied the statute's technologically neutral intent. 

 

Press Release: Reaction to FCC Chairman Carr's Deregulation Initiative

March 12, 2025

Free State Foundation President Randolph May issued the following statement reacting to Chairman Carr's new deregulatory initiative:

I commend Chairman Carr for undertaking this deregulatory effort, and I'm optimistic it will bear fruit in eliminating hundreds of existing regulations that no longer should be on the books and that actually inhibit new entrants from competing. It's undeniable that technological developments over the last several decades have enabled marketplace competition that has rendered legacy regulations unnecessary and often burdensome and costly. This is not good for consumers or for the American economy. Some good progress was made in this regard during Ajit Pai's chairmanship, but there's much more work to be done, as Chairman Carr realizes.

PRESS RELEASE: The Sixth Circuit's Denial of Rehearing Should Be Net Neutrality's Death Knell

 

Free State Foundation President Randolph May released the following statement regarding the Sixth Circuit’s denial of a petition to rehear a panel’s January 2 decision overturning the FCC’s latest net neutrality regulations: 

“The Sixth Circuit’s denial of a petition for a rehearing en banc of a panel’s January 2, 2025, decision overturning the Biden FCC’s imposition of a public utility-like regulatory regime on broadband providers under the rubric of so-called 'net neutrality' should not be surprising. After all, six different Sixth Circuit judges already had ruled that the FCC’s regulations were unlawful, or in the case of the earlier stay of the FCC’s order, likely unlawful. Indeed, not one judge requested a vote on the rehearing petition.

 

“What would be surprising now — and a fruitless waste of time and resources — would be if the pro-public utility regulation advocates continued to pursue further litigation. There is no evidence of demonstrable consumer harm or marketplace failure that would justify the type of public utility regime that the Biden FCC sought to impose on broadband providers. In any event, the appropriate place for establishing a proper (hopefully deregulatory) framework for broadband policy, if a new framework is needed, is Congress."