In Podcast, Prof. Adam Mossoff Talks Founding Fathers and IP Rights

The January 6th episode of the IP Protection Matters podcast, "The Historical and Constitutional Foundations of Patent Protection," features an interview with Adam Mossoff, Professor of Law at the Antonin Scalia Law School at George Mason University. In addition to being a Senior Fellow at the Hudson Institute and a Visiting Intellectual Property at the Heritage Foundation, Prof. Mossoff is a member of the Free State Foundation's Board of Academic Advisors.

In the podcast episode, Prof. Mossoff discusses the American Founding Fathers' views on intellectual property (IP) rights. As he explains, the Founders "saw intellectual property largely as the same type of property right that arose from the creation of any other type of property right" through their value-creative productive labors. The Founders recognized the importance of protecting intellectual labor and included the IP Clause in Article I, Section 8 of the U.S. Constitution. 

 

Prof. Mossoff then discusses the historical significance of the Constitution's IP Clause, the significance of President George Washington and the First Congress, the differences between IP rights in the American constitutional order and monopolies under old English law, and the importance of IP protections for ensuring the marketability of IP. These basic principles of IP law apply to both copyrights and patents. The latter part of the interview focuses on contemporary patent reform issues. 

 

For an insightful take on IP rights by an excellent scholar, be sure to check out the IP Protection Matters podcast interview with Prof. Mossoff. And for a deeper dive, Prof. Mossoff has published several academic journal articles. 

 

The IP Protection Matters podcast is a project of the Center for Individual Freedom. 

 

P.S. Many of the key themes about the Founders and IP rights in America’s constitutional order that come up in the podcast interview are analyzed in a book that I co-authored with FSF President Randolph J. May, The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective (Carolina Academic Press, 2015). 

Jonathan Turley Announced as a Keynote Speaker! FSF's 17th Annual Policy Conference on March 25!

Registration Now Open! First Keynote Speaker Announced! Jonathan Turley

Shapiro Chair for Public Interest Law, George Washington University Law School, and Fox News Media Contributor

 

Professor Turley is the author of the important timely new book, "The Indispensable Right: Free Speech in an Age of Rage."

 

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

Spectrum Pipeline and FCC Auction Bill Introduced in House

In welcome news, on January 23, Rep. Rick Allen W. Allen announced the introduction in the House of Representatives of the Spectrum Pipeline Act of 2025. The Act, if it were to become law, would require the NTIA to identify at least 2,500 megahertz (MHz) of mid-band spectrum for reallocation from federal government use to non-federal or shared use in 5 years of the bill's enactment, including at least 1,250 MHz within the next 2 years.  

Additionally, the Act renews the FCC's authority to conduct spectrum license auctions and issue licenses to bid winners. The Commission's authority lapsed in March 2023. Under the Act, the Commission would be required to auction at least 1,250 MHz of spectrum for full-power commercial wireless service within 6 years, and at least 600 MHz of that spectrum must be auctioned within 3 years. 

 

Notably, the Act also requires the FCC to allocate at least 125 MHz of spectrum for unlicensed use, such as WiFi. 

 

At the January 23 hearing on wireless technology held by the House Subcommittee on Communications & Technology, there appeared to be bipartisan unanimity on the conclusion that more spectrum needs to be put into use for licensed and unlicensed use and that the FCC's lapsed spectrum license auction authority should be restored promptly. 

The Commission's 2024 Communications Marketplace Competition Report includes a chart by CTIA that shows the dramatic rise in mobile data traffic, and an unmistakable upward trend that will continue as more and more connected devices go into use and as data usage per subscriber continues to go up: 

Additionally, the 2024 report observes that "[a] large proportion of mobile data traffic is delivered on an unlicensed basis through Wi-Fi, Bluetooth, and similar protocols." Furthermore: "Telecom Advisory Services asserts that the economic benefits associated with Wi-Fi in the United States will rapidly grow to $2.4 trillion in 2027, including an estimated $514 billion in consumer benefit, $624 billion in producer surplus, and $1,286 billion in GDP." And "[a]ccording to LightReading, the average Verizon subscriber offloads approximately 78% of their data onto Wi-Fi, for example, while Comcast subscribers offload approximately 94%." For other highlights from the report, see my Perspectives from FSF Scholars, "The FCC's 2024 Communications Marketplace Report: Time for a Broader View of Competing Broadband Services," published January 24, 2025. 

 

Also important is the NERA study published on January 23 that estimates the tremendous economic value created through the allocation of spectrum for licensed use. For more on that, see my January 23 blog post, "Report: Putting Mid-Band Spectrum into Licensed Use Adds Billions to Economy."

 

The Spectrum Pipeline Act that Rep. Allen introduced is a companion to the similarly-titled bill from March 2024 that Senators Ted Cruz and John Thune sponsored. As Free State Foundation President Randolph May stated in a March 11, 2024, Media Advisory regarding the Senate bill from the last Congress: 

No doubt there may be different views regarding the specific dates and amounts identified for reallocation contained in the bill. But there should be widespread agreement that it provides a good basis for moving forward promptly to develop a bipartisan, bicameral plan to address the nation's now-lagging spectrum efforts.

Everything President May said then applies with equal measure to the Spectrum Pipeline Act of 2025. Several months later, no substantial progress has been made on the wireless spectrum front. Timely action by Congress is even more important to get the desired result from having more spectrum in use. Rep. Allen deserves credit for filing the bill and undertaking efforts to make that happen. 

Report: Putting Mid-Band Spectrum into Licensed Use Adds Billions to Economy

On January 23, CTIA published a report, "The Economic Impact of Each Additional 100 MHz of Mid-band Spectrum for Mobile." 

The report, prepared by NERA, identifies the serious looming shortfall of mid-band range (1 GHz to 7 GHz bands) spectrum for licensed use in the face of sharply rising demand – and it goes on to estimate the tremendous economic benefits that result from putting more spectrum into licensed use:

[T]he wireless industry is rapidly approaching a spectrum deficit that will result in network congestion, thereby hindering the continued growth fueled by the wireless industry. Projections indicate that wireless operators will need at least 400 MHz of additional spectrum by 2027 to meet the needs of the U.S. economy, a deficit that will continue to grow to over 1400 MHz by 2032.

…

We estimate that each additional 100 MHz of mid-band spectrum to mobile will generate $264 billion of GDP, about 1.5 million new jobs, and about $388 billion in consumer surplus. The impact of 400 MHz of mid-band spectrum would be $1.1 trillion of GDP, 6.18 million new jobs, and about $1.5 trillion in consumer surplus. Beneficial effects would continue to accumulate beyond 400 MHz, and we estimate that by 2028 even 400 MHz of new 5G spectrum will not be enough to keep up with consumer demand.

The report traces the economic benefits of allocating mid-band spectrum for wireless use, including better mobile and fixed wireless access (FWA) for consumers and business employers, as well as support for industries that rely on mobile connectivity or serve the wireless industry.  

 

Reallocating spectrum occupied by federal agencies for licensed commercial use will require Congress to reauthorize the FCC's authority to conduct spectrum auctions and issue licenses to bid winners. Restoring that authority should be a top priority of the 119th Congress. Achieving this result and maximizing the economic benefits of licensed spectrum use also likely will depend on Congress and the Trump Administration finding ways to accelerate or revamp the existing National Spectrum Strategy to get lower 3 GHz and other spectrum ready on a much faster timetable.  

A New Administration Brings Renewed Hope for Renewed FCC Spectrum Auction Authority

It has been 686 days since Congress allowed the FCC's spectrum auction authority to expire on March 9, 2023. Absent additional auctions, not to mention the identification of specific spectrum bands to be auctioned for commercial use, mobile operators will struggle to satisfy consumers' insatiable demand for wireless data.

Moreover, the U.S. could risk ceding mobile broadband leadership to its global adversaries – in particular, China, the national security concerns regarding which I wrote about recently in two posts to the FSF Blog.

As Rhonda Johnson, AT&T EVP, Federal Regulatory Relations, wrote in a January 15, 2025, blog post, "AT&T stands ready to invest in the next set of 'anything-is-possible' predictions about what 'you will' be able to do in the years to come" – but "[t]he private sector cannot acquire the spectrum it needs in the U.S. until Congress reauthorizes the FCC to conduct auctions and the government allocates more full-power mid-band spectrum for licensed commercial use."

Fortunately, there is reason for optimism.

First, in his Statement on being designated FCC Chairman, Brendan Carr prioritized "unleashing new opportunities for jobs and growth through agency actions on spectrum."

Second, at today's House Committee on Energy and Commerce Subcommittee on Communications and Technology hearing titled "Strengthening American Leadership in Wireless Technology," regarding which Free State Foundation Director of Policy Studies and Senior Fellow Seth L. Cooper blogged yesterday, Subcommittee Chair Richard Hudson (R-NC) noted the following in his Opening Remarks:

Last Congress, the [FCC's] spectrum auction authority expired for the first time due to disagreements about how spectrum resources should be allocated. These auctions have historically brought in billions to our national economy, with the highest spectrum auctions raising over $80 billion from private companies. It is simple economics: there is limited supply, unlimited demand, and a willingness to pay. We need to reauthorize the FCC's spectrum auction authority immediately.

Third, Senate Commerce Committee Chairman Ted Cruz (R-TX) reportedly has described renewal of the FCC's spectrum auction authority as "his top tech policy priority for reconciliation, a process that will allow the GOP to push through budget-related legislation with its slim Senate majority."

In March 2024, Senator Cruz and Senator John Thune (R-SD), the new Senate Majority Leader, introduced the Spectrum Pipeline Act of 2024, legislation that would have renewed the FCC's spectrum auction authority and required it to auction for full-power commercial use at least 1,250 megahertz within 6 years.

House Hearing Should Prompt Action on Wireless Spectrum, FCC Auctions

On January 23, the House Subcommittee on Communications & Technology will hold a hearing titled "Strengthening American Leadership in Wireless Technology." The hearing will feature witness testimony addressing spectrum management, licensed versus unlicensed spectrum, spectrum auction authority, international harmonization, and radio access networks (RANs).

The hearing is important because next-generation wireless networks are vital to our nation's economic vitality and competitive. Also, the hearing is timely because there is an urgent need for more spectrum dedicated to commercial wireless use, particularly licensed spectrum and especially spectrum in the mid-band range (1 GHz to 7 GHz).

 

Wireless device connections and mobile data usage are rising sharply each year, with demand rising ever-higher in the years to come. Unfortunately, the U.S. supply of licensed spectrum is likely to fall short absent the reallocation of additional spectrum from government occupancy to private commercial use. At this moment, there is no spectrum waiting in the wings to be repurposed for commercial use, despite federal agencies using or at least occupying significant amounts of spectrum resources. To make matters more difficult, the FCC's general authority to conduct spectrum license auctions and issues licenses to auction bid winners lapsed in 2023. 

 

The 119th Congress and the Trump Administration should take decisive action to replenish the stock of mid-band spectrum and revive the Commission's auction authority. The first Trump Administration's National Spectrum Strategy stalled out, and the Biden Administration's National Spectrum has been criticized for its painful slowness and overstudying instead of producing results. Whatever has come before now, every available good option for fast-tracking and getting more spectrum into private use should be pursued and a re-stocked spectrum pipeline made into reality. 

 

The House Subcommittee's January 23 spectrum hearing memo is available here. Hopefully, the hearing will lead to prompt concrete action in the 119th Congress on spectrum and other important wireless policy issues. 

President Trump Designates Brendan Carr as New FCC Chairman

As noted in a statement released by the FCC, today, January 20, 2025, President Donald J. Trump signed an order designating Brendan Carr as the new Chairman of the Commission. Congratulations to Chairman Carr, and best wishes for success in steering the agency into new direction for federal communications policy. 

Chairman Carr has many times been a speaker at prior Free State Foundation Annual Conferences, including #FSF16 – FSF's 16th Annual Conference held in Washington, D.C. on March 12, 2024, where then-Commissioner Carr was part of the keynote conversation, "TMT with Mike O'Rielly."

Also, as widely reported on January 16, President Trump intends to nominate Olivia Trusty to fill the vacant position member position on the Commission. Thus, congratulations also are due to Ms. Trusty. Members of the Senate should promptly conduct a committee hearing on her nomination and bring her nomination to a vote.  

USTR Report Identifies Online Copyright Piracy Operations in Foreign Nations

On January 8, the Office of the U.S. Trade Representative (USTR) released its "2024 Review of Notorious Markets for Counterfeiting and Piracy" – also known as its Notorious Markets List (NML). The NLM “highlights prominent and illustrative examples of online and physical markets that reportedly engage in, facilitate, turn a blind eye to, or benefit from substantial piracy or counterfeiting," with a goal "to motivate appropriate action by the private sector and governments to reduce piracy and counterfeiting." 

The NML noted law enforcement actions taken in 2024 by foreign nations, in some instances in partnership with the US Department of Justice, against pirate streaming services, including pirate-enabled Internet Protocol television (IPTV) services that rely on ad-supported "cyberlocker" sites to facilitate the storage and distribution of pirated content. Also, the NML noted that many copyright owners who made filings in the US Trade Representative’s proceeding raised continued concerns about "bulletproof" Internet service providers that facilitate piracy through avowed leniency in permitting users to upload and distribute infringing content, hiding their locations, and refusing to respond to takedown requests from copyright owners. Additionally, the NML listed some websites across the globe that are known to traffic in infringing content as well as physical market locations in foreign nations where physical copies of infringing are trafficked. 

 

The U.S. Constitution's Article I, Section 8 Copyright Clause recognizes that copyrighted property deserves to be secured from online and physical piracy. My February 2024 Perspectives from FSF Scholars, "Congress and the Administration Should Move Against Online Copyright Piracy," points to stepped-up criminal prosecutions against mass online piracy operations as one way of securing copyrighted property. As pointed out in the 2024 NML, copyright piracy is a serious problem and it's one the incoming Trump Administration should make solid efforts to combat. Indeed, as explained in a June 2021 Perspectives from FSF Scholars, "Fighting Online Piracy Will Boost American Economy and Jobs."

Senator Cruz to Intro Resolution to Repeal FCC's Off-Premises Wi-Fi Subsidies

On January 16, Broadband Breakfast reported that Sen. Ted Cruz intends to introduce a joint resolution of disapproval in the Senate to overturn the FCC's July 2024 order granting subsidies for schools and libraries to loan out Wi-Fi hotspots for off-premises use. 

The expected joint resolution of disapproval will be filed under the Congressional Review Act (CRA), which provides a fast-track mechanism for Congress to repeal new agency rules. If passed by 119th Congress, the CRA joint resolution would go to the desk of President-elect Donald Trump for signature. Background on the CRA is provided in FSF Board of Academic Advisors' Member Daniel Lyons' June 2018 Perspectives from FSF Scholars, "The Congressional Review Act and the Toxic Politics of Net Neutrality."

The FCC's July 2024 order for subsidizing off-premises Wi-Fi is a good candidate for repeal under the CRA. As explained in my August 2024 Perspectives from FSF Scholars, "FCC Lacks Authority to Subsidize Wi-Fi Use Away from Schools and Libraries":

Section 254(h) of the Communications Act, on which the Commission relies, authorizes universal service subsidies only to or for "schools," "classrooms," and "libraries." Subsidies for off-premises Wi-Fi use – potentially anywhere in the world – are not included in the statute. The Commission's decision to spend taxpayer dollars without an overall budget cap for off-premises Wi-Fi use is unlawful. 

Thus, a joint resolution of disapproval to repeal the Commission's order is a rule of law measure. 

 

Additionally, Sen. Cruz and others have raised reasonable concerns about the Commission's order causing wasteful taxpayer expenditures and child Internet use in environments without adult supervision. The agency's approved subsidies would come from the E-Rate program, which is funded by universal service surcharges imposed on consumer bills for voice services. 

 

Thanks go to Sen. Cruz for his willingness to take action for government agency accountability, fiscal responsibility, and child safety. 

Rural Broadband Survey Shows Signs of Progress in 2024

On January 2, NTCA – the Rural Broadband Association released its "2024 Broadband/Internet Availability Survey Report." The report highlights progress made in the last year in broadband access and service capabilities offered by rural providers. It's based on August 2024 survey questions from 228 rural broadband providers that have an average of 5,257 residential subscribers and 524 business fixed broadband connections. 

According to the report, 88.6% of 2024 respondents' customers on average could receive a maximum downstream speed greater than or equal to 100 Mbps, up from 84.0% in the 2023 iteration of the report and from 81.9% in the 2022 report. Additionally, "76,4% of customers on average had access to Gigabit downstream speeds, up from about 67% in 2023."

Although the report observes that "[a]n average of 90% of respondents' customers can receive maximum upstream speeds of greater than or equal to 20 Mbps," it's noteworthy that only 12% of customers subscribe to 1 Gbps or better service plans, up from 10.1% in 2022's survey. However, 55.3% subscribe to plans offering at least 100 Mbps but less than 1 Gbps download speeds, up from 48.5% a year before. And 22.6% subscribe to plans providing at least 25 Mbps download speeds but less than 100 Mbps, down from 27.4% a year prior. 

 

Some interest groups and fiber broadband providers have previously urged the FCC to set a 1 Gbps or better download speed benchmark to define broadband. Yet the customer subscription data indicated in the survey report show that the agency's current 100 Mbps benchmark is far more attuned to actual consumer demand than a 1 Gbps aspirational benchmark. It is far better for the Commission to focus on ensuring all Americans have access to 100 Mbps than to direct efforts to boost multi-gigabit speeds for only some Americans while leaving others unserved or underserved. 

 

A particularly important part of the NTCA survey report is the overview of rural broadband providers' responses identifying types of barriers to widespread fiber deployment, including: deployment costs, longer distances to customer premises, regulatory uncertainty, inflationary pressures, permitting delays, railroad crossing permitting, and current regulatory rules. In 2025, the 119th Congress, the new Trump Administration's NTIA, and the FCC should focus on reducing those barriers, including by streamlining permitting processes and ensuring regulatory certainty to promote infrastructure investment.  

PRESS RELEASE: FSF Files Opposition to Petitions to Deny on the Proposed T-Mobile - UScellular Transaction

Below are the first four paragraphs in the Free State Foundation’s Opposition to Petitions to Deny the proposed T-Mobile - UScellular transaction. A PDF of the complete FCC filing, with footnotes, is here.

I.                   Introduction and Summary

This Opposition to Petitions to Deny is filed in the Commission’s review of the transfer control of spectrum licenses pursuant to the proposed acquisition of UScellular operations and assets by T-Mobile US, Inc. Consistent with its past practice, the Free State Foundation does not specifically endorse or oppose the proposed T-Mobile/UScellular merger but examines it in light of basic merger review and competition principles. This Opposition to Petitions to Deny also responds to arguments contained in petitions to deny that are unsupported by evidence or not transaction-specific.

The weight of evidence indicates that the proposed T-Mobile/UScellular merger, if approved, would produce pro-competitive benefits. The merger would benefit UScellular subscribers by giving them access to 5G services with faster speeds and higher data capacity. It also would expand fixed wireless access (FWA) services in UScellular's service regions, especially in rural areas. Moreover, given the existing competition in the traditional wireless marketplace, as well as in the broader broadband marketplace in which T-Mobile and UScellular participate, the transaction does not appear to pose any significant harm to competition or consumers that would outweigh the likely positive benefits.

II.                 The Market’s Competitiveness Should Dictate the Commission’s Analysis

The proposed transaction should be analyzed in light of the competitive conditions of the wireless marketplace. Today’s “mobile telephony/broadband services” product market is characterized by strong competition among three nationwide mobile wireless providers – T-Mobile, AT&T, and Verizon, an emergent fourth nationwide provider in EchoStar, local wireless providers, and regional hybrid cellular-cable mobile virtual network operators (MVNOs) Xfinity Mobile and Spectrum Mobile. Wireless providers are rapidly expanding 5G networks and upgrading their bandwidth capacity and speeds to supply increasing consumer demands. Indeed, the “mobile telephony/broadband services” product market exists within a broader broadband marketplace that is characterized by convergence and cross-platform competition between traditional mobile wireless services and substitutable or potentially substitutable fixed wireless (FWA), cable, fiber, and satellite services.

Ongoing service capability improvements and competition are backed by strong annual private market investment of $30 billion in 2023 and a total of $190 billion since 2018. Given the pro-competitive conditions for wireless services, the Commission’s merger review should incorporate a forward-looking analysis. Static market indicators fail to capture the critical role of future investment and innovation in driving competition and benefitting consumers.

 

BEAD Program Softens Stance on "Alternative" Technologies

In final guidance released on January 2, 2025, the National Telecommunications and Information Administration (NTIA) opened the door, ever so slightly, to Broadband Equity, Access, and Deployment (BEAD) Program projects utilizing unlicensed fixed wireless and low Earth orbit (LEO) satellites. By no means a course correction to a true technology neutral approach – end-to-end fiber proposals continue to be heavily favored without adequate regard for cost – at least providers using these so-called "alternative technologies" are no longer barred outright from participating in the $42.45 billion BEAD Program.

In the Public Notice, NTIA reiterated its position that states "must seek the most robust technology feasible at each location." Prior to this policy change, that meant (a) end-to-end fiber first ("Priority Broadband Projects"), and (b) cable broadband, digital subscriber line (DSL), or fixed wireless – using either licensed spectrum or a combination of licensed and unlicensed spectrum – second ("Reliable Broadband Service"). Projects using unlicensed spectrum only do not fall within the definition of "Reliable Broadband Service." Nor do LEO satellite-based offerings.

With this final guidance, NTIA will allow states to consider grant applications utilizing distribution technologies that meet the speed (100 Mbps downstream and 20 Mbps upstream) and latency (less than or equal to 100 milliseconds) requirements for "Reliable Broadband Service" but (in my view, at least) arbitrarily remain excluded from that category. Specifically, unlicensed fixed wireless and LEO satellite-based offerings now will be treated as quasi-eligible "Alternative Technologies."

However, and as I highlighted in "BEAD Program Technological Neutrality 'Fix' Falls Short," an August 2024 Perspectives from FSF Scholars, states may consider non-fiber "Reliable Broadband Service" technologies only where the cost to deploy fiber exceeds the "Extremely High Cost Per Location Threshold" (EHCPLT), an often unreasonably high bar that disregards the amount of time it will take to deploy fiber versus other technologies.

"Alternative Technologies," meanwhile, become eligible only after states "demonstrate that no ["Reliable Broadband Service"] was deployable for less than the EHCPLT by leveraging multiple strategies to obtain bids for Priority Broadband Projects and other ["Reliable Broadband Service"] projects that fall under the EHCPLT."

In other words, with this change the funding eligibility priority order has been expanded, somewhat, from two categories – end-to-end fiber followed by other "Reliable Broadband Service" – to three, with unlicensed fixed wireless and LEO satellite at the end of the line.

While in theory an improvement over the exclusionary approach originally set forth in the BEAD Program Notice of Funding Opportunity, the final guidance's creation of a third-place "Alternative Technology" category – well short of a full embrace of the concept of technological neutrality – may not have that much of practical impact.

Court Sets Aside FCC's New Title II Order

On January 2, the U.S. Court of Appeals for the Sixth Circuit issued a decision on the merits in MCP No. 185. The three-judge panel's decision set aside the FCC's 2024 Securing and Safeguarding the Open Internet Order. The court wrote:   

Using "the traditional tools of statutory construction," id., we hold that Broadband Internet Service Providers offer only an "information service" under 47 U.S.C. § 153(24), and therefore, the FCC lacks the statutory authority to impose its desired net-neutrality policies through the "telecommunications service" provision of the Communications Act, id. § 153(51).

The Sixth Circuit's decision in MCP No. 185 presents a straightforward reading of the Communications Act. It thus reaches a relatively easy conclusion that broadband Internet access services are best understood as fitting the definition of lightly regulated "information services" under Title I of the Act. This decision is welcome because it means that innovative broadband networks will remain free from unjustifiable public utility regulation that Congress never authorized. 

The Sixth Circuit's opinion is refreshing because it shows how the traditional tools of statutory interpretation can be used to resolve even seemingly technical questions like the regulatory classification of broadband. It's the type of decision that eluded us so long as lower courts were subject to the "Chevron doctrine" and effectively required to rationalize even far-fetched agency interpretations or re-interpretations of supposed ambiguous statutory provisions. 

The Sixth Circuit's commendable decision was made possible by the Supreme Court's overruling of the "Chevron doctrine" in its 2025 Loper Bright Enterprises v. Raimondo decision, which signaled a return to principles of judicial review based on the best reading of statutes rather than elastic deference to regulatory agencies. 

 

The August 2024 stay order issued by a different Sixth Circuit panel in an earlier stage of the litigation presented a persuasive analysis that the FCC's order is contrary to the Supreme Court's Major Questions Doctrine. However, the merits panel's decision that was issued on January 2 rightly takes a first-things-first approach by concluding the FCC's order exceeded the terms of the Communication Act. Recourse to the Major Questions Doctrine is unnecessary to reach that conclusion. 

 

P.S. In December 2023, the Free State Foundation filed public comments with the FCC opposing the agency's proposed Title II reclassification decision. And in January 2024, the Free State Foundation filed reply comments in the Commission's Securing and Safeguarding the Open Internet proceeding. Those comments and reply comments predated the Supreme Court's decision in Loper Bright. For a defense of the Loper Bright decision, see FSF President Randolph May's July 2024 Perspectives from FSF Scholars, "Chevron's Demise Re-Aligns Administrative State With Founders' Vision."