James Byrnes, Meet Brendan Carr!

 You may not know the name James Byrnes! But, for me, he comes to mind. Mr. Byrnes once declared: The nearest approach to immortality on Earth is a government bureau." 

James Byrnes served as a governor of South Carolina, United States Senator, a Supreme Court Justice, and U.S. Secretary of State, aside from other government positions. Yes, you read that right!

 

So, by virtue of his experience, Mr. Byrnes knew a thing or two about the difficulty of shrinking the size of government.

 

Admittedly FCC Chairman Brendan Carr hasn't served in as many high-level government positions as James Byrnes. No one else has. But Carr has served in key FCC positions long enough – as General Counsel, Commissioner, and now Chairman – to understand that there are plenty of legacy regulations remaining in the FCC's rule book that are no longer necessary. Not only are they no longer necessary, but many of them, considering the dramatically changed telecommunications and media environment since they were adopted, impose costs and burdens that affirmatively harm consumers and competition.

 

I have criticized a few actions taken by Chairman Carr, for example, the use of the agency's transaction review process to impose extraneous conditions not unique to the transaction in approving the Skydance – Paramount CBS transaction, and the imposition of what appears to be an unwarranted forfeiture on Telnyx without fair notice of what standard it was expected to meet.

                                                                 

                                                                          

But, on the whole, I applaud the way that Chairman Carr is forging ahead in the DELETE, DELETE, DELETEproceeding and others to remove bunches of regulations that should no longer exist and, frankly, should have been eliminated years ago. For example, yesterday the Commission proposed to eliminate nearly 100 outdated, no longer necessary, broadcast rules using the Direct Final Rule process. The public will have 10 days after Federal Register publication to offer comments regarding any of the proposed rules. Absent the submission of a "significant adversecomment," the proposed elimination of the rule will occur. If the Commission determines that a "significant adverse comment" has been submitted, then that particular rule will go through the normal notice and comment process.

 

In a 1995 Recommendation, The Administrative Conference of the United States (ACUS), of which I have served as a Public Member and now Senior Fellow, suggested that agencies use the Direct Final Rule process to more quickly eliminate unnecessary regulations "in all cases where the ‘unnecessary’ prong of the good cause exemption is available…." On many occasions since then, to little or no avail, I have urged the FCC to consider employing the process.

 

So, I heartily commend Brendan Carr for taking the initiative to do so now. There will still be an opportunity for public comment when the Direct Final Rule process is employed, and, if experience proves there is a need, there can be adjustments to ensure that non-frivolous substantive objections are properly considered.

 

Shortly before becoming FCC Chairman, Ajit Pai, speaking at a Free State Foundation event, declared: “We need to fire up the weed whacker and remove those rules that are holding back investment, innovation and job creation.”Considering all the obstacles, including the time and energy expended to reverse the then-existing mandate regulating Internet service providers as public utilities, Chairman Pai made a good start. But now Chairman Carr has truly fired up the metaphorical "weed whacker" in a way that looks to make meaningful progress in the cause of eliminating costly, burdensome, unnecessary regulations.

 

He may not have eliminated a government bureau. But I suspect that James Byrnes would give Brendan Carr credit for what he's doing on the deregulation front.

Former FCC Chairman Ajit Pai a Keynoter at FSF's 17th Annual Conference March 25!

Registration Now Open!

 

 Keynote Speaker Announced!

 

 

Former Chairman, Federal Communications Commission, 

and Partner, Searchlight Capital

 

Previously Announced Keynoters

 

Senator Ted Cruz

 

Jonathan Turley

 

Nathan Simington

 

WHAT: FSF's Seventeenth Annual Policy Conference

 

WHERE: National Press Club, Washington, DC

 

WHEN: Tuesday, March 25, 2025 -- 8:30 a.m. - 2:30 p.m.

 

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.

 

FOR ADDITIONAL INFORMATION, CLICK HERE.

 

REGISTER HERE!

 

#FSFConf17

TMT With Mike O’Rielly – Ep 3: Private Equity & Federal Broadband Funding

Episode 3 of the videocast TMT With Mike O'Rielly was released on June 4. It features a discussion between former FCC Commissioner O'Rielly and former FCC Ajit Pai. Be sure to check out their discussion of the private capital investment in broadband, the impact of rate regulation on investment, and broadband subsidies under the RDOF and BEAD Programs. 

Ex-Commissioners Unite, Urge Second Circuit to Affirm Lower Court Decision Enjoining Enforcement of NY Broadband Price Control Law

Four recent members of the Federal Communications Commission, representing both sides of the political aisle, have filed with the Second Circuit Court of Appeals an Amicus Curiae brief in response to the state Attorney General's appeal of the lower court decision in New York State Telecommunications Association v. James.

In their submission, the ex-Commissioners urge the Second Circuit to affirm the U.S. District Court for the Eastern District of New York's conclusion that a New York state law prescribing the prices that broadband providers may charge low-income households constitutes an impermissible attempt to regulate interstate communications rates.

The Affordable Broadband Act (ABA) is a New York state statute that was passed in early 2021. It requires providers of high-speed Internet access operating in New York to make available to eligible low-income households service at specific speeds and, critically, prices: 25 megabits per second (Mbps) downstream for $15 per month and 200 Mbps downstream for $20 per month. It also mandates that broadband providers "make all commercially reasonable efforts to promote and advertise the availability of" these plans.

As Free State Foundation Director of Policy Studies and Senior Fellow Seth L. Cooper noted in "Court Halts New York Price Controls on Broadband Internet Services: California's Net Neutrality Law Should Suffer Similar Fate," a June 2021 Perspectives from FSF Scholars, the U.S. District Court for the Eastern District of New York earlier that month appropriately enjoined the state of New York from enforcing the ABA.

Specifically, the court held (1) that the ABA regulates rates; (2) that "rate regulation is a form of common carrier treatment"; and (3) that because the FCC has classified broadband as an "information service" rather than a "telecommunications service" (that is, a common carrier offering), the ABA "conflicts with the implied preemptive effort of both the FCC's 2018 [Restoring Internet Freedom Order] and the Communications Act."

For a detailed discussion of the conflict preemption issues raised by the ABA, please see Mr. Cooper's January 2022 Perspectives, "State-Level Price Controls on Broadband Conflict With Federal Policy: Court Should Affirm the Preemptive Force of the FCC's 2018 Order."

In their friend-of-the-court brief, Former FCC Chairman and Commissioner Ajit Pai, former Acting Chairwoman and Commissioner Mignon Clyburn, and Former Commissioners Jonathan Adelstein and Michael O'Rielly express their agreement with the district court's conclusion. In doing so, they focus on the big picture:

While much ink has been spilled debating whether broadband is an information service that is regulated under Title I of the Communications Act … or a telecommunications service that is regulated under Title II …, that question does not determine the proper resolution of this case. Whatever the answer, broadband remains an interstate communications service, and broadband rates may not be regulated by state governments.

A copy of their brief is available here.

Text of FCC Chairman Ajit Pai's Farewell Free State Foundation Address Now Available

On January 8, the Free State Foundation hosted a virtual farewell address by FCC Chairman Ajit Pai. The topic was FCC process reform. The text of his remarks is now available on the FCC's website.

Chairman Pai discussed three pillars of good government: transparency, reliance upon economics and data analysis, and maximizing the effectiveness of the people who do the work of the agency – in his words, "the FCC's greatest asset."

As noted in an earlier post to the FSF Blog, video of Chairman Pai's speech can be accessed on our YouTube page.

The Free State Foundation congratulates Chairman Pai on his many accomplishments at the FCC's helm and wishes him well in all future endeavors.

Catch the Teleforum on Chairman Pai's Tenure at the FCC

On Thursday, December 17 at noon Eastern time, the Federalist Society will host a teleforum event: "Chairman Ajit Pai's Tenure at the FCC: Fireside Chat and Panel Discussion." The chat with Chairman Pai will be followed by a discussion by panel members, including Free State Foundation President Randolph May. Be sure to call in on Thursday the 17th and listen to what likely will be a wide-ranging exchange reviewing the FCC's accomplishments during Pai's chairmanship as well as the future of federal communications policy. Information about the upcoming teleforum can be found on the Federalist Society's website.

UPDATE: Audio of the teleforum is now available here. 

Free State Foundation President Randolph May's Media Statement on FCC Chairman Pai's Departure

The following statement may be attributed to Free State Foundation President Randolph May:

 

 

“I’ve been involved in communications law and policy for four decades now, and I have no hesitation in saying that Ajit Pai has been one of the most consequential FCC Chairman that I have observed. As Chairman Pai said in the announcement of his impending departure, he has “not shied away from making tough choices.” Pai fought — and, indeed, he had to fight — to reduce regulation where it was no longer needed in light of marketplace and technological developments, and he led the way in taking important actions to help get broadband deployed in unserved areas. Perhaps most consequential of all was Pai’s leadership, supported by his colleagues Commissioners Michael O’Rielly and Brendan Carr, in reversing the Obama FCC’s imposition of public utility-like regulation on Internet providers. The idea that broadband providers should be regulated under the same common carrier regime as Ma Bell and legacy voice telephone companies doesn’t make sense.

There were occasions, unfortunately, when Chairman Pai and his family were subject to nasty personal attacks because of the positions he took, for example, in leading the Commission to adopt the Restoring Internet Freedom Order. This should never have happened and shouldn’t happen again. But Chairman Pai didn’t back down. Rather he responded to those unjustifiable attacks with grace and aplomb. That’s a worthy legacy too."

 

 

FSF President Randolph May Supports FCC's Reaffirmation of RIF Order

 

Free State Foundation President Randolph May issued the following statement regarding the FCC’s action today reaffirming the Restoring Internet Freedom Order:

“The FCC’s action in 2017 in its Restoring Internet Freedom Order is the most consequential action taken thus far in Ajit Pai’s chairmanship, with the support of Commissioners Michael O’Rielly and Brendan Carr. And so today’s action reaffirming the RIF Order is equally consequential. It’s the most consequential because it’s clear that subjecting Internet providers to public utility-like regulation is harmful to consumers, if not immediately, then certainly over time. Since the repeal of the public utility regulatory regime imposed by the Obama Administration FCC, broadband investment, broadband speeds, broadband deployment, and broadband access have all increased, while prices for ISP services have not increased. And, of course, the Internet remains open. This is why consumers have benefitted from the RIF Order.

If convincing evidence of consumer harms ever does materialize – which I doubt will occur – then the FTC and the Department of Justice should be able to address any demonstrated harms. And, of course, in any event, Congress ultimately could decide to adopt a framework for regulating broadband.

If next year happens to bring a change in the makeup of the Commission, with a Democrat Chairman, it’s quite possible, maybe probable, the rubber ball will bounce again and that public utility regulation of Internet providers will be restored. If this were to occur, even in the face of the accumulating evidence showing that repeal has benefitted consumers, then perhaps Congress will act to adopt a free market-oriented law that will protect the openness of the Internet while, at the same time, avoiding discouraging the innovation and investment upon which a sustainably vibrant Internet depends."