Representative Lofgren's Online Privacy Act Has Reentered the Chat

As we eagerly await word from the House Energy and Commerce Committee's data privacy working group, Representative Zoe Lofgren (D-CA) once again has resurrected the problematic Online Privacy Act (OPA).

In February 2025, Committee Chairman Brett Guthrie (R-KY) and Vice Chairman John Joyce, M.D. (R-PA) announced the establishment of a data privacy working group "to bring members and stakeholders together to explore a framework for legislation that can get across the finish line." (For more information please see my contemporaneous post to the Free State Foundation blog).

Shortly thereafter, the working group solicited public comment on a Request for Information that I summarized in a follow-up blog post.

In a January Perspectives from FSF Scholars summarizing privacy-related legislative activity in 2025, I shared speculation that the working group might introduce a bill "soon." Separate reporting around the same time indicated that the working group "intend[s] to take up action on a broader, comprehensive federal privacy measure in spring 2026."

In the interim, Representative Lofgren for the fourth time has introduced the OPA, a draft bill first unveiled in 2019 and then again in 2021 and 2023.

As I pointed out in "A Tale of Three Data Privacy Bills: Federal Legislative Stalemate Enables Bad State Laws," a January 2022 Perspectives, the OPA has two top-level shortcomings: (1) it "is silent on the issue of preemption," and thus fails to address the state-level "patchwork" problem that in the intervening years has only gotten worse; and (2) it creates a private right of action that, unlike exclusive enforcement by the FTC, would be far more likely to benefit the plaintiffs' bar than consumers.

With the vernal equinox exactly one week in the rear-view mirror, it remains possible that the working group will introduce (presumably preferable) comprehensive data privacy legislation this spring.

Time will tell.

House Commerce, Commerce Department Commence BEAD Reforms

Multiple efforts are underway to reform the beleaguered $42.45 billion Broadband Equity, Access, and Deployment (BEAD) Program.

Representative Richard Hudson (R-NC), Chairman of the House Energy and Commerce Committee’s Subcommittee on Communications and Technology – and Keynoter at the Free State Foundation's upcoming Seventeenth Annual Policy Conference – recently introduced legislation designed to "eliminate the burdensome Biden regulations so that we can get money out the door and shovels into the ground as soon as possible."

In his Opening Statement before "Fixing Biden's Broadband Blunder," a hearing held on March 5, 2025, Chairman Hudson unveiled the Streamlining Program Efficiency and Expanding Deployment (SPEED) for BEAD Act. In the accompanying Press Release, he pointed out that "not a cent of the BEAD funds have been put towards actual deployment for even one household. This is unacceptable. Our rural communities need to be fully connected, and this legislation will do that."

Specifically, the SPEED for BEAD Act would:

• Clarify that BEAD Program money is to be used for two purposes: broadband deployment and workforce development. Consistent with that refined focus, the bill would replace the word "Equity" with the word "Expansion" in the program's title.

• Expressly require the return to the U.S. Treasury of unused funds.

• Prohibit the consideration, when awarding grants, of the following: prevailing wages, project labor agreements, union workforces, collective bargaining, local hiring, commitments to union neutrality, labor peace agreements, workforce composition (or the reporting thereof), climate change, the regulation of network management practices (including data caps), open access requirements, and certain letter of credit requirements.

• Provide applicants greater flexibility with respect to service area.

• Expand the definition of "reliable broadband service," consistent with the principle of technological neutrality, to include "any broadband service that meets the performance criteria … without regard to the type of technology by which such service is provided."

• Expound upon the existing ban on the regulation of rates (see below).

Regarding rate regulation, the bill makes clear that neither NTIA nor the states may:

[R]egulate, set, or otherwise mandate the rates charged for broadband service or the methodologies used to calculate such rates, for consumers generally or for any subset of consumers, including through the capping or freezing of such rates, the encouragement of another entity to regulate such rates, or the use of rates as part of an application scoring process.

The SPEED for BEAD Act explicitly would ban any such forms of rate regulation even if approved prior to its enactment or adopted "in conjunction with the requirement to offer a low-cost broadband service option."

The same day, Secretary of Commerce Howard Lutnick issued a Statement announcing that:

Under [his] leadership, the Commerce Department has launched a rigorous review of the BEAD program. The Department is ripping out the Biden Administration's pointless requirements. It is revamping the BEAD program to take a tech-neutral approach that is rigorously driven by outcomes, so states can provide internet access for the lowest cost. Additionally, the Department is exploring ways to cut government red tape that slows down infrastructure construction.

Since the passage of the legislation that created the BEAD Program, the Infrastructure Investment and Jobs Act, in 2021, FSF scholars repeatedly have criticized the Biden Administration for its prioritization of extraneous policy preferences that discouraged proven broadband providers from participating, raised costs, and ground implementation to a standstill.

They include impermissible rate regulation, inappropriate labor- and climate-related mandates, the unjustified promotion of government-owned networks, and a pro-fiber bias that brazenly defied the statute's technologically neutral intent. 

 

House Commerce Privacy Working Group Seeks Input

In a February 2025 post to the FSF Blog, I reported on a press release from House Commerce Committee Chairman Brett Guthrie (R-KY) and Vice Chairman John Joyce, M.D. (R-PA) announcing the creation of a working group focused on federal comprehensive data privacy legislation. That working group is now asking interested parties to provide responses to a Request for Information (RFI).

Released on February 21, 2025, the RFI begins by acknowledging two points I have highlighted repeatedly in writings for the Free State Foundation, most recently in a December 2024 Perspectives from FSF Scholars.

One, that "the challenge of providing clear digital protections for Americans is compounded by the fast pace of technological advancement and the complex web of state and federal data privacy and security laws, which in some cases create conflicting legal requirements."

And two, that "Members of Congress have spent many years working toward federal comprehensive data privacy and security standards to bring consumer protections into the digital age while ensuring that the U.S. continues to lead in a globally competitive environment."

The information sought by the RFI is organized into the following six specific categories:

• Roles and Responsibilities: What types of entities collect, process, and sell personal information? What obligations should apply to each?

• Personal Information, Transparency, and Consumer Rights: What specific consumer protections should a privacy law include? What heightened safeguards should apply to sensitive personal information? How should covered entities provide disclosures to consumers?

• Existing Privacy Frameworks and Protections: What can be learned from the existing "patchwork" of state privacy laws? To what extent should a federal privacy law preempt state privacy laws?

• Data Security: How can federal lawmakers ensure the security of consumer data?

• Artificial Intelligence (AI): How might a federal privacy law account for existing state laws addressing AI, including those relating to automated decision-making?

• Accountability and Enforcement: What are the pros and cons of exclusive enforcement by the FTC and state Attorneys General? Should a federal privacy law include a safe harbor?

A seventh, catch-all, category encourages interested parties to submit "any additional information that may be relevant to the working group as it develops a comprehensive data privacy and security law."

Responses, due by April 7, 2025, should be emailed to PrivacyWorkingGroup@mail.house.gov.

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

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

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

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

Fortunately, there is reason for optimism.

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

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

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

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

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

House Commerce Hearing Critiques NTIA's Handling of BEAD Program

As I previewed in a Monday post to the Free State Foundation blog, the House Energy and Commerce Committee's Subcommittee on Communications and Technology the following day held a hearing on the status of the $42.45 billion Broadband Equity, Access, and Deployment (BEAD) Program. Participants had much to say about NTIA's management of the program, particularly with respect to timing, clarity, and the approval process.

Committee Chair Cathy McMorris Rodgers (R-WA) in her opening remarks focused on "NTIA's decision to pressure states to regulate the rates charged for broadband service," "unnecessary workforce and climate-related requirements," "an expensive fiber-first agenda," and "unnecessary delays in NTIA's approval process."

Subcommittee Chair Bob Latta (R-OH) touched on similar topics in his opening remarks – and expressed concern that "NTIA continues to add requirements that are contrary to Congressional intent and make this program less attractive and more expensive to the broadband providers needed to deploy to unserved and underserved communities."

In a Written Statement, Misty Ann Giles, Director of the Department of Administration and Chief Operating Officer for the State of Montana, characterized navigating the BEAD Program process as "akin to building a plane while flying it without having the necessary instructions to be successful" and complained that "Montana has often received conflicting or even new and changed guidance after submitting our plans or beginning a previously approved NTIA operational process."

One specific example provided relates to NTIA's recent guidance regarding "alternative technologies" such as satellites and unlicensed wireless. Many, including Committee Chair Rodgers and Subcommittee Chair Latta, support the use of these and other non-fiber distribution platforms in areas where the deployment of fiber would be prohibitively expensive. But Giles, echoing an argument I made a month ago in "BEAD Program Technological Neutrality 'Fix' Falls Short," a Perspectives from FSF Scholars, pointed out that "[w]hile much of the guidance is helpful and needed, it has come at the 11th hour for Montana."

Shirley Bloomfield, NTCA – The Rural Broadband Association CEO, testified that "several concerns, if not adequately addressed, could deter small, community-based providers from participating in BEAD." They include: the accuracy of the FCC's National Broadband Map, prohibitively large project areas, preferences based upon fund-matching ability, higher-than-expected costs and longer-than-expected permitting processes, and the uncertain fate of the Universal Service Fund.

Video of the hearing is available here.

House Commerce Subcommittee to Hold Hearing on BEAD Program

Tomorrow the House Energy and Commerce Committee's Subcommittee on Communications and Technology will hold a hearing titled "From Introduction to Implementation: A BEAD Program Progress Report."

In the hearing announcement, Committee Chair Cathy McMorris Rodgers (R-WA) and Subcommittee Chair Bob Latta (R-OH) state that the "hearing will serve as an opportunity to hear about how the implementation of the program is going, better understand the impact of NTIA's rules, and what to expect going forward as states begin to award funds."

Regarding rate regulation and the statutorily mandated "low-cost broadband service option," a concern Free State Foundation President Randolph May addressed in a Perspectives from FSF Scholars published earlier today, the accompanying Majority Staff Memo asserts that "NTIA is responsible for reviewing and approving these low-cost options and has used this requirement as a way to regulate rates. The Committee considers these rate regulated approvals to be a violation of the IIJA's rate regulation prohibition."

Other topics teed up by the Majority Staff Memo include the disconnect between the clear congressional goal of technology neutrality and NTIA's "fiber-first" bias; the need for permitting reform; and the implementation impact of labor, letter of credit, and Buy America requirements.

The following witnesses are scheduled to testify:

• Misty Ann Giles, Director and Chief Operating Officer, Montana Department of Administration
• Basil Alwan, Chief Executive Officer, Tarana Wireless
• Shirley Bloomfield, Chief Executive Office, NTCA – The Rural Broadband Association
• Blair Levin, Policy Analyst, New Street Research and Non-Resident Fellow, Metropolitan Policy Project, Brookings Institution

The hearing will begin at 10:30 am.

Will AI Help or Hinder Federal Privacy Legislative Efforts?

Efforts to pass a federal data privacy law have dragged on for many years. During that time, unrelenting technological advancement simultaneously has produced new innovations that amplify calls for clear rules and complicated congressional conversations that might lead to such legislation. Artificial Intelligence (AI) is the latest such instigator/troublemaker.

Generative AI offerings – such as OpenAI's ChatGPT, Google's Gemini, and Meta AI – depend upon Large Language Models (LLMs) trained on massive amounts of data. The more data used to train the LLM, the better the results. Consequently, generative AI raises substantial questions relating to privacy. (By way of example, the image below was created with OpenAI's DALL-E using the prompt "create an image of generative AI and data privacy.")

In her Opening Statement regarding a recent Senate Commerce, Science and Transportation Committee hearing titled "The Need to Protect Americans' Privacy and the AI Accelerant," Chair Maria Cantwell (D-WA) wrote that "[w]e are being surveilled … tracked online in the real world, through connected devices. And now, when you add AI, it is like putting fuel on a campfire in the middle of a windstorm." AI, she argued, "increases the need for passing legislation soon."

This heightened concern, however, to date has not generated legislative progress on data privacy. The American Privacy Rights Act of 2024, about which I wrote in "Congressional Leaders Return Privacy to the Front Burner," an April 2024 Perspectives from FSF Scholars, has yet to advance beyond a discussion draft. It was scheduled for markup by the House Energy and Commerce Committee on June 27, 2024, but that markup was cancelled at the last minute, a development I described in a post to the Free State Foundation's blog.

Prompting an unsettling sense of déjà vu, already one state has taken stalled congressional matters into its own hands. On May 17, 2024, Colorado Governor Jared Polis signed into law Senate Bill 24-205, "Concerning Consumer Protections in Interactions with Artificial Intelligence Systems."

Broadly speaking, Senate Bill 24-205, which goes into effect on February 1, 2026, requires that developers of "high-risk" AI systems "use reasonable care to protect consumers from any known or reasonably foreseeable risks of algorithmic discrimination."

We shall see if other states follow Colorado's lead – and, if so, whether another unwanted privacy-related "patchwork" emerges.

House Commerce, Commissioner Carr Target BEAD Program

In a June 2024 Perspectives from FSF Scholars, I focused a spotlight on insidious efforts by both the National Telecommunications and Information Administration (NTIA) and certain state-level bureaucracies to inject extraneous policy objectives like rate regulation and a fiber-at-any-cost bias – what I termed "devilish details" – into Broadband Equity, Access, and Deployment (BEAD) Program funding decisions. Recent news from the Hill and the FCC demonstrate that others share my concerns.

In a letter dated July 9, 2024, to NTIA Administrator Alan Davidson, House Energy and Commerce Committee Republican leaders wrote that "it appears that the NTIA may be evaluating initial proposals counter to Congressional intent and in violation of the law." And in written testimony prepared for a congressional hearing held that same day, FCC Commissioner Brendan Carr expressed his broad view that the BEAD Program "is going off the rails."

Noting the BEAD Program's unprecedented exemption from Freedom of Information Act (FOIA) requirements, House Energy and Commerce Committee Chair Cathy McMorris Rodgers (WA), Subcommittee on Communications and Technology Chair Bob Latta (OH), and Subcommittee on Oversight and Investigations Chair Morgan Griffith (VA) in their letter demanded greater visibility into why only 16 of the 56 initial proposals submitted by states and territories prior to year-end 2023 had been approved as of July 9, 2024. (The following day that total grew to 17 with the approval of Maryland's submission.)

In particular, the authors pointed to "anecdotal evidence" – the best available under the circumstances – indicating that NTIA "is directing [states] to set rates and conditioning approval of initial proposals on doing so." By way of example, they highlighted an objection by the Virginia Office of Broadband to NTIA's insistence upon "an exact price or formula" for its low-cost service option before its initial proposal would be approved, an impasse which I addressed here.

Chair McMorris Rodgers and Subcommittee Chairs Latta and Griffith therefore requested copies of "all communications between [NTIA] and state broadband offices as it relates to pending [BEAD Program] Initial Proposals" no later than July 23, 2024. They also sought information regarding "[t]he factors or conditions that are preventing state entities from having their initial proposals accepted," including "all instances where a state's initial proposal was not accepted … due in part to the BEAD's low-cost option requirement pricing as a factor in the decision."

The concerns of Commissioner Carr, meanwhile, include but are in no way constrained to rate regulation alone. Labeling the $42.45 billion BEAD program "the slowest moving federal broadband deployment program in recent history" – after nearly 1,000 days, "not one person has been connected to the Internet with those dollars" – he pointed the finger at the convoluted, multistep design of the program and reminded the Subcommittee that this "failure to launch is not only predictable, it was predicted" by various members of Congress.

(For the record, it also was predicted by numerous Free State Foundation scholars: member of the Free State Foundation's Board of Academic Advisors Michelle P. Connolly, Ph.D., FSF President Randolph J. May, FSF Director of Policy Studies and Senior Fellow Seth L. Cooper, and me.)

Laying the blame at the feet of the Biden Administration for "layering on red tape and advancing a wish list of progressive goals," Commissioner Carr faulted specific elements of the BEAD Program as implemented – but not found in the text of the Infrastructure Investment and Jobs Act that lead to its creation – that "pursue a climate change agenda, [diversity, equity, and inclusion] requirements, technology biases, price controls, preferences for government-run networks, and rules that will undoubtedly lead to wasteful overbuilding."

Consequently, Commissioner Carr predicted that, at the end of the day and after all the money is gone, households, particularly rural households, will remain unserved "absent major reforms" that reign in wasteful spending on unrelated Biden Administration priorities and remove unnecessary bureaucratic hurdles.

House Commerce Subcommittee to Hold Hearing on Video Marketplace

The House Energy and Commerce Committee's Subcommittee on Communications and Technology will hold a hearing tomorrow at 2 pm ET entitled "Lights, Camera, Subscriptions: State of the Video Marketplace." Promisingly, this hearing will focus, at least in part, on outdated regulations that inappropriately impede traditional video programming distributors' ability to participate in an increasingly competitive marketplace.

When announcing the hearing, House Energy and Commerce Committee Chair Cathy McMorris Rodger (R-WA) and Communications and Technology Subcommittee Chair Bob Latta (R-OH) stated the following:

Over the last decade, the video marketplace has undergone a transformative shift as more media content moves online. The introduction of streaming services expanded the options for consumers to choose where, when, and what content they view. While there is an unprecedented amount of content, like movies, TV shows, and news, available, the rise of these services creates challenges for traditional media providers who continue to compete despite being saddled with regulations. We look forward to discussing the evolution of this market, the steps Congress can take to ensure outdated regulations do not hinder innovation and competition, as well as how to bring the traditional marketplace into the 21st century.

Scheduled witnesses include:

• FuboTV Inc. Board Member and CEO David Gandler (witness testimony)
• National Association of Broadcasters President and CEO Curtis LeGeyt (witness testimony)
• Consumer Reports Senior Policy Counsel and Manager of Special Projects Jonathan Schwantes (witness testimony)
• America's Communications Association – ACA Connects President and CEO Grant B. Spellmeyer (witness testimony)

In a recent post to the Free State Foundation's blog, I presented the latest evidence of longstanding subscriber trends – specifically, that traditional video programming distribution platforms, both facilities-based and virtual, continue to shed customers while countless streaming services add them.

Consequently, and as I argued in "With Pay-TV on the Wane, Legacy Regulations Should Follow," a July Perspectives from FSF Scholars, "consumers have available more than sufficient choices to compel a comprehensive change in course away from government intervention … and toward the exclusive reliance upon efficiently operating market forces."

Perhaps tomorrow's hearing will serve as a significant step in that direction.

Reps. Doyle and Latta Lay Out Plan to Reform Spectrum Management

Earlier today, on its "Congress Blog," The Hill published an op-ed penned jointly by Representatives Michael F. Doyle (D – PA) and Robert E. Latta (R – OH). Determined to avoid a repeat of the recent kerfuffle between the FCC and the FAA over 5G mobile operations in the C-Band, the two lawmakers set forth a four-element plan to overhaul interagency spectrum coordination processes.

As you undoubtedly recall, earlier this year the launch by Verizon and AT&T of 5G using C-Band spectrum licenses for which they contributed billions to the U.S. Treasury was impacted when, at the eleventh-hour, the FAA raised aviation-related concerns.

This occurred even though, prior to auctioning that spectrum, the FCC undertook a lengthy, deliberate, and engineering-informed process that considered, and addressed, potential interference.

Over the last few years, other disagreements regarding FCC efforts to repurpose high-value, underutilized spectrum similarly have played out in unprecedentedly high-profile fashion. They include the L-Band (vis-à-vis the Department of Defense), the 5.9 GHz band (the Department of Transportation), and the 24 GHz band (NASA and NOAA).

In "Aviation conflict highlights the need for spectrum management reform," Representative Doyle, Chairman of the House Energy and Commerce Committee's Subcommittee on Communications and Technology, and Representative Latta, its Ranking Member, expressed their well-founded concern that "declining faith in how these decisions are made is beginning to show signs of jeopardizing the consumer and economic benefits we've enjoyed for generations."

In response, the two laid out four principles that will guide their bipartisan efforts to "pursu[e] public oversight and restor[e] trust in the spectrum management process."

Those principles are as follows:

1. Reassert that it is NTIA that has the responsibility "to balance the needs and concerns of federal spectrum users, and to communicate those interests to its governmental counterparts and the public."
2. Promote "clear rules and expectations for federal and other spectrum users."
3. Ensure "that the government process for managing these critical spectrum resources [relies] on science and engineering …, not the institutional interests of a single federal agency."
4. Prioritize "the finality of [spectrum management] decisions."

Randolph J. May, the Free State Foundation's President, and Seth L. Cooper, its Director of Policy Studies and a Senior Fellow, made a number of similar points in "Congress Should Require Better Agency Coordination on Spectrum Policy," a February 15, 2022, Perspectives from FSF Scholars.

Specifically, Mr. May and Mr. Cooper (1) urged NTIA and the FCC to update their spectrum coordination Memorandum of Understanding to "expressly acknowledge NTIA's role in representing all executive branch agencies," (2) argued that "Congress should pass legislation to improve coordination among federal agencies," (3) noted with concern how the status quo "risks causing unnecessary delay and regulatory uncertainty," and (4) concluded that an improved process "could provide greater assurance to the public."

Privacy Recap: Biden Nominates Bedoya to FTC, House Commerce Committee Proposes $1B for New Privacy Bureau

It's not yet Wednesday, and already it's been an eventful week with respect to the FTC and data privacy.

First, President Biden on Monday nominated Alvaro Bedoya to be the third Democrat to serve as a Commissioner at the FTC. The official announcement by the White House states that "[h]is research and advocacy focus on the idea that privacy is for everyone" and touts his work on facial recognition technology.

Mr. Bedoya is a visiting law professor at Georgetown Law, where he serves as the founding director of the Center on Privacy & Technology.

Republican Commissioner Noah Phillips tweeted that "Alvaro would bring a bright and thoughtful voice and a depth of experience working across the aisle on privacy to the FTC."

Second, the House Committee on Energy & Commerce yesterday began a full committee markup of the so-called Build Back Better Act, a series of legislative recommendations for budget reconciliation.

Today, lawmakers are expected to consider Subtitle O, which would appropriate $1 billion over the next ten years to fund a new Privacy Bureau at the FTC "to accomplish the work of the Commission related to unfair or deceptive acts or practices relating to privacy, data security, identity theft, data abuses, and related matters."

News reports suggest Republican opposition to this proposal, including its hefty price tag, which totals nearly three times the agency's budget for fiscal year 2021: $351 million.

At the same time, politicians from both sides of the aisle continue to agree on the persistent and distinct need for federal privacy legislation.

In the Politico piece linked to above, a Republican committee aide speaking anonymously emphasized the importance "of passing actual legislation with real privacy protections for all Americans."

Likewise, Democratic Senator Maria Cantwell (WA) tweeted that the proposal is "an important step for protecting consumers," but also that she "will continue to fight for a federal privacy and data security law that protects consumers and creates certainty for businesses."

In a recent Perspectives from FSF Scholars, "Pressures Multiply for Congress to Act on Data Privacy," I listed the mounting pressures on Congress to adopt a comprehensive federal data privacy regime, which include the following:

• Three states (California twice, Virginia, and Colorado) so far have passed inconsistent laws that unnecessarily create costly headaches for businesses and confusion for consumers.
• The European Union (EU) has in place the General Data Protection Regulation (GDPR) and, in August, China adopted the Personal Information Protection Law.
• Cyberattacks, including one involving the information of over 50 million consumers discovered in August by T-Mobile, call out for a comprehensive data privacy regime.
• The lack of a federal data privacy law impedes efforts to reestablish a privacy shield for personal data transfers from the EU to the U.S.

I therefore suggested that legislation along the lines of the Setting an American Framework to Ensure Data Access, Transparency, and Accountability (SAFE DATA) Act, reintroduced this session by Republican Senators Roger Wicker (MS) and Marsha Blackburn (TN), might serve as a promising starting place.

Relatedly, in a December 2019 piece for the Free State Foundation entitled "Federal Privacy Legislation: Bipartisan Discussions Devolve into Dueling Drafts." I compared an earlier iteration of the SAFE DATA Act favorably to the Consumer Online Privacy Rights Act, rival legislation cosponsored by Senator Cantwell.

Congressional Testimony of FTC Commissioner Wilson Addresses Agency Processes, Section 13(b), and Federal Privacy Legislation

On Wednesday, July 28, FTC Chair Lina Khan and Commissioners Noah Joshua Phillips, Rohit Chopra, Rebecca K. Slaughter, and Christine S. Wilson testified before the House Committee on Energy & Commerce's Subcommittee on Consumer Protection and Commerce.

The hearing, entitled "Transforming the FTC: Legislation to Modernize Consumer Protection," focused on 16 different proposed bills.

In her Oral Statement, Commissioner Wilson focused on three topics: process issues that have arisen at the agency, possible amendments to Section 13(b) of the FTC Act in the wake of a recent Supreme Court decision limiting the Commission's authority thereunder, and the need for a federal data privacy law.

First, Commissioner Wilson argued that, with respect to the recent handling of agency business, "traditions and norms have been jettisoned…. [P]ractitioners, academics, and former enforcers across the political spectrum have expressed concern about the agency's abrupt departure from regular order and … I share these concerns."

As a consequence, she professed "fear that some of the [proposed] bills would give authority to the FTC that ultimately would result in stifled competition and innovation to the detriment of American consumers, U.S. industries, and our economy."

In doing so, she made reference to her:

• Dissenting Statement regarding those actions taken along party lines at the July 1 Open Commission Meeting, including the decision to rescind the 2015 Statement of Enforcement Principles Regarding "Unfair Methods of Competition" Under Section 5 of the FTC Act, and
• Oral Remarks objecting to the majority's rescission of the 1995 Policy Statement Concerning Prior Approval and Prior Notice Provisions in Merger Cases at the July 21 Open Commission Meeting, about which I wrote in a post to the Free State Foundation's blog.

Second, she addressed how Congress might respond to the Supreme Court's holding in AMG Capital Management, LLC v. FTC that Section 13(b) does not permit the FTC to obtain equitable monetary relief in federal district court.

Maintaining that "legitimate concerns of stakeholders can be addressed while also restoring the ability of the FTC to use Section 13(b) to pursue wrongdoers," Commissioner Wilson offered several suggestions to constrain Commission authority, including a statute of limitations.

Third, Commissioner Wilson reiterated her call for federal privacy legislation that preempts state laws like those adopted in California, Virginia, and Colorado: "Businesses need clarity and certainty regarding the rules of the road in this important area…. Even more importantly, consumers need clarity regarding how their data is collected, used, shared, and monetized."

In a July 15 post to the FSF Blog, I reported that Commissioner Wilson, as of June, had "reluctantly come to consider whether we should begin a privacy rulemaking proceeding at the Federal Trade Commission." In light of the process issues noted above, however, she is now "less inclined to support a [Magnuson-Moss rulemaking under Section 18 of the FTC Act] on privacy."

Video of the hearing is available here.

Congressman Bob Latta Delivers Keynote Address on May 24, 2021 – Register Now!

                               Free State Foundation

Thirteenth Annual Policy Conference

REGISTER NOW!

Congressman Bob Latta, Republican Leader of the House Subcommittee on Communications and Technology, Delivers Keynote Address

WHAT: FSF's Thirteenth Annual Policy Conference – Keynote Address

WHERE: Via Zoom

WHO: Congressman Bob Latta, Republican Leader of the House Subcommittee on Communications and Technology

WHEN: Monday, May 24, 2021, 9:30 – 10:30 a.m. EDT 

As part of the Free State Foundation's Thirteenth Annual Policy Conference, Congressman Bob Latta will present a Keynote Address on May 24, 9:30 – 10:30 a.m., via Zoom. Congressman Latta is the Republican Leader of the Subcommittee on Communications and Technology, a subcommittee of the House Committee on Energy and Commerce.

You will receive the Zoom link when you register!

The Free State Foundation's Annual Policy Conference is widely acknowledged to be one of the nation's premier communications law and policy events, and - just as we have every year - we intend this year to present interesting, informative, and impactful programs.

As in previous years, a truly outstanding lineup of senior officials and prominent experts from the FCC, other government agencies, industry, academia, and think tanks is discussing and debating the most important communications and Internet policy issues of the day.

MARK YOUR CALENDAR NOW FOR MAY 24!

TWITTER: FSFConf13

REGISTER NOW!

Agreement Reached on Definition of Small ISP

On February 25, 2016, the House Energy and Commerce Committee reached a unanimous agreement on the definition of a small Internet service provider (ISP) within the Small Business Broadband Deployment Act. This bill would exempt small businesses from enhanced transparency requirements imposed in the FCC’s Open Internet Order. The Committee defined a small ISP as 250,000 subscribers or fewer, while the FCC’s Open Internet Order originally had a transparency exemption for ISPs with 100,000 or fewer subscribers or 1,500 or fewer employees. The bill also includes a sunset for the exemption after five years.

Although the Small Business Broadband Deployment Act still needs to pass the full House and Senate before the President signs it, bipartisan support is encouraging. Small businesses often are harmed the most by unnecessary regulations. Because this bill would diminish the regulatory burden of the FCC’s transparency requirements, its passage would be a win for competition and consumers.

By the way, this is the first time that Democrats and Republicans have agreed on any measure to pare back the FCC's over-reaching Open Internet Order. Perhaps this is a good portent!

A "Shot Clock" Would Streamline Broadband Deployment on Federal Land

On October 28, 2015, the Subcommittee on Communications and Technology within the House Committee on Energy and Commerce held a hearing titled “Breaking Down Barriers to Broadband Infrastructure Deployment.” The hearing focused on six different proposals, which are all summarized in the hearing’s background memo. These six drafts represent a positive step towards reducing regulatory barriers and incentivizing more broadband deployment.

One of the big issues that is addressed in several of the discussion drafts is the costly approval process of deploying broadband infrastructure on federal land. Scott Bergmann, VP of Regulatory Affairs at CTIA - The Wireless Association, said in his written testimony that 28 percent of land in the United States is held by the federal government, along with thousands of federal buildings across the country. But he said the approval process to install broadband infrastructure on federal property can take many years.

Chairman Walden gave an example from his district. The town of Mitchell, Oregon has waited two and a half years for permission from the Bureau of Land Management to deploy four power poles so the town can have three-phase electric power. If it takes that long for permission to build electrical infrastructure, it probably takes even longer for permission to build broadband infrastructure.

While the draft legislation would help streamline federal permitting processes, it would not implement a “shot clock” for the review process. Mr. Bergmann said that this simple change would streamline deployment tremendously and has helped broadband providers at local levels. In 2009, the FCC initiated rules which require municipalities to respond to broadband deployment applications within 90 or 150 days, depending on the type of request. In 2012 as part of the Middle Class Tax Relief and Job Creation Act, Congress required states and municipalities to allow any “modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.”

Mr. Bergmann asked Congress to adopt legislation that would create deadlines for federal agencies to respond to requests to deploy on federal lands, buildings, or other properties. Sometimes the only way to reach rural consumers is through federal property. Without undermining national security or other important federal projects, this small change would have very large effects. Not only would this increase revenue for the federal government because providers would pay for access, but it would increase the quality of Internet access for military bases, tribal lands, and other remote areas.

Mr. Bergmann stated that “sound infrastructure policy is a necessary complement to good spectrum policy.” Of course, more spectrum is needed in order to keep up with projected mobile demand. But, in the meantime, reducing infrastructure barriers is a technology-neutral government action. Implementing a “dig once” policy (proposed in one piece of draft legislation) would lower the construction costs of broadband deployment for all broadband technologies, and implementing a shot clock for federal agencies would lower administrative costs, helping wireless and wireline providers reach underserved areas.

In general, it is an important and positive step to see draft legislation that would reduce infrastructure barriers because such legislation would avail resources that providers can use to better serve consumers.

FSF President Randolph May Testifies in House Hearing on the Evolution of Wired Communications Networks

 Yesterday, Free State Foundation President Randolph J. May testified before the House Subcommittee on Communications and Technology. The topic of the Subcommittee hearing was “The Evolution of Wired Communications Networks,” and the object of the session was to discuss proposals on how to best facilitate and complete the transition from copper-based time-division multiplexed ("TDM") services to digital broadband Internet Protocol (“IP”) services. Mr. May testified in favor of a free-market oriented approach to the transition, which would promote continued investment in the new networks, and remove unnecessary roadblocks to development and build-out. Mr. May testified that the FCC should not apply the out-dated public utility-style common carrier model to new IP-based networks: “The FCC and Congress should not look at the inevitable IP-transition just as an opportunity to implement a new free market-oriented regime fit for the digital age. Given the stakes, implementing such a new paradigm should be viewed as a necessity.”

House Unanimously Passes FCC Consolidated Reporting Act

This week, the House unanimously passed the FCC Consolidated Reporting Act (H.R. 2844) in a 415-0 vote, with 227 Republicans and 188 Democrats voting yea. The legislation requires one Communications Marketplace Report instead of the eight separate reports previously required, and it also strikes redundancies and outdated references in the Commission’s reporting requirements.

Representative Steve Scalise kicked off the House debate on Monday by stating: “This bill is another step in the process of streamlining government so that businesses can focus their time and resources on growing our economy and creating jobs, instead of complying with outdated and burdensome mandates from the federal government.”

Free State Foundation President Randolph May called for the passage of the Consolidated Reporting Act in his testimony at the July hearing before the House Subcommittee on Communications and Technology entitled, Improving FCC Process. May stated:

“I wholeheartedly support new Section 14, the proposed Federal Communications Commission Consolidated Reporting Act of 2013. The required consolidated report would replace the myriad of existing sector and technology-specific marketplace reports that the Commission is now required to compile on a periodic basis. Consolidation of the various competition/marketplace status reports should help reduce the agency's workload somewhat because there necessarily is some inherent duplication in producing the half dozen or more separate reports. But, more importantly, the requirement to produce a consolidated report should steer the Commission away from its pronounced tendency to view the separate technology-based services as confined to their own "smokestacks" and non-competitive with each other. In today's competitive digital services environment characterized by convergence, adhering to the "smokestack" view inherently neglects marketplace realities. For example, the Commission still refuses to acknowledge the extent to which wireless services compete with wireline services, even though nearly 40% of U.S. households have abandoned landline telephone service.

The draft bill requires the Commission to assess competition in the communications marketplace, taking into account all the various services and technologies, and it specifically directs the agency ‘to consider the effect of intermodal competition, facilities-based competition, and competition from new and emergent communications services, including the provision of content and communications using the Internet.’ This requirement is especially important as part of the necessary effort to get the FCC to take a more realistic, economically rigorous, view of the extent to which competition now prevails in the communications marketplace.”

FCC Commissioner Ajit Pai said in a statement Tuesday, “this is straightforward, good-government legislation, and I hope that the U.S. Senate will act quickly to send this bill to the President for his signature.”

I agree.