EchoStar: Chutzpah in Communications Land

 A classic example used to explain the meaning of the Yiddish term "chutzpah" is the joke about a boy who murders his parents and then begs the judge for mercy because he is an orphan.

 

EchoStar hasn't killed anyone. But its ploy to claim payments from the trust fund the FCC required EchoStar to establish as a condition of its approval of the transfer of EchoStar's spectrum licenses to AT&T and SpaceX certainly qualifies as one of the most egregious acts of chutzpah in Communications Land.

 

The background facts are well-known. When the FCC's Wireless Telecommunications Bureau (WTB) approved EchoStar’s sale of its licenses on May 12, 2026, for tens of billions of dollars, it required EchoStar to set up a trust fund to help pay tower companies and others that helped construct EchoStar's 5G network. While EchoStar was required to build the network as a condition on its licenses, it refused to pay the vendor companies that actually did so.

 

EchoStar has now told a federal bankruptcy court that this fund can be used to pay a loan one EchoStar subsidiary supposedly made to another, a claim so large, according to the WTB, it threatens to "swallow the fund."

 

In a July 30, 2026, order, the WTB firmly rejected EchoStar's act of chutzpah: "We disagree, and clarify what should be obvious – that the fund cannot be used to pay companies that did not build the network. And to ensure that that the purpose of the fund is not perverted, we also modify the fund’s terms to explicitly exclude from payment any claims of EchoStar or its subsidiaries."

 

Never one to give up on a far-fetched gambit – especially one trying to "swallow a fund" meant for the benefit of others – EchoStar has now asked the full Commission, in an August 30 Application for Review, to reverse the Bureau's order. EchoStar contends that, because the agency's order establishing the trust does not explicitly limit the payouts to claims of third parties, it's entitled to take funds from the trust with one hand that it supplied with the other.

 

The Wireless Telecommunications Bureau's July 30 order, to ensure its intent in creating the trust fund is carried out, modifies the definition of a fund claim to exclude any claims on behalf of EchoStar or its subsidiaries or affiliates, or any assignee thereof. The Bureau's July 30 order explains what almost certainly was evident to all when the FCC required that the trust fund be established as a condition of its approval of the transfer of EchoStar's spectrum licenses:

 

"The purpose of requiring EchoStar to create the Fund was to ensure that some of the tens of billions of dollars EchoStar is receiving for its wireless licenses be used to pay those who built the 5G network that EchoStar promised and was required to build as a condition on holding those licenses. That purpose is not realized if EchoStar pays the money to itself (directly or indirectly), or uses it to pay other of its debts or those of its subsidiaries or affiliates."

 

In essence, EchoStar's main argument seems to be that the Administrative Procedure Act prevents the Bureau from clarifying its July 30 order to make crystal-clear, if need be, that the lack of an explicit limitation in the agency's original order creating the trust fund did not mean that EchoStar itself would be able to claim payments from the very trust it funded. I don't think the APA does any such thing.

 

If EchoStar's gambit succeeds, not only would the specific tower and other 5G infrastructure builders for whose benefit the trust fund was established be injured, but, as importantly, the prospect for future network build-outs will be diminished as a result of the lack of confidence that contracts will be honored and that the rule of law will prevail.  

 

I forget what happened to the orphan who, in a show of chutzpah, pleaded with the judge for mercy after killing his parents. But you don't need to be an expert in administrative law or in Yiddish to suspect that, in this instance, EchoStar's exercise of chutzpah in Communications Land will be to no avail.

California PUC Scheduled to Vote on Charter/Cox Transaction: Additional Bites at the "Conditions" Apple Shouldn't Be Allowed to Upset the Pro-Consumer Cart

Next Thursday, the California Public Utilities Commission (CPUC) at long last is poised to vote on the transfer of control of Cox Enterprises, Inc. (Cox) to Charter Communications, Inc. (Charter). And with little time to spare. The question is, will extra-legal attempts to saddle this pro-consumer transaction with unjustified conditions "jeopardize the Transfer's public benefits altogether"?

In comments filed with both the CPUC and the FCC, a June 2025 Perspectives from FSF Scholars, and a series of blog posts, Free State Foundation President Randolph May and I consistently have argued that the proposed combination of Charter and Cox is likely to generate clear consumer-benefitting efficiencies and, as a result of the de minimis overlap of their service territories as well as the impact of intense competition from Big Tech, no significant offsetting harms.

As we concluded in our submission to the FCC:

[T]he combination of Charter and Cox promises numerous consumer benefits. These include [(1)] lower costs, greater choice, and additional innovation in traditional cable offerings (broadband and video) fostered by an enhanced ability to compete with often much larger rivals, including Big Tech platforms with global reach; (2) the expansion of Charter's hybrid [mobile virtual network operator] offering into Cox's footprint combined with lower costs through greater scale; and (3) the "onshoring" of Cox customer-service jobs. And given the lack of any meaningful overlap in service territories, not to mention the high level of third-party competition in all three marketplace sectors, there appears to be little, if any, basis for concern that the transaction could result in significant harms.

*    *    * 

Regarding the state of play in California, the last hurdle that the transaction must clear, let's start with (potentially) good news: as I noted in my June 23 post to the FSF Blog, the parties expressed concern in a June 18 notice of ex parte communication that the CPUC's failure to act by August 13 – that is, the very day upon which the vote is scheduled – could result in the expiration of the Department of Justice's Hart-Scott-Rodino (HSR) approval. That "would cost the companies $2.5 million in filing fees and require them to wait at least another 30 days for DOJ clearance."

Should a vote to approve proceed as scheduled, those imminent instances of inefficiency and waste would be averted.

And now, let's turn to the (potentially) bad news: as I described in that same blog post, commenters, certainly aware of that looming deadline, had urged the CPUC to impose still more conditions – that is, on top of those agreed to by the parties in comprehensive settlements (Settlements) with the CPUC's Public Advocates Office and the California Emerging Technology Fund (CETF) and described in a May 18 notice of ex parte communication.

(Without getting too far into the weeds, there are two proposals before the CPUC: (1) the Proposed Decision of Administrative Law Judge Ormond (PD), to which Charter and Cox roundly object, and (2) the Alternative Proposed Decision of Commissioner Matthew Baker (APD), which is based upon the Settlements.)

In reply comments, CETF took issue with the PD, contending that "[b]ottom-line, a settlement agreement requires the assent of its parties" (emphasis in original).

Similarly, in their reply comments regarding the PD, Charter and Cox asserted it "deviates from longstanding Commission precedent, resulting in 'clear legal error and technical inconsistency,' by improperly superseding Settlement terms, and imposing extraneous measures with no record support. It would materially impede Charter's ability to compete and jeopardize the Transfer's public benefits altogether" (citations omitted).

By contrast, Charter and Cox noted approvingly in their reply comments on the APD that it "correctly finds that the Transfer, with the Settlements, serves the public interest, and, 'paired with the mitigations' that Joint Applicants accept (subject to modest revisions), also 'address[es] concerns raised by parties outside the [Settlement A]greement[s]'" (emphasis in original).

*    *    *

The Settlements to which Charter and Cox – as well as the CPUC's Public Advocates Office – are a party appear to be more than sufficient to address any potential harms resulting from this transaction. The CPUC therefore should reject calls to unilaterally supersede those agreements and instead approve the APD at its meeting next week.

Congress and Regulators Should Follow NCTA’s Next Steps on AI-Driven Shortages

Surging demand for high-power AI chips is diverting scarce resources away from traditional chips that are used in broadband equipment. For example, the price of DDR4 memory – ubiquitous in broadband – has risen 700-800% year-over-year. NCTA – The Internet & Television Association has also emphasized that the problem extends beyond memory chips to substrate, the foundational materials on which chips are built.

An NCTA-led coalition of groups involved in deployment and operation of broadband services sent a letter on June 2 to Treasury Secretary Scott Bessent and Commerce Secretary Howard Lutnick urging certain policy actions to expand chip production: “Ease constraints on alternative sourcing and product redesign by offering expedited validation and approvals for regulated products, along with flexibility for necessary hardware, firmware, or software changes. . . Identify and remove regulatory barriers that slow the expansion of memory manufacturing capacity, both domestically and internationally, to increase overall global supply.”

Promising policies under NCTA’s recommendations may include: streamlining regulatory and permitting requirements; reforming the Toxic Substances Control Act (TSCA) to speed up the review of new chemicals and substances necessary for innovation; allowing immediate expensing of foreign research and development costs; easing trade frictions by cutting unnecessary tariffs and customs barriers, expedite customs clearance procedures, and ensuring that semiconductor data can move freely across borders; and reforming high-skilled immigration for a robust workforce.

Broadband providers rely heavily on semiconductors to capture, process, and transmit data across their networks, making these shortages a direct constraint on their ability to operate, expand, and improve Internet service. And broadband providers are not alone. The coalition includes other sectors experiencing supply constraints, including automotive, medical technology, and retail associations.

State and federal policy responses to the shortages largely have relied on interventions in the form of grants, loans, and tax credits for domestic chip making and research. These interventions, like the 2022 CHIPS and Science Act, may indeed alleviate chip shortages but are subject to the typical flaws of government subsidies – they risk favoring selected companies and taxing Americans in the form of mounting government debt.

Encouragingly, there have also been some wins for more free-market oriented approaches to boost supply and slow the growth of increasing costs. In June, the FCC granted a waiver of certain router requirements that NCTA had petitioned for – I blogged about it here. The 2025 One Big Beautiful Bill Act restored expensing requirements for research and development (affecting all industries, not just chip-making). The OBBBA also let companies deduct the full cost of most new equipment and machinery in the year they buy it, particularly valuable for a capital-intensive industry like chip production.

Congress and regulatory agencies should build on NCTA’s recommendations and expand market-oriented approaches already supported by parts of the semiconductor industry, including the Semiconductor Industry Association.

Ultimately, persistent chip shortages translate into higher costs paid by consumers. When supply is stretched thin across industries, everyday products and services become more expensive – particularly in memory-heavy markets like broadband.

Congress and regulators must focus on finding market-oriented ways to bring these costs down for Americans.

PRESS RELEASE: The Supreme Court Confirms Agency Commissioners May Be Fired at Will

 

Free State Foundation President Randolph May issued the following statement regarding the Supreme Court’s decision today in Trump v. Slaughter:

“The Supreme Court has now confirmed the handwriting on the wall. The president may fire, without cause, members of what were formerly known as ‘independent’ agencies, including FCC commissioners. The Court held, correctly in my view, that this power is dictated by the Constitution’s separation of powers scheme. 

As I have pointed out for years, it is highly likely that, even absent the Slaughter decision overruling Humphrey’s Executor, the president always has possessed the authority to dismiss FCC commissioners at will. This is because the Communications Act, unlike the FTC Act and other statutes, doesn’t contain at provision even purporting to limit the president’s dismissal discretion. Of course, pursuant to the Communications Act, the FCC still needs a quorum to operate, which means three confirmed commissioners."  

Finding a Consensus on Accomplishing Permitting Reform

With the House of Representatives’ failure to schedule a vote on the American Broadband Deployment Act of 2025, we may have reached an impasse, at least for the moment, on achieving additional permitting reform at the state and local levels. Congress has taken several steps forward on reform at the federal level. But these mostly involved changes to the National Environmental Policy Act or the National Historic Preservation Act, the statutes that govern the majority of federal permitting decisions. However, one past attempt at negotiation may offer some lessons.

The success at the federal level led many to conclude that circumstances might be right for a more comprehensive reform to remove obstacles at the state and local levels. On March 24, Representative Buddy Carter (R-GA) introduced H.R. 2289, the American Broadband Deployment Act, which combined provisions from roughly 20 previous bills, including shot clocks and limits on fees, to accomplish broad reform. The bill passed the House Committee on Energy and Commerce and was scheduled to go before the House Rules Committee on April 20^th. However, a vote was indefinitely postponed once it became obvious that the bill lacked the votes to pass. This change in outlook was widely attributed to opposition from a number of associations representing state and local government, including the National Association of Counties and the U.S. Conference of Mayors.

Although Congressman Carter expressed confidence that the bill would pass later this Congress, the debate currently seems to be at an impasse. While the FCC is pursuing permitting reform under its own authority, the timing of any decision is not known and any significant change will be immediately challenged in court, delaying its effect. Meanwhile the significant increase in buildout activity due to the Broadband Equity, Access, and Deployment Program (BEAD) is approaching.

This is a shame because sensible permitting reforms would benefit both broadband providers and local governments. To start, unnecessary time and costs delay the build-out and use of broadband coverage to local households. Coverage in turn is firmly linked to greater economic activity and higher living standards. In the short-run permitting also increases local demand for skilled labor. So far much of the debate has been confined to anecdotes regarding specific experiences and limitations on the FCC’s powers, especially in light of recent Supreme Court decisions. While a list of unreasonable fees, unrelated construction requirements, poor construction planning, and damage to state and local property catches one’s attention, it is probably not the best grounds for determining public policy.

Almost two years ago the Benton Institute for Broadband & Society teamed up with the Georgetown Law Institute for Technology Law & Policy and groups of both Internet supporters and state and local governments to explore the possibility of improving the permitting process in ways that benefit all stakeholders. The effort involved a survey of stakeholders, a one-day conference, and a written report.

The report contained several sensible suggestions for reform. It listed three findings, each of which produced more specific suggestions. First, the parties should foster a partnership between the permit seeker and the permitting authority. They should try to create trust and accountability by meeting early and often and understanding the role of both local government and the proposed development. According to the report, one key issue is determining when any shot clock would start.

Second, the parties should maximize the resources available to the permitting authority. There was a consensus that many permitting agencies lack the resources needed to handle the normal permitting volume, let alone the significant increase expected from BEAD disbursements. Given BEAD’s history and the current delay in announcing how the government will spend approximately $21 billion in non-deployment funds, one should not be surprised if a large number of projects experience significant delays from a variety of causes, placing greater strains on agencies. Given that much of the under capacity may be due to the increase in BEAD-funded construction projects, perhaps using some of the excess to increase local capacity, at least through the surge, makes sense. Providers should also help agencies build public support by articulating the benefits of broadband delivery.

Third, the process should be transparent and consistent. Efforts to modernize the process by allowing builders to download forms, submit applications online, and look up the current status of projects can lower total costs and reduce unnecessary duplication. Modern online dashboards are already being used successfully in some jurisdictions.

In general, and certainly in the abstract, the Benton Institute report recommendations are sensible and merit action. However, they do not address some of the worst abuses regarding permitting at the local government level. These abuses increase the costs of broadband deployment projects and delay the provision of new or improved service to consumers.

Taking the position that state and local governments should face no deadlines, should be able to charge whatever fees they suggest are reasonable, and should be allowed to require substantial unrelated improvements seems like something we should avoid.

Let the Market Govern Call Centers

On March 27, the FCC issued a notice of proposed rulemaking for call centers located outside the U.S. On April 21 the National Retail Federation wrote to express its opposition to the proposal. It is not hard to see why. On the surface the proposed rule runs contrary to the Commission’s ongoing efforts to eliminate unnecessary regulation in its "Delete, Delete, Delete" docket. In substance, the Federation calls it “a stunning lack of understanding of how customer service actually works.”

The proposal would interfere with a sophisticated global trade in call center services. This in turn would likely add costs and delays to consumer calls. More important, it would have the Commission go beyond its primary duty of regulating the communications networks that handle international calls of whatever kind and involve it in regulating both the content and organization of specific business calls. Something it is not equipped to do.

The FCC’s proposed rule seeks to accomplish a number of things. It would require call center employees to speak fluent English and limit the amount of consumer service calls that could be made from offshore. Call centers would have to notify callers that the call is being handled offshore and give them the option of transferring it to a call center in the U.S. Finally, the rule would require companies to store sensitive customer only at centers in the U.S.

Call centers do not rank high on consumer satisfaction surveys. However, they perform an important business function. Retailers have a strong incentive to keep consumers satisfied because it is often cheaper to keep an existing customer than to attract a new one. Growing U.S. wages have led companies to move some call centers overseas. Retailers did this not out of a sense of animus toward the U.S., but out of a desire to reduce costs, a benefit that has largely been transferred to customers. Any requirement to move calls back to the U.S. would certainly raise prices and probably waiting times.

Similar proposals have been introduced in Congress. These should also be opposed. As a basic point, there is little evidence of any market failure. Operating call centers involves a balance between cost, waiting times, and call quality. The right balance should be determined by business principles, not politics.

The Commission’s notice requests a great deal of data regarding how its rule would work. Commissioner Anna Gomez refers to the rules as “extensive,” hinting at a large information burden on companies. At present, however, the Commission’s analysis relies heavily on anecdote. The FCC will also have to struggle with other issues, including how to handle non-English speaking consumers, the application to non-voice communications such as bots, requirements for providers of Internet-only services, and automation. The proposal would certainly speed the transition from workers to AI-driven programs.

The public justification for regulating robocalls and scams is clear cut. The need to regulate legitimate call centers is much less so. It would involve the FCC partly determining both the content of consumer calls and the structure of the call industry. Both lie beyond its primary duty of ensuring that communications networks promote the creation of value. A safer alternative would be to promote the collection of best practices for handling calls, securing data, and training workers.

Talkie's Preemption Petition Looks Persuasive - Part II

On March 12, I posted a blog titled, "Talkie's Preemption Petition Looks Persuasive." As I explained, in its petition Talkie asks the FCC to preempt Queen Anne's County in Maryland from enforcing what it claims are local zoning requirements that have the effect of prohibiting Talkie from attaching its communications equipment to a utility pole owned by Talkie. The county's purported justification for obstructing Talkie's proposed broadband service is that it would be delivered over multi-use (that is, comingled) facilities.

 

In my March 12 post, I concluded:

 

This is just one of many instances in which local cities and counties across the country implement onerous and often costly requirements, or engage in bureaucratic delay tactics, that prevent the timely deployment of new communications services and advanced broadband infrastructure. It's important that, when appropriate, the FCC grant meritorious preemption petitions. Talkie's petition looks like it may be just such a case.

 

While I hope that the Marylanders who might be served by Talkie proposed broadband service will not be denied that service because of improper actions by local officials, I'm also interested, of course, in the principle at stake in this particular preemption spat and other similar ones. That's why, in the above excerpt, I referred to "many instances" involving tactics similar to those confronted by Talkie in Maryland.

I'm pleased to see that INCOMPAS, representing a broad coalition of competitive communications providers and broadband builders, has submitted comments to the FCC supporting Talkie's preemption petition. INCOMPAS reports that its members "regularly

encounter discriminatory zoning requirements, excessive fees, sequential permitting processes, and de facto moratoria that significantly hinder broadband deployment."

 

INCOMPAS states that "the Commission has consistently preempted fees and requirements that disrupt deployment of advanced services over commingled facilities. The County’s opposition asks the Commission to retreat from that settled position, and INCOMPAS urges the Commission to decline to do so." Therefore, according to INCOMPAS, "the outcome of this proceeding will affect every INCOMPAS member deploying modern multi-use networks."

 

It is this potentially broader impact of the Commission's disposition of Talkie's preemption petition –aside from concern regarding the immediate impact on those residents who might benefit from having available Talkie's services – that prompted me to highlight Talkie's petition in the first place. Absent affirmative Commission action on Talkie's petition pursuant to Section 253 of the Communications Act, the ability to deliver broadband services over multi-use infrastructure could be put in jeopardy.

 

If that is the case, the full realization of FCC Chairman Brendan Carr's much-needed "Build America" agenda, which is necessarily dependent on rapid deployment of broadband infrastructure, could be adversely impacted. It still looks to me like Talkie has presented a persuasive case that should be given close attention by the Commission in a timely fashion.

 

Rather Than Mandate Standards, the FCC Should Encourage Innovation

There is a consensus that regulators should welcome new technology and foster innovation rather than favoring one technology or business model over others. The FCC is at risk of violating this principle as it considers mandating NextGen TV for broadcasters. Doing so would stymie the ongoing competition between different standards in return for adopting an unproven and costly approach.

As former FCC Commissioner Michael O’Reilly recently argued in a Perspectives from FSF Scholars, there is no need for the FCC to mandate a standard now. Although NextGen TV promises several features, including better picture quality, interactive content, and targeted advertising, it is not clear that it is delivering them yet. Mandating NextGen TV now may commit the Commission to the high costs and slow adoption rates characteristic of an unproven technology.

Meanwhile, the market for innovation is working. Companies are experimenting with different distribution technologies including streaming, 5G, and NextGen TV. Some broadcasters are voluntarily adopting it in a constant search for better distribution systems, showing that success is possible. What broadcasters need to do now is to capture users by providing an enhanced viewer experience.

A mandate would also impose significant cost on others. Providers of cable and satellite service would have to purchase new equipment. Consumers would need either new televisions or an antenna capable of converting the new over-the-air signal to the old one. The Commission would have to require TV manufacturers to adopt the new standard. This is true even though the vast majority of viewers don’t rely on over-the-air signals.

Another basic principle is that regulations should not favor one technology over others, or one set of competitors over another. Yet mandating NextGen TV would advantage broadcasters over cable and satellite providers. Rather than having to compete for viewers, the Commission would basically deliver captive viewers to broadcasters.

The benefits of future technologies are often difficult to envision. But the constant demand for improving consumer experiences is a very strong motivator. As the regulator of one of the economy’s most innovative sectors, the Commission should encourage this process rather than short circuit it.

 

Talkie's Preemption Petition Looks Persuasive

An item in today's Law360 Telecommunications newsletter, "Md. Gov't Agencies Oppose Talkie's FCC Preemption Bid,"caught my attention. [A subscription is required to access Law360.] The report involves a petition filed with the Federal Communications Commission by Talkie Communications, Inc., in January 2026, asking the agency to preempt Queen Anne's County in Maryland from enforcing what it claims are local zoning requirements that have the effect of prohibiting Talkie from attaching its communications equipment to a utility pole owned by Talkie.

According to Talkie, the county's bureaucratic permitting roadblocks are preventing it from providing voice, data, and cable services to Maryland residents and businesses. In recent years, Talkie has made significant investments to deploy its broadband services, including high-speed Internet services, in order to expand its competitive footprint.

 

Like many of the disputes between wireless and wireline communications providers and local authorities, there is a lot of back-and-forth, with assertions and counter-assertions. I haven't taken the time to independently investigate the facts of this dispute. But after reviewing Talkie's preemption petition, it looks to me like Talkie has presented a good prima facie case.

 

This is just one of many, many instances in which local cities and counties across the country implement onerous and often costly requirements, or engage in bureaucratic delay tactics, that prevent the timely deployment of new communications services and advanced broadband infrastructure. It's important that, when appropriate, the FCC grant meritorious preemption petitions. Talkie's petition looks like it may be just such a case.

 

The proper exercise of the Commission's preemption authority in a timely fashion is crucial to the full realization of FCC Chairman Brendan Carr's important, much-needed "Build America" agenda.

 

Bipartisan Bill Would Impose Time Limits on the FCC’s Approval Process

On February 26 Representatives August Pfluger (R-TX) and Josh Gottheimer (D-N.J.) introduced legislation to increase transparency and accountability in the FCC’s review of spectrum license transfers. The legislation is especially appropriate because the FCC is currently going through two regulatory processes to speed the state and local permitting process for wired and wireless deployments, respectively. Shortening regulatory delays has lately attracted more attention as a way to increase the deployment of broadband networks. Its importance can be seen by the push to use nondeployment funds in the Broadband Equity, Access, and Deployment Program to improve the permitting process.

The Keep It Moving Act (H.R. 7742) makes two major changes. First, it would impose strict time limits on the FCC’s license transfer review process. Second, it would require a full Commission vote to deny any application, ensuring licensing decisions are driven by the views of the Commission rather than its staff.

Under the bill a new Section 417 of the Communications Act of 1934 would place time limits on the Commission’s consideration of applications to transfer control or assignment of any license or lease subject to the jurisdiction of the FCC.

Under the Act, within 15 days of receiving an application the FCC must either tell the applicant that the application is complete or provide the information needed to make it complete. If the applicant submits an amended application, the FCC has five days to determine whether it is complete. If the Commission misses the deadline, the application is deemed to be complete.

 

Once the application is completed, the FCC has seven days to issue a public notice and invite public comment, if appropriate. The decision that an application is incomplete is considered an appealable decision under the FCC rules. If it is decided that the application is complete, the application is deemed to have been complete 15 days after it was submitted or, if the application was amended, 5 days after the last amendment.

The Act requires the Commission to approve an application within 180 days after the public notice. This does not apply if the FCC issues a formal request for additional information or refers the application to the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector, in which case the deadline is extended to one year. In the latter case, the Commission may take an additional 90 days to conduct a secondary assessment. If more information is needed for review, the Commission must issue a request by the earlier of a) 30 days after the end of the public comment period if there was one or b) 120 days after the public notice date. If the Commission decides that a substantial and material question of fact requires a hearing, it then has 15 months from the date of the public notice to issue a final order on the application.

If the FCC does not approve the application within the relevant time period, the applicant may obtain a writ from the appropriate court compelling the Commission to either approve the application or justify its denial in court. In the latter case, the FCC must show by clear and convincing evidence that approval of the application is not in the public interest. If an applicant files a major amendment or waiver request with respect to its application, the Commission may extend its deadline by 30 days.

Applications that are currently pending before the FCC are treated as if the application was filed on the date of enactment for purposes of determining deadlines under the Act. These time requirements do not apply to pro forma transactions that do not require Commission approval in advance of the proposed transfer of control. However, the holder of the pro forma license or other authorization must notify the Commission of the transfer within 30 days of its completion.

The Act also requires more involvement on the part of the Commission itself. While the FCC staff may still approve applications pursuant to existing delegations of authority, denying an application or designating it for a hearing will require a Commission vote.

The legislation should provide much more clarity to license reviews, making it easier and faster to get spectrum into the hands that can use it best. Several industry groups, including the NCTA, CTIA, and the National Association of Broadcasters released statements praising the bill and predicting that it would increase both innovation and deployment of broadband networks.

Carr Updates Congress on Broadband Interagency Coordination

In a series of letters dated September 9, 2025, FCC Chairman Brendan Carr updated congressional leaders on steps taken by the Commission to improve data collection and interagency coordination efforts related to federal broadband infrastructure subsidies.

The Government Accountability Office (GAO) published "Broadband Programs: Agencies Need to Further Improve Their Data Quality and Coordination Efforts" on April 28, 2025. That report, which I described in detail in a May post to the FSF Blog, highlighted shortcomings in the processes by which the four agencies primarily responsible for distributing billions in federal dollars – the FCC, NTIA, and the Departments of Treasury and Agriculture – share data to prevent the awarding of duplicate grants and the overbuilding of privately funded infrastructure.

It also identified concerns relating to the accuracy of the FCC's maps – the National Broadband Map and the Broadband Funding Map – and the efficacy of federal and state agency coordination.

To address these issues, the GAO report made 14 recommendations, six specific to the FCC.

In his letters to committee leadership in both the Senate and the House, Chairman Carr wrote that the Commission "is pleased to inform you that the Commission is actively addressing and incorporating GAO's six recommendations into [its] processes and interagency coordination of federal broadband funding projects."

Regarding data collection, the FCC, consistent with its internal corrective action plan, has been documenting internal policies and procedures, reviewing how mapping data is validated, and aligning processes relating to verifications, audits, and enforcement.

To improve interagency coordination, the Commission has been working with other agencies to establish a common definition of "covered data" for the purpose of information sharing as well as timelines governing that sharing process.

In conclusion, the letters assert that, "[t]ogether, when fully implemented, the Commission, as well as our sister agencies, expect these process improvements will further minimize wasteful duplicative funding."

For more on the critical importance of effective interagency coordination regarding broadband subsidies, I direct your attention to "The Failure's in the Footnote: Agencies Must Improve Broadband Expenditure Coordination Efforts," my January 2025 Perspectives from FSF Scholars, as well as the numerous Free State Foundation publications referenced therein.

President Trump Revokes President Biden's Mislabeled "Promoting Competition" EO

On August 13 President Trump issued an Executive Order revoking President Biden's Executive Order 14036 issued in 2021. EO 14036 was styled "Promoting Competition in the American Economy." 

Naming EO 14036 "Promoting Competition in the American Economy" was real misnomer in the same way that President Biden's "Inflation Reduction Act of 2022" was misleadingly labeled. That law did a whole bunch of things, but reducing inflation was not one of them. Instead, it increased inflation. Likewise, the "Promoting Competition" executive order encouraged adoption of a lot of unsound policies by various agencies. The overall effect was not to increase competition and make markets freer but to increase government intervention in key segments of the U. S. economy.

 

With respect to communications law and policy, the Biden EO "encouraged" the FCC to adopt "net neutrality" rules to convert broadband Internet service providers into public utilities. Additionally, it "encouraged" the agency to prohibit early termination fees; to require broadband providers to regularly report broadband price and subscription rates to the agency; and to prevent landlords and cable and Internet service providers from inhibiting tenants' choices among providers.

 

                                                  

Not surprisingly, the FCC under Jessica Rosenworcel's leadership proceeded to implement, or try to implement, all of the actions it was "encouraged" to implement. Most of these sugar-coated government interventions did not contribute to enhancing competition or benefitting consumers.

 

So, I'm pleased President Trump has revoked the Biden's Executive Order 14036 which provided a lot of the impetus for many of his administration's regulatory crusades.

 

That said, I have no hesitancy in admitting that I wish President Trump would resist his not-so-occasional urges to "encourage" government intervention in the free marketplace when it strikes his fancy. Could he issue an executive order that would restrain himself?

Two Victories for Constructing Cell Tower Infrastructure

 As reported in Law360 [subscription required] on August 13, both the Fourth and the Eleventh Circuits issued decisions on the same day affirming lower court actions that had rejected local governments denial of permission to cell tower companies to build out cell tower infrastructure. There continue to be attempts by some municipalities and counties to improperly forestall cell tower projects, hindering the deployment of a robust 5G networks. So these two new appeals court decisions are welcome, especially coming on the day.

In one case, the Fourth Circuit said that Culpeper County, Virginia, officials let the 150-day clock run out without approving or denying the application, and that, under federal law, that was sufficient for it to be "deemed granted." In other words, the locality can simply sit on the application and "run out the clock."

                                               

 

In the other case, the Eleventh Circuit determined that Brevard County, Florida, couldn't deny a conditional-use permit to build a cell tower for "solely aesthetic concerns." The appeals court agreed with a lower court's finding that those concerns about the tower intended to enhance service for T-Mobile weren't supported by substantial evidence, adding that "we have consistently held that generalized aesthetic objections, standing alone, cannot justify denial of an otherwise qualified application." Therefore, according to the court, " the district court correctly concluded that the county's factual support for its decision fell short of the substantial evidence requirement."

 

As the Law360 report concludes: "The Telecommunications Act of 1996 is the law that most cell tower disputes are filed under, and it forbids localities from regulating cell towers in a way that prohibits telecom services. Local governments also can't deny permits based on environmental concerns, which courts have generally interpreted to include health concerns, and applications are deemed granted if municipalities leave them untouched for long enough."

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.

What Goes Around Comes Around

A quarter century ago I published a column in Legal Times titled, "Any Volunteers?" The editors added this subtitle: "The FCC unfairly regulates 'by condition' when it extracts concessions from merging telecom companies."

 

In the column, I criticized what was then becoming an increasingly frequent practice of extracting so-called "voluntary" concessions from applicants seeking to obtain FCC approval for their pending transactions involving mergers, acquisitions, or the like. Because the FCC reviews proposed transactions – whether the applicants hold spectrum licenses or common carrier authorizations – under the amorphous "public interest" standard, FCC commissioners found it easy to justify the extraction of conditions that, at least in their minds, comported with the public interest.

 

As I detailed in the column in 2000, often the voluntary, usually "midnight" concessions did not involve matters unique to the applicants before the Commission. And the conditions imposed did not involve compliance with specific then-existing requirements of the Communications Act or of Commission rules. The justification for imposing them was that they somehow advanced the public interest. The Legal Times column contains many examples of extraneous conditions imposed to obtain transaction approvals during the Clinton FCC period.

 

Regarding what I called "regulation by condition," I said: "The bottom line is that this process unfairly singles out merger applicants for regulation that, if justified at all, should be applied on an industrywide basis." And I urged Congress to reform the FCC's transaction review process.

 

In the ensuing 25 years, on many occasions I have bemoaned the ongoing practice – used most often, but not exclusively, by Democrat-controlled commissions – to extract extraneous "voluntary" commitments from supplicants seeking approval of proposed transactions. Again, by extraneous I mean the imposition of conditions that are not transaction-specific or uniquely related to the applicants as opposed to a generic group of market participants.

 

In both 2011 and 2013, my testimony before the House Energy and Commerce Committee urged reform of the FCC's transaction review process to prohibit the agency from imposing any condition not narrowly tailored to remedy a unique transaction-specific harm.

 

As a matter of principle, my position regarding the FCC's handling of transaction reviews and the need for reform of the process has been consistent throughout.

 

Which brings me to the FCC's approval of Skydance's acquisition of Paramount CBS, including its broadcast television stations. In approving the transaction, the FCC's Republican majority imposed an anti-DEI condition and an ""unbiased journalism" condition based on commitments offered by Skydance. Here's the FCC's description of both conditions:

 

"Commitment to Unbiased Journalism. Skydance has made written commitments to ensuring that the new company’s array of news and entertainment programming will embody a diversity of viewpoints across the political and ideological spectrum and that CBS’s reporting will be fair,

unbiased, and fact-based. To promote transparency and increased accountability, Skydance commits, for a period of at least two years, to have in place an ombudsman who will report to the President of New Paramount and evaluate complaints of bias.

 

Ensures that Discriminatory DEI Policies End. Skydance, which has no DEI programs in place today, has committed that it will not establish any such initiatives at the new company and confirms that New Paramount will also be committed to equal opportunity employment and nondiscrimination. This will ensure that the combined business will enact policies and practices consistent with the law and the public interest."

 

At this point in our nation's history, I generally oppose government-imposed or government-cajoled DEI programs because, all too often, in practical effect and however couched, they turn into coercive mandates that lead to forms of invidious discrimination. In other words, in effect, they deny equal treatment to those individuals who happen to be outside of the groups favored by the DEI programs and who did not engage in perpetuating any form of discrimination themselves. And, like many, I am disturbed by the demonstrable left-leaning political bias that still largely prevails in many of what we called "mainstream" media outlets. So, philosophically, I am disposed to be sympathetic to the concerns that give rise to the FCC's anti-DEI and "unbiased journalism" conditions.

 

Nevertheless, as a matter of principle, I dislike seeing the FCC's transaction review process continue to be used to impose "voluntary" concessions not uniquely related to the specific transaction – as it was in this instance. To be sure, the "public interest" standard may be sufficiently indeterminate for today's Republican Commission majority to justify imposition of the anti-DEI and anti-political bias conditions. Certainly, under the public interest rubric, Democrat commissioners, historically, have resorted to the extraction of "voluntary" concessions leading to imposition of concededly extraneous conditions much more frequently than have their Republican colleagues. If you're not familiar with these instances, you can start with my "Any Volunteers?" column and go from there.

 

So, I could say "what goes around, comes around." Or what's "good for the goose is good for the gander." Or some such. There's lots of truth in those old sayings, and there's part of me that wants to leave it at that. This is especially so because there's rarely, if ever, any acknowledgement by those now decrying the FCC's handling of the Skydance transaction that "their side" has abused the review process in the past.

 

But I prefer not to leave it at that. I prefer to take leave offering the same consistent message I have offered for a quarter-century: Congress should reform the FCC's transaction review process along the lines I've advocated. That reform starts by prohibiting the agency from imposing any condition not narrowly tailored to remedy a unique transaction-specific harm.

FCC Deletes, Modernizes, Streamlines Cable Rate Regulation

At today's Commission open meeting, Chairman Brendan Carr's IN RE: DELETE, DELETE, DELETE initiative bore fruit when the agency adopted a Report and Order providing the cable industry with long-overdue relief on the rate regulation front. As long as Section 623 of the Communications Act remains on the books (see below for more on that), the rate a cable operator not facing "effective competition" – essentially a null set, legally speaking, since 2017 –charges for the Basic Service Tier (BST) remains subject to regulation. This item, (circulated version available here), however, "will remove from … regulations approximately 27 pages, 11,475 words, 77 rules or requirements, and 8 forms."

The Report and Order deregulates most cable equipment, exempts smaller systems, and declines to extend its rules to commercial establishments. It also modernizes and streamlines those rules that remain in place, primarily to reflect the sunset, over 25 years ago, of tier regulation beyond that of the BST – that is, the tier (1) upon which local broadcast television stations and public, educational, and government access (PEG) channels must be carried, and (2) to which rate regulation in theory still applies.

In practice, of course, given the ubiquitous presence nationwide of "effective competition" from direct broadcast satellite (DBS) operators, telco TV providers, and virtual multichannel video programming distributors (vMVPDs), rate regulation of the BST no longer occurs. As the item notes, the Commission itself is "unaware of any local communities that are actively regulating cable rates at this time."

In a June 5, 2025, post to the FSF Blog, Free State Foundation President Randolph May described this undertaking broadly as "a meaningful regulatory reform accomplishment" and referenced the following language from our comments: "what primarily stands in the way of unbridled, consumer-benefitting competition are ill-fitting rules that hamstring the subset of participants to which they uniquely apply." The Report and Order, the goal of which is to "unleash prosperity through deregulation," is significant step in the right direction.

Speaking of deregulation, according to Law360 (subscription required), earlier this week House Energy and Commerce Committee Chairman Brett Guthrie (R-KY) stated that "'it's time to have a real conversation and update the 1992 Cable Act.'" Consistent with the position for which I (as well as others associated with the Free State Foundation) long have advocated, most recently in "Deregulation Is the Cure for the Video Regulatory Disparity," a June 9 post to the FSF Blog, Chairman Guthrie indicated that he opposes calls to extend legacy MVPD regulation to virtual alternatives: "'I fear that imposing additional regulation on this industry rather than relieving burdens on others would slow down innovation rather than encourage it.'"