TMT with Mike O'Rielly - Ep 21: International Communications

Episode 21 of "TMT with Mike O'Rielly," a videocast featuring former FCC Commissioner and Adjunct Senior Fellow at the Free State Foundation Michael O'Rielly, was released on May 2. In this episode, titled "International Communications Procedures and Policies," Mr. O'Rielly has a conversation with guest David A. Gross, Partner at Wiley Rein and a former Ambassador when serving as U.S. Coordinator for International Communications and Information Policy, U.S. Department of State. Their conversation includes topics such as spectrum coordination in the U.S. global spectrum harmonization, and the World Radiocommunication Congress (WRC). Streaming video of the episode is now available: 

Forget Dismissal of CPB's Directors, Just End the Government Subsidies

By Randolph May

President Trump is attempting to fire three of the five members of the Corporation for Public Broadcasting's board of directors. Congress established CPB as a non-profit corporation "which will not be an agency or establishment of the United States Government." CPB is challenging the attempted dismissal of the directors in court.

CPB may be a private corporation, but it was created by the government, and it's funded by the government. And its directors are appointed by the president and subject to Senate confirmation. So, whether the president may dismiss its directors at will presents an interesting question, obviously more difficult than that presented by the president's authority to fire the heads of executive branch agencies.

But amidst the current controversy regarding whether, in this age of media abundance, government funding for public broadcasting should be continued, little attention has been paid to the provision in the Public Broadcasting Act of 1967, under which CPB was created, that declares that the Corporation shall facilitate programming "obtained from diverse sources" and "with strict adherence to objectivity and balance in all programs or series of programs of a controversial nature."

In evaluating whether CPB directors should be retained or dismissed, a relevant consideration should be the extent to which they have made any efforts to ensure compliance with the "objectivity and balance" requirement in the programming CPB facilitates. The statute put it on their "job sheet," so to speak.

Considering the long-standing pronounced leftist tilt of the programming of PBS and NPR, the recipients of CPB's government funds, I'd say that the directors – maybe many of them from all political stripes – haven't done a very good job in overseeing compliance with the "objectivity and balance" stricture.

So, a question more fundamental than whether the president has authority to dismiss CPB's directors is whether, in this present age of media abundance with outlets catering to all conceivable audiences and interests, taxpayers should continue to be required to subsidize public broadcasting. As I explained in this op-ed a short time ago: "It's Past Time to End Public Broadcasting Subsidies." 

TAKE IT DOWN Act Passed by Congress, Heads to President's Desk

On April 29, the U.S. House of Representatives passed, by a 409-2 vote, the Tools to Address Known Exploitation by Immobilizing Technological Deepfakes on Websites and Networks Act or the "TAKE IT DOWN Act" (S. 146). The bill, which passed by unanimous voice vote in the Senate on February 13, now goes to President Donald Trump's desk for signature. 

As described in a January 16 press release by the Senate and House bills' sponsors, the TAKE IT DOWN Act “makes it unlawful for a person to knowingly publish [non-consensual intimate imagery (NCII)] on social media and other online platforms. NCII is defined to include realistic, computer-generated pornographic images and videos ["deep forgeries"] that depict identifiable, real people." The bill has separate provisions and corresponding criminal penalties applicable to minors and adults, and it specifies that a victim consenting to the creation of an authentic image does not mean that the victim has consented to its publication.

 

Additionally, the TAKE IT DOWN Act includes a notice-and-takedown provision that requires social media and other public websites or internet services to establish procedures for the removal of NCII in response to a valid request from a victim, within 48 hours. Under the bill, websites also are required to make reasonable efforts to remove copies of the unauthorized images. Websites that make good faith efforts to remove NCII or disable access to it receive immunity from legal claims relating to such removal or disabled access. However, a website’s failure to comply with the notice-and-takedown requirements constitutes an unfair or deceptive act or practice under the Federal Trade Commission Act. Under the TAKE IT DOW ACT, the FTC has authority to enforce the notice-and-takedown requirements and impose penalties for non-compliance. 

 

The TAKE IT DOWN Act appears to be a commonsense measure, carefully written, and reasonably necessary to address a serious problem that is nationwide in scope. President Donald Trump is expected to sign the bill into law. Credit and congratulations are due to the bill's supporters and its sponsors.

 

The TAKE IT DOWN Act (S.146) is sponsored by Senators Ted Cruz and Amy Klobuchar. Reps. Maria Elvira Salazar and Madeleine Dean are sponsors of the House companion bill (H.R.633). Senator Cruz, who is Chairman of the Senate Commerce, Science, and Transportation Committee, talked about the TAKE IT DOWN Act during his keynote address at the Free State Foundation's Seventeenth Annual Policy Conference in Washington D.C. on March 25, 2025: 

NO FAKES Act to Combat "Deepfakes" is Reintroduced in Congress

On April 11, the "Nurture Originals, Foster Art, and Keep Entertainment Safe Act of 2025" or "NO FAKES Act" was re-introduced in the U.S. House of Representatives (H.R. 2794) and Senate (S. 1367). The House bill is sponsored by Rep. Maria Elvira Salazar and the Senate bill is sponsored by Sen. Christopher Coons. The NO FAKES Act would bolster individuals' intellectual property rights in their likenesses and voices by recognizing a private right of action against unauthorized and harmful "deepfakes." The bill has bipartisan backing as well as the endorsement of a cross-section of the creative and tech industries. The NO FAKES Act is strong on the merits and the 119th Congress should give it due consideration. 

 

Although generative AI technologies offer potential benefits, they also may be abused. Public displays and dissemination of "deepfake" songs misappropriate the value of recording artists’ voices, damaging the artists economically. Also, generative artificial intelligence (AI) tools and services on the Internet allow users to create "deepfake" explicit pictures and videos of individuals.

 

The NO FAKES Act would address those "deepfake" dangers in a targeted way by establishing a national uniform baseline of legal protection for an individual’s likeness and voice from unauthorized digital replicas. If passed by the 119th Congress and signed into law by President Donald Trump, the Act would make civilly liable anyone who knowingly produces a digital replica without the consent of the rights owner. It also would make civilly liable anyone who knowingly publishes, reproduces, displays, distributes, transmits, or makes the digital replica available to the public without the rights owner's consent. Persons harmed under the Act would have a right to seek statutory or actual damages, recovery of costs and attorneys’ fees, and injunctive relief. 

 

Recognizing the potential benefits of authorized digital replicas, the NO FAKES Act provides that individuals would have the right to license their personas for digital replication by third parties. Additionally, the Act is carefully written to address abuses and it includes safeguards for First Amendment-protected free speech and expression using generative AI tech. It bears emphasis that the NO FAKES Act is about private law – personal rights and intellectual property rights; it is not a federal criminal law bill.

 

A more detailed review of the same bill, previously introduced in the 118th Congress, is provided in my August 2024 Perspectives from FSF Scholars, "The 'NO FAKES Act' Would Protect Americans' Rights Against Harmful Digital Replicas."

Public Safety Served by Enterprise Communications Networks, Not Public Utility Regulation

On March 31, AT&T and the FirstNet Authority announced that total connections to the FirstNet nationwide public safety broadband network increased to 7.1 million across 30,000 law enforcement and first responder agencies during the first quarter of 2025. FirstNet was constructed and is operated by AT&T, and it is overseen by FirstNet Authority, an agency in the NTIA.

As explained in my February 2024 blog post, "FirstNet's Public Safety Communications Network Continues to Grow,"widespread adoption by law enforcement and first responder agencies of FirstNet – as well as competing enterprise networks, such as VerizonFrontline and T-Mobile's T-Priority – undermines the Biden FCC's public safety rationale for its now-vacated public utility regulation of broadband Internet access services. 

 

In the Securing and Safeguarding the Open Internet Order (2024), the Commission officially rebranded public utility regulation as a public safety measure. Public utility regulation has a long history. However, the idea that public utility regulation was vital to public safety and national security appears to have been entirely unknown until late 2023, when the Biden FCC launched its efforts to impose such regulation on high-speed broadband Internet services under Title II of the Communications Act. What a coincidence!

 

The Securing and Safeguarding the Open Internet Order was vacated by the U.S. Court of Appeals for the Sixth Circuit on January 2 of this year. In MCP No. 185 (2025), the court concluded that broadband Internet services are best understood as lightly regulated "information services" under Title I of the Act and not "telecommunications services" under Title II.

 

On April 28, the Free State Foundation filed reply comments in the FCC's Delete, Delete, Delete proceeding. In those reply comments, FSF President Randolph May and I recommended that the newly constituted FCC, under Chairman Brendan Carr's leadership, delete the now-vacated public utility rules from the Code of Federal Regulations. FSF's reply comments also recommend that the Commission delete many other outdated, harmful, and unnecessary regulations of communications services and close proceedings in which the agency previously had recommended additional regulations. FSF's initial comments in the Delete, Delete, Delete proceeding – focused on outdated, harmful, and unnecessary regulations of video services – were filed on April 11.

House Passes Bill for 6G Task Force and Report

On April 28, the U.S. House of Representatives passed, by a unanimous voice vote, H.R. 2449 – the "Future Uses of Technology Upholding Reliable and Enhanced Networks Act" or the "Future Networks Act." Sponsored by Rep. Doris Matsui and co-sponsored by Reps. Rick Allen and Tim Walberg, the Future Networks Act, if it were to be passed by Congress and signed into law by President Donald Trump, would direct the FCC's Chairman to appoint a "6G Task Force" that would prepare and send to Congress a report on developing standards, uses, and related issues involving future 6G wireless networks. 

Under the bill, the members of the 6G Task Force would include representatives of the communications industry, public interest organizations or academic institutions, and representatives of federal, state, local, and tribal governments. The Future Networks Act requires that, within 180 days of the 6G Task Force being established, the group prepare a draft report on 6G wireless technology. The draft report would be published on the FCC's website and in the Federal Register for public comment Following the public comment period, and within 1 year of the 6G Task Force being established, the group would publish their final report and submit it to House and Senate Committees. 

The development of 6G technologies, standards, and spectrum policies no doubt will be a multi-faceted and complex undertaking. A future 6G report by the type of task force proposed in the Future Networks Act could serve as a valuable storehouse of knowledge for Congress, the FCC, and the Executive Branch and help pave the way for a successful eventual launch of 6G wireless networks. Now that the Future Networks Act has passed the House, the Senate should give the bill due consideration. 

 

In an April 2023 blog post, Free State Foundation President Randolph May identified the restoration of the FCC's authority to conduct competitive bidding spectrum license auctions as essential for future 6G network deployment. However, in the near term, there are many opportunities for expanding 5G networks by repurposing spectrum from government use to private use. Seizing those opportunities depends not only on a replenished spectrum pipeline but revival of the Commission's auction authority. The 119th Congress should restore the FCC’s authority on spectrum license auctions and encourage timely replenishment of the spectrum pipeline. 

TMT with Mike O'Rielly – Ep 20: Technologist Views on Broadband Policy

Episode 20 of "TMT with Mike O'Rielly," a videocast featuring former FCC Commissioner and Adjunct Senior Fellow at the Free State Foundation Michael O'Rielly, was released on April 15. In this episode, titled "A Technologist's View of Broadband and Public Policies," Mr. O'Rielly has a conversation with Dr. Sanjay Udani, former Verizon Chief Technologist & Vice President of Public Policy. Their conversation ranges a number of broadband technology and policy topics, including fiber deployment and Fios, capabilities of alternate technologies such as fixed wireless access (FWA) and low-earth orbit (LEO) satellite, public overemphasis on broadband speeds, the state and future of 4G and 5G wireless networks, and more. Streaming video of the episode is now available:

The FCC Should Rescind the Telnyx Forfeiture Now

I was pleased to see the report in today's Communications Daily [subscription required] that Telnyx, which is contesting a $4.5 million forfeiture proposed by the FCC, has been reinstated in good standing by the Industry Traceback Group (ITG). ITG, established by USTelecom, works collaboratively with voice service providers to combat illegal calls by tracing them back to their origin.

 

A Free State Foundation Perspectives, published March 12, 2025, explained in detail why the FCC's proposed forfeiture, based on a claim that Telnyx failed to satisfy the agency's "Effective Measures" rule for blocking illegal calls, raises serious rule of law concerns implicating fundamental due process and fair notice constraints. As the FSF Perspectives states: "This is because it appears Telnyx, and other providers for that matter, could not have known in advance the requirements of the rule Telnyx is charged with violating."

 

In this instance, if not rescinded, the proposed forfeiture, in effect, would transform the "Effective Measures" rule by imposing more stringent yet unspecified requirements and a higher liability standard than that which the Commission previously established through notice-and-comment rulemakings. As such, the FCC's proposed forfeiture smacks of "regulation by enforcement." This is because regulated entities are deprived of the ability to know and follow the law, contrary to the requirement of fair notice and the prohibition of unfair surprise that are recognized in Supreme Court's Fifth Amendment Due Process Clause jurisprudence.

 

 

As the FSF Perspectives observed:

 

These due process concerns are at the core of President Trump's newly reinstated Executive Order 13892 – "Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication." The very first sentence reads: "Regulated parties must know in advance the rules by which the Federal Government will judge their actions." The EO goes on to declare that regulated entities should not be subjected to a civil administrative enforcement action or adjudication absent prior public notice of "the legal standards applicable to that conduct." Indeed, the EO directs that agencies "shall afford regulated parties the safeguards described in this order, above and beyond those that the courts have interpreted the Due Process Clause of the Fifth Amendment to the Constitution to impose."

Indeed, considering its vagueness and open-endedness, the FCC itself should "DELETE" the "Effective Measures" rule that Telnyx is claimed to have violated. In accordance with President Trump's April 9 Presidential Memorandum, "Directing the Repeal of Unlawful Regulations," this likely unlawful rule, which inherently invites abuse on the basis of lack of due process and fair notice, should be repealed on the agency's own initiative.

 

In the meantime, and more immediately, the FCC should act now to rescind the proposed Telenyx forfeiture. Hopefully, ITG's reinstatement is a positive indication in that regard.

House Committee Advances New Bill to Reauthorize and Strengthen NTIA

On April 11, the House Commerce Committee voted to approve the National Telecommunications and Information Administration Act of 2025 – HR 2482, a bill introduced on March 31 by Representatives Bob Matsui and Doris Matsui. The bill would reauthorize the NTIA for the first time in over 30 years. Additionally, HR 2482 would elevate the position of NTIA Administrator from a Deputy Assistant Secretary in the Commerce Department to a Deputy Under Secretary.  

Elevating the position of NTIA Administrator likely would give the officer more clout in undertaking important agency functions, such as coordinating spectrum use and planning among executive branch agencies. Federal government agencies occupy a significant amount of spectrum. Stronger leadership at NTIA could help further a more effective interagency spectrum coordination process for repurposing some of that spectrum for private commercial use. 

 

As recounted in a blog post from July 31, 2023, the House Commerce Committee passed an earlier version of the NTIA Reauthorization Act during the 118th Congress. The prompt passage of HR 2482 in the 119th Congress indicates that this bi-partisan legislation could become law this year. 

 

Credit is due to Reps. Latta and Matsui for their persistence on the NTIA Reauthorization Act. HR 2482 deserves a timely vote by the House of Representatives.   

House Committee Advances Bill for Vetting Recipients of High-Cost Broadband Subsidies

On April 8, the House Commerce Committee voted 50-1 to pass the Rural Broadband Act of 2025 – HR 2399. The bill would require the FCC to establish a vetting process for future applicants for future high-cost universal service program funding for deployment and supporting broadband Internet access services. The purpose of the vetting process is to ensure that subsidies go to entities that are capable of fulfilling their universal service obligations. 

The Rural Broadband Act has been introduced in prior Congresses. My blog post from February 16, 2023, describes a bit more about the bill as it was introduced in the 118th Congress by Senators Shelley Moore Capito and Amy Klobuchar. 

 

This bi-partisan legislation appears to be a reasonable measure to help prevent money collected from U.S. consumers via surcharges – effectively, "USF Taxes" – being misspent and wasted. The House of Representatives should give HR 2399 an up-or-down vote.

 

Meanwhile, the need for an overhaul of the Universal Service Fund is still pressing. As Free State Foundation President Randolph May and I explained in our August 2023 comments to the Universal Service Reform Working Group: "Reform of the USF subsidy system is urgently needed because the system is outdated and no longer fiscally sustainable." The existing universal service regime was established in a voice-centric 1990s context, with a broader contribution base and much smaller sized fund than today with a dwindled base and a bloated annual distribution amount of $7 billion to $8 billion. As a result, the USF Tax has continued to climb, and the most recent proposed quarterly contribution factor increase will raise the USF Tax to 36.6%.

 

Notably, the constitutionality of the contribution mechanism of the USF was the subject of oral arguments before the Supreme Court on March 26 of this year. Regardless of the Court's verdict on the constitutionality of the USF's contribution system, economic realities require reforms. One possible reform is switching from the USF Tax to appropriations by Congress. Another reform option is expanding the contribution base to major Internet websites that benefit the most from universal broadband connectivity. Those ideas were among the many topics discussed at the Free State Foundation's Seventeenth Annual Policy Conference – #FSFConf17 – held on March 25, 2025, in Washington D.C. Video of the conference panels, keynote addresses, and keynote conversations are available online.

TMT with Mike O'Rielly – Ep 19: Keynote Convo at FSF's 17th Annual Conference

Episode 19 of "TMT with Mike O'Rielly," a videocast featuring former FCC Commissioner and Adjunct Senior Fellow at the Free State Foundation Michael O'Rielly, was released on April 2. In this episode, titled "The Free State Foundation's Seventeenth Annual Policy Conference," Mr. O'Rielly has a conversation at #FSFConf17 with guests FTC Commissioner Melissa Holyoak, FCC Commissioner Nathan Simington, and former FCC Chairman Ajit Pai. Their conversation ranges a number of communications, competition, and administrative agency-related topics. Streaming video of the episode is now available: 

FCC Should Keep Verizon/Frontier Merger Clean From Extraneous Conditions

Today, April 2, Communications Daily reported on dueling ex parte filings in the Verizon/Frontier merger review proceeding. The Coalition for IP Transition has urged the FCC to condition any prospective agency approval of the merger on IP interconnection-related requirements. However, the Coalition doesn't identify any specific harms arising from the merger. Under prevailing agency precedents (even if sometimes breached to achieve pro-regulatory ends), merger conditions may only be imposed to remedy transaction-specific harms. 

In its ex parte filing, the Coalition for IP Transition raised what they call "the serious problems faced by competitorsbecause of the Applicants and other price cap Local Exchange Carriers ('LECs') refusals to interconnect on an IP-basis, despite offering IP services to other customers" (emphasis added). Notably, the Coalition addresses the practices of price cap LECs' generally, and not just those of Verizon and Frontier. Also, in the alternative to imposing conditions on the agency's prospective approval of the proposed Verizon/Frontier merger, the Coalition "urged the Commission to consider ordering all price cap LECs" to meet certain disclosure, IP interconnection, and access charge-related requirements. Such an order would require agency action through a separate, industry-wide proceeding. 

 

Thus, on its face, the Coalition's ex parte filing is addressed to matters pertaining to the entire voice services market. Accordingly, the Coalition does not raise potential harms that would arise from the Verizon/Frontier merger. Communications Daily reported that Verizon and Frontier responded by making those same points about non-transaction-specific matters. But one need not take the merging parties' word for it. The Coalition's filing makes it plain. 

 

Regardless of one's policy view about tech transitions from TDM to all-IP networks, network interconnection, and access charges in the voice services market, those matters should be addressed, if at all, through separate inquiry or rulemaking proceedings applicable to the entire market – and not through transactions involving only two merging parties. The Commission should not impose the non-transaction-specific conditions requested by the Coalition. 

 

Moreover, the Commission should be mindful that there is a dwindling amount of time left on the agency's informal "shot clock" for completing its review of the proposed Verizon/Frontier. During review periods, merging parties are vulnerable to lost economic opportunity and regulatory uncertainty costs that can undermine their competitiveness. The agency should complete its review and decide before the deadline expires, if not sooner. 

 

For a brief background on the Verizon/Frontier merger, see my blog post from February 5 of this year, "Verizon/Frontier Merger Would Make Fiber and Fixed Wireless More Competitive."

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.