House Passes Bills to Improve Broadband Infrastructure Siting on Federal Property

On December 16, the U.S. House of Representatives, by voice votes, passed the Expediting Federal Broadband Deployment Act (H.R. 3293) and the Federal Broadband Deployment Tracking Act (H.R. 3343). Both bills are now in the Senate. Although there do not appear to be any companion bills in the House, perhaps the unanimous passage in the House will prompt the final passage of both measures by the end of the 118th Congress or early in the 119th Congress.  

My May 30, 2023, blog post noted the unanimous passage of both bills by the House Energy and Commerce Committee. That post summarized H.R. 3293 and H.R. 3343:

The Expediting Federal Broadband Deployment Reviews Act [H.R. 3293] would authorize the NTIA to establish an interagency "strike force" to ensure that each Federal land management agency "prioritizes the review of requests for communications use authorizations." The strike force would conduct periodic calls among those agencies and monitor their progress. And within 270 days after the Act becomes law, the NTIA would be required to submit to Congress a report on "the effectiveness of the strike force in ensuring that Federal land management agencies prioritize reviews of requests for communications use authorizations. 

 

The Federal Broadband Deployment Tracking Act [H.R. 3343] would require the NTIA to submit to Congress a plan for the agency to track requests for communications use authorizations on federal property and provide transparency to applications regarding the status of their applications. 

The FCC has long recognized that slow and cumbersome permitting processes can be a major impediment to market entry for communications services, and broadband Internet service providers frequently identify delays and costs associated with obtaining approvals to construct infrastructure on rights-of-way and government property as an impediment to timely and efficient network deployment. If passed into law, H.R. 3293 and H.R. 3343 could help streamline permit approvals and help prevent avoidable delays for infrastructure construction and major upgrades on federal property. Credit is due to the House for passing the bills. Hopefully, the Senate will give H.R. 3293 and H.R. 3343 prompt consideration.

House Passes NDAA With Small Spectrum Provision, But Pipeline Still Empty

On December 11, the U.S. House of Representatives passed H.R. 5009, the Servicemember Quality of Life Improvement and National Defense Authorization Act for Fiscal Year 2025 ("NDAA"). Among the massive bill's contents, H.R. 5009 authorizes the FCC to conduct a spectrum license auction for the Advanced Wireless Services (AWS-3) bands, with auction proceeds of up to more than $3 billion going to fund the Secure and Trusted Communications Network Reimbursement Program. Also known as "rip-and-replace," the program reimburses small advanced communications service providers for expenses due to the removal, replacement, and disposal of communications equipment provided by Huawei or ZTE. 

Back in 2014, the FCC conducted Auction 97 for AWS-3 licenses, but 197 of those licenses were entangled in administrative processes and litigation. If H.R. 5009 becomes law, it would do good by enabling that valuable spectrum to be put to use. 

 

The AWS-3 spectrum license auction provision in H.R. 5009 appears reasonable and beneficial as far as it goes. But H.R. 5009's AWS-3 provision is a targeted measure involving only a small amount of spectrum. The bill would not address the larger issue of the FCC's lapsed general authority to conduct licensed spectrum auctions and issue licenses. Nor would it address the need for significant amounts of more spectrum to be put into the pipeline for repurposing and auctioning by the Commission to support next-generation commercial wireless services. 

 

In 2025, the 119th Congress needs to make the revival of the FCC's spectrum auction authority a priority and – in coordination with the incoming Trump Administration – hopefully authorize specific bands for repurposing and auction. 

Survey Shows Sharp Increases in Mobile Data, Growth in 5G Home Broadband

On September 10, CTIA released its 2024 Annual Survey. The Survey Highlights report is available online. It shows the strong growth in mobile wireless connections, data usage, cell sites, and 5G Home connections during the year 2023.  

CTIA reported that wireless data traffic in the U.S. grew, as U.S. wireless networks supported 100 trillion MB of traffic last year, up from the nearly 74 trillion MB from the year before. Additionally, nearly 40% of wireless devices were 5G devices, for 216 million total active 5G devices in 2023, and the 558 million total wireless connections were up from 523 million from the year prior. Also, the total number of cell sites in the U.S. grew to 432,469 – up 24% from 2018. This continued growth was supported by annual wireless investment totaling $30 billion in 2023. Regarding 5G Home Broadband – or fixed wireless access (FWA) services – CTIA reported: "Over the past two years, 95% of net new broadband subscribers chose 5G home service—and importantly, 1 out of 5 net 5G home adds were entirely new home broadband subscribers." More stats are contained in the 2024 Annual Survey Highlights.

 

My July 30, 2023, blog post spotlighted CTIA's 2023 Annual Survey Highlights.

 

To fully realize the benefits of 5G connections, more spectrum will need to be available, especially licensed spectrum for commercial wireless uses. In January 2024, Free State Foundation President Randolph May published "Communications Law and Policy Priorities for 2024." One of those priorities is to "Reopen the Spectrum Pipeline and Act to Fill It." As FSF President May explained in a Media Advisory from March of this year, one constructive proposal for doing that is the Spectrum Pipeline Act of 2024 (S.3909).

 

Also, legislation for streamlining and speeding up permit processes for wireless infrastructure construction would help foster continued growth in wireless services and improve as well as increase connections for Americans. My blog post from August 7 identified one measure worth considering, the Accelerating Broadband Permits Act (S.4281), which is intended to help ensure the timely processing of permits for building new wireless infrastructure on federal lands. 

Congress Should Fully Protect Valuable Copyrighted Music Recordings

On August 29, the Recording Industry Association of America (RIAA) released its "Mid-Year 2024 RIAA Revenue Statistics" report. RIAA's report finds a 4% increase in U.S. recorded music market retail revenues for a total of $8.7 billion during the first half of 2024 compared to $8.4 billion during the first half of the prior year. Digital streaming service subscriptions totaled about 99 million during the first half of this year, and those subscriptions account for almost two-thirds of total revenues. Additionally, the reported $994 million in physical sales during the first half of 2024 was up from $822 million during the first half of 2023, due primarily to a 17% increase in revenues from vinyl record sales. See RIAA's report for more details.

As music recording artists, producers, and the rest of the recorded music industry pursue creative and economic opportunities in 2024, there remains work for the 118th Congress to do to help ensure that valuable copyrighted sound recordings receive full protection under the law. One important thing Congress should do is advance the American Music Fairness Act – S.253 and H.R. 791. 

Under current copyright law, terrestrial AM/FM radio stations have a special exemption from paying royalties to owners of copyrighted sound recordings when those stations play the music on the air. Consequently, foreign terrestrial AM/FM radio stations do not have to pay royalties for playing copyrighted music owned by Americans so long as domestic terrestrial AM/FM radio stations in the U.S. have no obligation to pay such royalties. In other words, the recorded music industry does not generate any direct revenues from radio broadcasts of copyrighted sound recordings. 

But S.253 and H.R. 791 would require AM/FM stations to pay royalties to owners of sound recordings for the use of their intellectual property just like online streaming services do. Passage of the Act would enable U.S. copyright owners to receive royalties from foreign stations. Notably, the Act provides a low flat royalty rate for small commercial and non-profit stations. 

 

For further background on the American Music Fairness Act, see my February 2022 Perspectives from FSF Scholars, "American Music Fairness Act Would Secure Copyrights in Sound Recordings." And for a brief overview of the hearing on H.R. 7910 held by the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet during the summer, see my July 5 blog post "American Copyright Owners Deserve Royalties When Radio Stations Use Their Property."

After Court Ruling on USF's Unconstitutionality, Congress Should Pass Reforms

On August 26, the U.S. Court of Appeals for the Fifth Circuit issued an order staying the issue of a mandate for its July 24 decision holding that the Universal Service Fund’s (USF) contribution mechanism – or "USF tax" – violated the U.S. Constitution's Article I Legislative Vesting Clause. The stay order anticipates that the FCC will be filing a petition for certiorari with the Supreme Court and that the stay will then be extended until the court final disposition.

The lengthy Fifth Circuit en banc decision in Consumers' Research v. FCC, as well as the concurring and dissenting opinions that were issued, are summarized in my August 5, 2024 Perspectives from FSF Scholars, "Fifth Circuit Rules USF Contribution Scheme Violates Legislative Vesting Clause."

 

My August 9 Perspectives from FSF Scholars, "Court Ruling on USF's Unconstitutionality Should Spur Reform in Congress" explained that Congress should not wait for the Supreme Court to act. As I wrote: 

Congress should act promptly to make the USF program fiscally sustainable and constitutionally sound for the broadband era. It should fund the USF via direct appropriations and intelligibly define broadband as a service eligible for support. If needed, Congress should consider requiring major online companies to make USF contributions under principles that limit subsidy amounts. Along with stronger curbs on waste and abuse, such reforms would preserve universal service, eliminate or at least reduce significantly the USF tax on consumers – which now stands at 34.4% – and enable future downsizing of the USF into a primarily voucher-like program supporting low-income consumers.

The Fifth Circuit's stay order avoids any sudden disruption to the USF program. It also provides window of time for Congress to exercise its authority and finally pass reforms that will modernize the USF program. Congress should make the program more efficient in supporting broadband access for those who are most deserving of help and ensure its future financial sustainability.   

Senate Bill Would Ensure Timely Broadband Infrastructure Builds on Federal Land

On July 29, Senators John Thune, Ben Ray Luján, and John Barrasso introduced the Accelerating Broadband Permits Act. The purpose of the bill is to improve executive agencies’ processing of permit applications for the construction of communications facility installations on federal land. Under the MOBILE NOW Act of 2018, executive agencies with supervision over federal lands have 270 days to make decisions on applications for permits to build towers, antennas, cables, or any other infrastructure associated with wireless or wireline services. An April 2024 Government Accountability Office Report found problems with agencies processing those applications within the deadline. The Accelerating Broadband Permits Act is intended to address those problems and help identify instances where the agencies are likely to fail to meet the deadline and ensure timely processing.

The FCC has long recognized that local permitting processes are often a major impediment to timely broadband access. The Accelerating Broadband Permits Act would help alleviate that impediment on federal lands. The Act appears to be worthwhile legislation that could help accelerate network infrastructure deployment to underserved and unserved Americans. Much land in western states is held in trust or owned by the federal government, and federal agencies must fulfill the responsibilities that come with being a trustee or property owner, not to mention comply with the MOBILE NOW Act. 

 

Senators Thune, Luján, and Barrasso deserve credit for bringing forward this bill. Several billion dollars in subsidies are going to be distributed by NTIA to the states under the Broadband Equity, Access, and Deployment (BEAD) Program to fund new buildouts. The effectiveness of BEAD Program subsidy dollars will depend, to a significant extent, on having workable federal siting policies in place. The 118th Congress should give the Accelerating Broadband Permits Act timely consideration.  

Joint Resolution in Senate Would Repeal FCC's New Title II Order

On July 23, Senator Marsha Blackburn introduced S.J.Res. 103, a Congressional Review Act (CRA) joint resolution of disapproval to overturn the FCC's Safeguarding and Securing the Open Internet Order. Senators Ted Cruz and John Thune are co-sponsors. S.J.Res. 103 was referred to the Senate Commerce, Science, and Transportation Committee. By a 3-2 vote in April of this year, the Commission reclassified broadband Internet access services as "telecommunications services" under Title II of the Communications Act, subjecting advanced broadband networks to public utility regulation.

Earlier this year – as described in a May 28 blog post – Rep. Bob Latta introduced in the 118th Congress H.J.Res. 153, a similar CRA joint resolution of disapproval.

 

Under the CRA, there is a fast-track process for Congress to vote on the repeal of new agency regulations. Helpful background information on the CRA, in the context of broadband regulatory policy, is contained 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."

 

Many Perspectives from FSF Scholars papers have been published critiquing the new Title II order's imposition of public utility restrictions on broadband Internet networks. These include my May 21 Perspectives, "The FCC's New Title II Order Allows Harmful Rate Regulation" and my April 22 Perspectives, "Public Safety Rebrand Won't Save the FCC's Internet Regulation Plan From Unlawfulness." The most serious legal defect in the Commission's new Title II order comes under fire in my April 12 Perspectives, "The FCC's Internet Regulation Plan Fails the Major Questions Doctrine." 

American Copyright Owners Deserve Royalties When Radio Stations Use Their Property

 On June 26, the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a Hearing titled "Radio, Music, and Copyrights: 100 Years of Inequity for Recording Artists." The hearing featured testimony from witnesses on two competing legislative measures introduced in the 118th Congress: the American Music Fairness Act of 2023 and the Supporting the Local Radio Freedom Act.

The American Music Fairness Act – H.R. 791 and S.253 – would finally recognize a public performance right in terrestrial AM/FM radio broadcasts of copyrighted music recordings. If passed into law, the Act would require for-profit AM/FM stations to pay royalties to owners of sound recordings for the use of their intellectual property just like online streaming services do. Smaller commercial AM/FM stations as well as non-profit stations that have less financial resources would qualify for a significantly reduced annual royalty payment of $500, $100, or $10. 

Testimony by country music star Randy Travis and his wife Mary Travis challenge the position of many radio stations that American recording artists don't deserve a public performance right for their sound recordings for radio airplay because radio broadcasts of their music promote sales of physical CDs, merchandise, and tickets. Indeed, in the age of digital streaming services, revenues from CD sales are only a fraction of what they were many years ago, and many recording artists struggle to make a living and pay their crew and other co-workers. Commercial terrestrial AM/FM radio stations profit from playing copyrighted sound recordings. Internet streaming and satellite radio services pay public performance royalties for broadcasting copyrighted sound recordings, and it makes no sense to continue giving terrestrial AM/FM radio services. 

 

At the hearing, SoundExchange CEO Michael Huppe testified to the important point about how the American Music Fairness Act would benefit American recording artists and copyright owners by unlocking significant royalties from foreign radio stations. As explained in my March 27 blog post, "Music Revenue Report Should Spur Congress to Secure Copyrights Fully":

Under existing international agreements, foreign terrestrial AM/FM radio stations do not have to pay royalties for playing copyrighted music owned by Americans so long as domestic terrestrial AM/FM radio stations in the U.S. have no obligation to pay such royalties. Passing the American Music Fairness Act would open up those foreign royalty streams to U.S. copyright owners. Importantly, the legislation is sensitive to the limited financial resources of smaller commercial and non-profit stations by treating them to a low, flat royalty rate. 

The case for the American Music Fairness Act is presented in further detail in my February 2022 Perspectives from FSF Scholars, "American Music Fairness Act Would Secure Copyrights in Sound Recordings," and in my August 2021 Perspectives from FSF Scholars, "Congress Should Secure Full Protections for Music Sound Recordings." 

 

Testimony from National Association of Broadcasters President and CEO Curtis LeGeyt endorsed the Supporting the Local Radio Freedom Act – H.ConRes.13 and Sen.Con.Res.5  – a resolution stating that Congress should not impose "any new performance fee, tax, royalty, or other charge" on a local radio station broadcasting sound recordings over the air. But Mr. LeGeyt's testimony, like the Supporting the Local Radio Freedom Act, wrongly lumps payment of royalties by a radio station for commercially exploiting someone else's copyrighted property in with fees and taxes paid to the government. NAB's position isn't new, and it doesn't overcome the just claims of the owners of copyrighted property. I addressed the critical distinction between royalties and taxes in my September 2022 blog post, "In Debate Over Radio Royalties, Congress Should Favor Property Rights."

 

The American Music Fairness Act deserves to be advanced by Congress because it is a sound policy rooted in constitutionally recognized property rights principles. The other legislative measure is not. 

Joint Resolution in House Would Repeal FCC's New Title II Order

On May 23, Rep. Bob Latta announced that he had introduced a Congressional Review Act (CRA) joint resolution of disapproval to overturn the FCC's Safeguarding and Securing the Open Internet Order. By a 3-2 vote, the Commission reclassified broadband Internet access services as "telecommunications services" under Title II of the Communications Act, subjecting advanced broadband networks to public utility regulation. 

Rep. Latta deserves credit for introducing this CRA joint resolution. The House of Representatives should give the legislation due consideration. 

 

The CRA provides a fast-track process for Congress to repeal new agency regulations. For helpful background on the CRA in the context of broadband regulatory policy, see 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 Free State Foundation filed public comments and reply comments with the FCC in opposition to public utility regulation. Several Perspectives from FSF Scholars have been published critiquing the imposition of public utility restrictions on broadband Internet networks," including my May 21 Perspectives, "The FCC's New Title II Order Allows Harmful Rate Regulation."

World IP Day 2024: Time to Step Things Up Against Online Copyright Piracy

April 26 is World Intellectual Property Day. Copyrights are more important to the U.S. economy today than at any previous time in history. The American Founders had the wisdom and foresight to put copyright protections in the 1787 U.S. Constitution. But securing Americans' rights in creative works such as movies, TV shows, and music from mass online piracy is an ongoing responsibility of Congress. In 2024, Congress should consider establishing a legal process for copyright owners to obtain court orders requiring broadband providers to block access to third-party websites whose entire or overwhelming purpose is to unlawfully traffick copyrighted content. 

According to a January 30 report by the U.S. Trade Representative, commercial-scale copyright piracy causes "significant financial losses for U.S. right[s] holders and legitimate businesses" and it "undermine[s] critical U.S. comparative advantages in innovation and creativity to the detriment of American workers." The report cited a June 2019 study by the Global Intellectual Property Center that found online piracy costs the U.S. economy $29.2 billion in lost revenue each year. The study also found that illegal streaming and file-sharing operations cost about 250,000 American jobs yearly. 

As the Trade Representative's report explained, there is a worldwide "complex ecosystem" for online piracy.Unauthorized Internet Protocol television (IPTV) operators stream vast libraries of copyrighted content, including live sports and premium channels, at below-market prices. "Cyberlocker" sites "act as the hosting and content storage sites for the world's most popular piracy streaming and linking websites." Many cyberlocker sites "offer a tiered revenue sharing system to reward the uploaders of their most popular content," including copyrighted content that has not yet been commercially released to the public. Online infringements also are facilitated by foreign "bulletproof" Internet service providers (ISPs) that "often explicitly advertise leniency in allowing their customers to upload and distribute infringing content" and refuse to comply with U.S. law.

 

In a February 2024 Perspectives from FSF Scholars, "Congress and the Administration Should Move Against Online Copyright Piracy," I identified three ways to better protect Americans' copyrighted works from mass online piracy: (1) confirmation of an Intellectual Property Enforcement Coordinator (IPEC) to engage foreign nations on copyright piracy: (2) stepped-up prosecutorial efforts against commercial streaming piracy operations; and (3) establishment of a "notice-and-stay-down" requirement for major online platforms to prevent serial re-posts of infringing content on their websites as a condition for obtaining immunity for infringements. 

 

But here is a fourth way to combat online piracy and improve protections for copyrighted content: establishment of a legal process for judicial site-blocking of third-party websites that are dedicated entirely or overwhelmingly to unlawful online copyright piracy.

 

In an April 9 speech, Motion Picture Association (MPA) Chairman and CEO Charles Rivkin called digital piracy "a central threat to the security of workers, audience, and the economy at large." His estimate of the damages from such piracy is stunning: "In the U.S. alone, it steals hundreds of thousands of jobs from workers and tens of billions of dollars from our economy, including more than one billion in theatrical ticket sales."

 

Mr. Rivkin pledged that his organization is going to work with Congress on judicial site-blocking legislation that "focuses only on sites featuring stolen materials" and that is "within the bounds of due process, requiring detailed evidence establishing a target's illegal activities and allowing alleged perpetrators to appear in a court of law." On behalf of MPA, he also pledged an "unflinching commitment to the First Amendment."

 

Indeed, due process and free speech are essential starting points for any judicial site-blocking legislation worth considering. Such a bill must be tightly focused on websites that are entirely or overwhelmingly dedicated to trafficking commercial copyrighted content, not viewpoints expressed on such sites. It must authorize only a private civil cause of action and not be a potential tool for government censorship of lawful speech. Additionally, a worthy judicial site-blocking bill would avoid imposing any undue burdens or costs on compliant broadband ISPs. Also, there must be a legislative process that provides transparency on the content of bills and amendments, committee hearings, and opportunities for public input.

 

On World IP Day, Congress should remember the billions in economic damages suffered by American copyright owners each year because of the global online piracy ecosystem. In the months ahead, Congress should develop and consider a constitutionally sound bill authorizing judicial orders to block access to third-party sites that exist for the purpose of engaging in unlawful mass online infringements. 

Joint Resolution in Senate Would Repeal FCC's Digital Discrimination Rule

On March 14, Sen. Ted Cruz introduced S.J.Res. 64, Congressional Review Act (CRA) joint resolution of disapproval to overturn the FCC's digital discrimination regulation. By a 3-2 vote, the Commission adopted a November 2023 Order to implement the Infrastructure Investment and Jobs Act's directive that the Commission facilitate equal broadband access insofar as it is technically and economically feasible.

The Infrastructure Act requires the Commission to adopt rules prohibiting intentional digital discrimination of access against individuals of protected classes such as race, religion, ethnicity, and income level. However, the Commission exceeded its statutory mandate by imposing unintentional disparate impact liability on broadband Internet service providers (ISPs) and subjecting nearly every facet of broadband network operations and business to agency scrutiny without clear safe harbors. 

 

A similar CRA joint resolution of disapproval – H.Res.107 – was introduced by Reps. Earl L. "Buddy" Carter and Andrew Clyde back on January 30 of this year. That resolution was the subject of a February 6 blog post. If passed by Congress and signed into law, the CRA would result in the repeal of the FCC's digital discrimination rule. As observed in a February 14 blog post, the FCC's November 2023 Order is also the subject of consolidated litigation that is pending in the U.S. Court of Appeals for the Eighth Circuit. 

 

The FCC's digital discrimination proceeding is ongoing. In its November 2023 further notice of proposed rulemaking, the Commission proposed additional "affirmative obligations" for reporting and internal compliance program requirements. The Commission also has proposed the creation of a Civil Rights Office with a roving mandate to police digital discrimination. But as Free State Foundation President Randolph May and I explained in our March 4, 2024, public comments, the record shows no evidence that digital discrimination is taking place. The agency's proposals, if adopted, would not confer any real benefit on Americans of any class but would instead amount to an unjustified further expansion of agency power over the private marketplace. 

 

Notably, the FCC's digital discrimination rule was a subject of discussion and debate at the Free State Foundation's Sixteenth Annual Policy Conference – #FSFConf16 – held on March 12, 2024. For more, check out the video of the hot topics communications law and policy panel, as well as the video of the inaugural TMR vidcast hosted by former FCC Commissioner Michael O'Rielly: 

Joint Resolution in Congress Would Repeal FCC's Digital Discrimination Rule

On January 30, Representatives Earl L. "Buddy" Carter and Andrew Clyde introduced a Congressional Review Act (CRA) joint resolution of disapproval to overturn the FCC's "digital discrimination" regulation. The Commission's November 15, 2023 Order adopted the rule on a 3-2 vote. The joint resolution is worthy of support because the Commission's imposition of unintentional disparate impact liability on broadband Internet service providers (ISPs) is unlawful and bad policy.

The CRA provides a fast-track mechanism for Congress to repeal new agency regulations that it is opposed to. But a CRA joint resolution passed by Congress is still subject to the signature or veto of the President. For further background on the CRA, see 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."

 

As explained in further detail in the Free State Foundation’s February 2023 public comments and March 2023 and April 2023 reply comments filed in the FCC's proceeding on digital discrimination, Section 60506 of the Infrastructure Investment and Jobs Act authorizes the Commission to facilitate equal access to broadband insofar as it is technically and economically feasible. And the Act directs the Commission to adopt rules prohibiting intentional digital discrimination of access against individuals of protected classes such as race, religion, ethnicity, and income level. But the Act does not contain language authorizing liability based on unintentional disparate impact. 

 

Moreover, there is zero evidence of digital discrimination of access taking place and it's contrary to the financial interests of ISPs to deny would-be subscribers access to engage in for. The Commission's rule will not expand or speed up deployment to more Americans. And if allowed to stand, the agency's rule will subject nearly every broadband ISP business and network decision to scrutiny under the agency's rule. This will most likely deter investment in the infrastructure buildout to harder-to-reach areas. 

 

In short, the FCC's digital discrimination rule is well suited for the CRA joint resolution of disapproval. The House should pass it. 

Senate Bill Would Require USF Contributions From Major Edge Providers and ISPs

On November 16, the Lowering Broadband Costs for Consumers Act of 2023 was introduced in the U.S. Senate. This Universal Service Fund (USF) reform bill would expand the contribution base to include mega-popular edge providers who generate substantial yearly U.S. revenues. The Act comes with bipartisan sponsorship by Senators Markwayne Mullin, Mark Kelly, and Mike Crapo. As of this blog post, the Act has yet to receive a bill number, but the text of the legislation is available on Sen. Mullin's website, along with a press release. The Senate should give this bill due consideration.

 

The Lowering Broadband Costs for Consumers Act provides that, within 18 months of the bill being passed into law by Congress, the FCC "shall complete a rulemaking to reform the Universal Service Fund by expanding the contribution base so that broadband providers and edge providers… contribute on an equitable and non-discriminatory basis" to "specific, predictable, and sufficient mechanisms established by the Commission to preserve and advance universal service." Importantly, the Act would require contributions only from the largest broadband providers and edge providers, as the bill exempts from contribution requirements broadband providers and edge providers that either: (1) transmit less than 3% of estimated broadband data transmitted in the U.S. during the prior year (as determined by the Commission) and earn less than $5 billion dollars in U.S. revenue during the prior year; or (2) would have a "de minimis" level of contribution to universal service under the Commission's mechanisms. 

 

The Act's definition of an "edge provider" includes digital ad services, search engines, social media platforms, streaming services, app stores, cloud computing services, over-the-top or other text-messaging services, videoconferencing services, video game services, and e-commerce platforms. 

 

The sponsors of the Lowering Broadband Costs for Consumers Act should be saluted for introducing legislation that would tackle the serious problem of the USF contribution scheme's fiscal unsustainability. It makes all the sense in the world to require at least some amount of USF contributions from the service providers who are responsible for the overwhelming majority of the Internet's traffic and who financially benefit the most from internet connectivity. Free State Foundation President Randolph May described the USF system's precarious financial situation and the urgent need for contribution reform in our August 2023 public comments filed with the Universal Service Fund Working Group that is led by Sens. Ben Ray Luján and John Thune. 

For other legislation introduced in the 118th Congress that would address the USF contribution scheme, see my blog post from March of this year, titled "Senators Reintroduce Bill to Require FCC Report on USF Contribution Reforms." Therein I describe the FAIR Contributions Act, which would require the Commission to conduct a feasibility study on collecting USF contributions from Internet edge providers.  

Senate Bill Would Improve Permitting for Broadband Projects on Federal Land

On September 21, Senators John Barrasso and Kyrsten Sinema introduced the Closing Long Overdue Streamlining Encumbrances to Help Expeditiously Generate Approved Permits (CLOSE THE GAP) Act. The purpose of the bill is to make permitting processing faster and more efficient for broadband infrastructure projects on federal lands.

Among other things, the CLOSE THE GAP Act would require federal land management agencies – namely, National Park Service, Bureau of Land Management, Bureau of Reclamation, U.S. Fish and Wildlife Service, Bureau of Indian Affairs, and Forest Service  – to adopt new rules for streamlining the process for considering and approving broadband project applications on federal lands. Within a year of the Act becoming law, the Secretary of the Interior would be required to adopt regulations that, the maximum practical extent, require federal land management agency permitting processes be "uniform and standardized." Also, the regulations must require that applications to locate or modify broadband facilities must be granted on a "competitively neutral, technologically neutral, and nondiscriminatory basis." And agency cost recovery fees for locating or modifying facilities must be cost-based. 

 

Additionally, the CLOSE THE GAP Act would make it easier to monitor the status of broadband infrastructure projects by making those projects trackable under the Permitting Dashboard that was established pursuant to the Fixing America's Surface Transportation (FAST) Act of 2015. The Permitting Dashboard is "an online tool for Federal agencies, project developers, and interested members of the public to track" federal environmental reviews and authorization processes for "large or complex infrastructure projects." Additionally, the bill would establish online portals for submissions of Standard Form-299 Applications (SF-299s), which are standard forms required by federal land management agencies in applying for access to rights-of-way, leases, licenses, or permits involving federal lands. 

 

Furthermore, the CLOSE THE GAP Act includes exemptions from the National Environmental Policy Act for broadband infrastructure on federal lands that previously received permit approval as well as exemptions from NEPA and the NHPA for collocations of radio towers on existing towers as well as for removal or replacement of radios on existing towers. These exemptions and others included in the bill would reduce likely unnecessary permitting expenses and delays in building out broadband infrastructure.

 

The permitting process reforms included in the CLOSE THE GAP Act are particularly important in western states like Wyoming and Arizona, where large geographic areas are designated as federal lands. In the past few years, Congress has dedicated over $100 billion to expanding access to broadband services, including about $65 billion in the Infrastructure Investment and Jobs Act of 2021. In order to help ensure that those substantial sums are spent timely and efficiently to bring broadband access to unserved and underserved areas, improved permitting processes should be a priority of Congress. Senators Barrasso and Sinema are to be applauded for introducing the bill. The Senate should give the legislation timely consideration. 

 

The House of Representatives has pending legislation that would streamline permitting processes for broadband deployments on federal lands. For more, see my FSF Blog post from April 23 of this year, "Subcommittee Looks at Legislation Promoting Broadband Infrastructure Buildout," and my May 2023 post, "House Committee Passes Reforms for Broadband Infrastructure Siting on Federal Property." 

 

(Note: A Senate bill number for the CLOSE THE GAP Act has yet been provided. This post will be updated with the number and link to the filed bill when it is made available.) 

SALE Act Would Put Valuable 2.5 GHz Band Spectrum Licenses into Use for 5G

On September 14, Sen. John Kennedy introduced the 5G Spectrum Authority Licensing Enforcement (SALE) Act -- S. 2787. The short and simple bill, if passed, would grant the FCC a 90-day window of authority to process and grant licenses that were won through the Commission's competitive bidding auction for the 2.5 GHz spectrum band.

In March of this year, the FCC's statutory authority to conduct competitive bidding spectrum license auctions lapsed. But what about the Commission's authority to issue licenses that were already won at previously completed auctions? The Commission concluded its 2.5 GHz band auction back in August 2022. It was announced that over 7,800 county-sized licenses were won by 63 bidders. T-Mobile won over 7,100 such licenses and by late September 2022, T-Mobile submitted long-form applications and paid $304 million to the Commission for those licenses. Chairwomen Jessica Rosenworcel reportedly has taken the position that the agency lacks even the authority to issue licenses won – and paid for – in previously completed auctions. As explained in my July 2023 blog post, "FCC's Unreasonable Delay in Withholding 2.5 GHz Band Spectrum Licenses," there is strong basis for disagreement with Chairwoman Rosenworcel's apparent legal conclusion.

The SALE Act would break the impasse and prompt the FCC to finally issue the 2.5 GHz band spectrum licenses to the rightful recipients. In his press release announcing the introduction of the SALE Act, Sen. Kennedy rightly acknowledges that wireless communications are important to his home state of Louisiana, and particularly to rural areas. The same holds true for the rest of the states and their rural areas. Mid-band spectrum is critically important for 5G wireless services. And valuable spectrum licenses that were fairly won at auction and paid for ought to finally be delivered to the auction winners and put into commercial use to benefit Americans.  Sen. Kennedy deserves credit for introducing the SALE Act. Hopefully, the Senate will quickly take up and pass the bill and the House of Representatives will follow suit. 

 

For more on this topic, see Senior Fellow Andrew Long's blog post July 2023 blog post, "Congress Should Reinstate the FCC's Spectrum Auction Authority," as well as his August 2023 blog post, "Commissioner Carr to Congress: Renew FCC's Auction Authority."

 

(Note: This post has been updated to include the Senate bill number and link for the SALE Act, S. 2787.) 

Research on 5G and Radar in Lower 3 GHz Spectrum Band Supports Commercial Use

Today, August 15, CTIA released a fascinating short paper that makes the case for authorizing commercial use of the 3.3-3.45 GHz band at full power and on an exclusive licensed basis. The paper, "Successful Military Radar and 5G Coexistence in the Lower 3 GHz Band: Evidence from Around the World," summarizes research from GSMA, CCS Insight, and DLA Piper regarding the co-existence of 5G services with U.S. military radars in the lower 3 GHz band in foreign countries such as Germany, Japan, Mexico, South Korea, and Taiwan.

According to CTIA's paper:

This real-world evidence demonstrates how proven coordination methods are already facilitating simultaneous use of the band by 5G and military radars. Segmenting the band at 3.3 GHz with commercial wireless operating above and military radars tuning below can facilitate near-term coexistence. Coordination techniques—such as retuning, compression, and frequency coordination—provide assurance that 5G networks can be deployed in the U.S. at full power in lower 3 GHz spectrum while maintaining the ability to meet critical government missions that depend on radar systems.

The U.S. needs more mid-band spectrum for commercial use, particularly on an exclusive licensed basis, and to help meet those needs, Congress and the NTIA should prioritize the repurposing spectrum in the lower 3 GHz band. For more on this, see my February 2021 Perspectives from FSF Scholars, "Fast Action on the Lower 3 GHz Band Will Secure America's 5G Future." The coexistence of 5G and U.S. military radar operations in foreign countries identified in CTIA's paper persuasively favors repurposing the 3.3-3.45 GHz band for private commercial use. If 5G and military radar coexist in other countries, they can and should be made to coexist in the U.S. 

 

Also, in order to put lower 3 GHz band spectrum into the hands of private commercial providers of 5G services, the FCC's authority to conduct spectrum license auctions needs to be restored. The House of Representatives should promptly pass H.R. 3565 – the Spectrum Auction Reauthorization Act of 2023. If it becomes law, H.R. 3565 would restore that authority to the Commission.