Gene Simmons is Right: Pass the AMFA Now!

Gene Simmons, the co-founder and bass player for KISS, the iconic rock band, has a short but important op-ed in today's Wall Street Journal. The title, "EU and Big Radio Gun for Musical Artists," may be eye-popping in keeping with Gene Simmons' persona, but the message is on point.

 

The op-ed explains that the U.S. is one of the few developed countries in the world that allows AM and FM radio stations to play music without paying royalties to the songwriters and performers. In 2020, the European Court of Justice held that radio stations in EU countries had to begin paying American artists when they played their songs. According to Mr. Simmons, music artists are receiving nearly $300 million per year in royalties as compensation for playing their works. But now, the EU is threatening to cut off those payments under what it calls "material reciprocity." In the U.S., the radio broadcasters continue to refuse to pay royalties on the artists' copyrighted songs, so the Europeans say they may cease payments.

 

Mr. Simmons urges that Congress pass the American Music Fairness Act. The legislation would require the payment of performance royalties by large national radio station groups in the U.S., while requiring minimal royal payments from small local broadcasters. Free State Foundation scholars have been urging passage of the AMFA for years. It's not fair for American songwriters and performers not to be compensated for their copyrighted work – the product of their labor, which is their livelihood. That's the "fairness" aspect of the AMFA.

 

But in a very important sense it's also not very American either. The U.S. Constitution's Copyright Clause gives Congress the power, "in order to promote the Progress of Science and useful Arts," to grant artists the "exclusive Right" to their works. This exclusive right is intended to ensure that artists are compensated for their creative labors by securing copyrights. Indeed, Intellectual Property rights are the only "Rights" actually recognized in the Constitution of 1787.

 

So, in this year in which we are celebrating America's 250^th birthday, with the Declaration of Independence and the Constitution as foundational backdrops which undergird the success of the American experience, there should be even more urgency for Congress to pass, and for President Trump to sign, the American Music Fairness Act.

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."  

PRESS RELEASE: "Misusing 'Affordability' in Broadband Subsidies Is Wrong"

 

The following statement should be attributed to Free State Foundation President Randolph May regarding a proposed bill titled ‘‘Prioritizing Rural Broadband Affordability Act" introduced by Rep. April McClain Delaney (D-Md.) and Rep. Rob Bresnahan (R-Pa.):

“This bill, which requires the Agriculture Department to consider ‘affordability’ of broadband service in determining whether an area is ‘unserved,’ is unnecessary, unworkable, and mischievous. The bill lacks a definition of ‘affordability,’ nor could one be formulated administratively that would be efficient and not invite waste of taxpayer dollars. More fundamentally, whether an area is unserved should not be linked to an ‘affordability’ determination. Concerns regarding ‘affordability’ properly should be addressed through provision of targeted support to low-income households.

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.

 

Using the BEAD Savings to Eliminate Mobile Dead Zones

Since being nominated by President Trump and confirmed by the Senate to be Assistant Secretary of Commerce for Communications and Information and Administrator of the National Telecommunications and Information Administration (NTIA) in July 2025, Arielle Roth has been doing an excellent job in reforming the Broadband Equity, Access, and Deployment (BEAD) program. The $42.45 billion program is intended to subsidize broadband deployment to unserved and underserved areas.

For several years after Congress authorized the BEAD program, it languished under the Biden administration, encumbered by costly extraneous requirements that delayed development of the state plans that were required to be approved to distribute the funds in each state. Even before Administrator Roth assumed office, the Department of Commerce, under the leadership of Secretary Howard Lutnick, required changes to the Biden administration's BEAD rules. These critical Trump administration reforms, implemented by Administrator Roth, in short order led revisions in the state plans that produced substantial "Benefit of the Bargain" cost savings in the states' deployment proposals. This has resulted in a $21 billion surplus. The abandonment of the Biden administration's unreasonably presumptive preference for funding fiber-only deployments, regardless of cost, in favor of a more economically efficient rational technology-neutral approach, played a significant role in producing the surplus.

Administrator Roth is now considering how the $21 billion in savings attributable to the "Benefit of the Bargain" process should be used to best serve the American people.

Along with me, my Free State Foundation colleague Andrew Long has played a key role in advocating reforms to the BEAD program during the Biden administration years, most of which have been adopted by Secretary Lutnick and Administrator Roth. Now, in a recent FSF Perspectives, Mr. Long recites some of the acceptable uses that should be considered for expenditure of the BEAD surplus, including, for example, establishing a reserve fund to ensure the deployment job would be finished, enhancing public safety, and improving the permitting process.

Here I want to call attention to another suggestion deserving serious consideration – T-Mobile's proposal to allow states to use a portion of the BEAD surplus to "End Mobile Dead Zones." T-Mobile proposes that no more than $8 billion should be used to close remaining rural dead zones. According to John Saw, T-Mobile's President and CTO, T-Mobile's analysis shows that, with the capped $8 billion, about 6,000 more mobile macro sites could extend 5G coverage to roughly 99% of Americans, including key rural roads. Using a portion of the BEAD funds this way, to support a national mobile infrastructure program, would alleviate the need for a new USF 5G fund. And by extending 5G coverage to rural locations still lacking it, public safety would be enhanced by eliminating remaining mobile connectivity gaps.

If I had my druthers, I would prefer returning a significant portion of the $21 billion in cost savings to the U. S. Treasury for the benefit of America's taxpayers. Regardless of whether or not that's in the cards, T-Mobile's proposal to use no more than $8 billion of the surplus to build out mobile macro sites to close remaining rural dead zones is certainly worthy of serious consideration. 

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.

 

The Proposed Railway Safety Act Is Highly Problematic

Yesterday's lead editorial in the Washington Post, "Legislators Think They're Making Trains Safer. They're Not," is spot on. It explains why it would be wrong for Congress to adopt the highly problematic Railway Safey Act as it now stands. And it shows how seemingly well-intentioned "feel good" regulatory measures not only may not resolve the issues they supposedly are intended to address, but rather actually may depress overall consumer welfare and suppress economic efficiencies.

 

The Railway Safety Act was first introduced in 2023 after the East Palestine, Ohio, train accident that led to chemicals being vented and burned. Not surprisingly, there was serious environmental damage due to the escaping chemicals. Perhaps it is also not surprising that legislators felt compelled to react by "doing something."

But, as the Post editorial explains, the bill that the Trump administration is now endorsing is not the proper response. Without addressing any rail safety issues that are rationally related to the causes of the train derailment, the bill would add costly unrelated mandates that, as the Post puts it, "would drive costs higher and slow innovation." Several of the proposed new regulatory mandates, such as requiring the use of certified mechanics and government-directed train crew sizes, respond to union demands. In the meantime, Norfolk Southern already has addressed all four recommendations made to it by NTSB's after-accident report, while federal government has yet to implement any of the ten recommendations made to it.

 

There are lessons here that go beyond getting any proposed rail safety legislation right, although that is obviously important. Of utmost importance, as the Post says, "[r]egualtion should be based on evidence, especially when it could be costly." And it's important for the government not to issue new mandates that are not related in a rational way to addressing the issues supposedly at hand.

 

And, finally, as the editorial points out, by several measures, "including the rates of derailments and employee injuries, 2025 was the safest year on record." It makes sense for the Trump administration to reconsider its support for the Railway Safety Act as it now stands.

Arielle Roth's Spirited Defense of Free Speech

 On February 25, in an address at the Media Institute, NTIA Administrator Arielle Roth delivered a spirited defense of free speech. Such a defense is always welcome at any time. But now, while America is in the midst of celebrating our 250^th birthday, and while, at the same time, there are threats to free speech around the globe, Administrator Roth's address is especially welcome.

 

To provide a framework for her remarks, Ms. Roth began this way:

"In the 250 years since our founding, technology has repeatedly transformed speech—from the printing press to radio, from the telegraph to the telephone, and from the television to the global internet. 

Every major advancement in communications technology has shifted who holds power over speech. In our current age, that increasingly means that whoever controls communications technology controls the boundaries of free expression. Today, that struggle plays out not only at the edge of the network but deep in the infrastructure layers—in spectrum policy, standards bodies, satellite governance, AI systems, and network architecture. 

That is also why communications policy—especially international communications policy—is now a central battleground for free speech."

And then this:

"The internet is the most powerful engine of free expression ever created. It amplifies individual voices, dismantles gatekeepers, enables journalists to expose corruption, and helps dissidents organize. 

That is no accident. The internet is what it is today because it was built in America under American legal traditions, powered by American ingenuity, and protected by the First Amendment. It rests on principles of openness, decentralization, and a private sector-led model that resists control by any single government or treaty regime."

Having set the stage, the remainder of Ms. Roth's address, with impressive clarity, details some of the threats to free speech from around the world – including from friendly nations that, at times, perversely, justify suppressing speech their governments disfavor in the name of promoting other values or supposed "truths." And she also explains why protection of free speech depends on freedom from government intervention in the various layers or "stacks" of the Internet's architecture.

There's a rich discussion of threats arising from some countries wishing to change the governance model of the ITU in ways that would give the international organization more authority to control speech in individual nations. And a look ahead at technological developments, and policy disputes, in the satellite and wireless areas that will be crucial to maintaining the U.S. global leadership.

I will say no more here, except that it's well worth your time to read Administrator Roth's address in its entirety.

Senate Hearing Should Consider Replacing the Public Interest Standard

By Randolph May

On December 17, the Senate Commerce, Science, and Transportation Committee is holding an FCC oversight hearing. Conducted properly, oversight hearings can be valuable tools in assisting legislators, and the public too, in understanding an agency's work – what an agency is doing, and why. And, sometimes, an oversight hearing can lead to the subsequent introduction of legislation to reform the agency's enabling statute.

That should be the case regarding the Communications Act – specifically legislation replacing the public interest standard.

But it's a good bet that some Democrats on the committee, perhaps all of them, will use most of their allotted time to lambaste FCC Chairman Brendan Carr, especially regarding his remarks in "l'affaire Jimmy Kimmel." Without rehearsing all the details here, you'll recall that Chairman Carr issued what was reasonably taken to be a threat that, unless Kimmel's show was taken off the air, the broadcast station owners airing it would suffer adverse consequences. After all, by virtue of the licenses the FCC issues requiring that broadcasters operate consistent with the "public interest," the agency exercises substantial power over their operations. And if broadcasters wish to transfer or assign their licenses to another entity, the FCC first must find the transaction is in the "public interest."

At the time of Chairman Carr's remarks regarding Jimmy Kimmel, I said that, regardless of whether they rose to an actual violation of the First Amendment, and despite what I considered to be Kimmel's factually inaccurate and insensitive monologue regarding Charlie Kirk's assassination, I didn't like what appeared to be Carr's threats directed at the broadcasters. I stand by that.

But when the Democrats and those on the Left get in high dudgeon railing at Carr at the hearing or otherwise, the theatre is a bit too contrived. For over the long history of the FCC, it's been Democrats in Congress, and those sitting on the FCC, who have been most persistent and insistent in wielding the FCC's public interest authority to dictate or influence broadcast content. I recited some of the historical evidence here. And, significantly, it was a Democrat-controlled FCC that employed the "Fairness Doctrine," with its requirement that broadcasters present balanced coverage of issues of public importance, as a content regulation sword. Most notably, the Fairness Doctrine was invoked, successfully, to silence conservative broadcasters. See Red Lion Broadcasting v. FCC – which now is ripe for history's constitutional dustbin.

 

Moreover, with the current focus on the FCC's "news distortion" rule – a prohibition grounded in the FCC's public interest authority – it's worth recalling the April 2018 letter to then-FCC Chairman Ajit Pai signed by twelve Senate Democrats. That letter urged the FCC to consider sanctioning Sinclair Broadcasting Group, including revoking its broadcast licenses and preventing it from acquiring others, allegedly on the basis that Sinclair stations engaged in "news distortion" inconsistent with its public interest obligations. (Some of the twelve Senators who signed that April 2018 letter likely will participate in the December 17 oversight hearing.)

Nevertheless, my purpose today is not to tote up a scorecard demonstrating that one side of the aisle or the other, either political or philosophical, has abused the public interest standard more than the other side. That's backward-looking and likely counterproductive. Rather, consistent with the legislative purpose of an oversight hearing, I want to suggest – as I have many times previously –a more productive way forward.

The Commerce Committee Senators, led by their able, reformist-minded Chairman Ted Cruz, should use the oversight hearing, at least in part, to begin a serious discussion about replacing the FCC's public interest standard, upon which the agency's program content regulation, including its news distortion rule, is grounded. It should be replaced with some form of consumer welfare standard more attuned to the current competitive environment and technological dynamism of the marketplace. To the extent there are special considerations, such as maintaining the availability of communications relating to public health and public safety, or universal service, they can be delineated and dealt with discretely.

As I recounted recently in this recent FSF Perspectives, The Public Interest Standard: The Historical Legislative Context, "for almost two decades now, Free State Foundation scholars have been advocating that any meaningful updating of the Communications Act must include replacement of the public interest standard with one oriented towards a proper assessment of consumer welfare and marketplace competition." You can find links to that advocacy in that paper. And throughout the FCC's website you can find numerous papers each year documenting the dramatic changes, driven by relentless technological innovation, that have occurred in the media and telecommunications marketplace in the last several decades.

The long and short of it is that these conspicuous marketplace changes have rendered obsolete the original anti-monopoly and "scarcity" rationale that was the principal impetus for inclusion of the public standard in the Communications Act of 1934, which itself merely incorporated the standard from even earlier legislation.

The public interest standard, malleable and ambiguous as it is, has been a ready means for expanding the FCC's authority in the hands of those commissioners who wish to use it for that purpose. And, more particularly, for those who wish to use it in this way, it has been the means by which the agency has restricted speech, or preferred some speech over other speech, by regulating program content or threatening to do so. All under the claim of furthering the "public interest."

As far back as 2001, I argued in a law review article that the public interest standard is so indeterminate that it constitutes an unconstitutionally unintelligible delegation of legislative authority. The Supreme Court has yet to agree, but I suspect that Chairman Cruz might be sympathetic to the argument. Justice Felix Frankfurter, a New Deal acolyte, proved my point over six decades earlier in the landmark FCC v. Pottsville Broadcasting Co. (1940) case when he declared that the public interest standard "is as concrete as the complicated factors for judgment in such a field of delegated authority permit."

Read Justice Frankfurter's elucidation again. I challenge you to tell me what it means.

In other words, the public interest standard is standardless. And this means it is inconsistent with the rule of law and invites abuse. The Senate Commerce Committee should begin to consider replacing it with some form of consumer welfare standard fit for the Digital Age.

FSF Announces the Appointment of Joseph V. Kennedy as Director of Policy Studies and Senior Fellow

Free State Foundation President Randolph May announced on December 4, 2025, that Joseph V. Kennedy, an accomplished economist and lawyer with deep public policy expertise and experience, is joining FSF on a full-time basis as Director of Policy Studies and Senior Fellow, effective January 1. 

Previously, Mr. Kennedy served as Senior Principal Economist at the MITRE Corporation. Prior to that, he served as a Senior Fellow at the Information Technology and Innovation Foundation. Mr. Kennedy’s former positions include serving as a Senior Officer at The Pew Charitable Trusts; Chief Economist for the U.S. Department of Commerce; Senior Economist for the U.S. Congress Joint Economic Committee; and General Counsel for the U.S. Senate Permanent Subcommittee on Investigations. He is also an Adjunct Professor at Georgetown University.
 
Dr. Kennedy received his Ph.D. in Economics from George Washington University, his M.S. in Agricultural and Applied Economics from the University of Minnesota, and his J.D. from the University of Minnesota. He received his B.S. in Foreign Service from Georgetown University. Mr. Kennedy has written two books and more than 70 articles. He has provided legal and economic advice to members of Congress, Cabinet secretaries, and top business executives. Much of this advice has been directed at public policies involving technology, competitiveness, and the social contract.
 
In announcing Dr. Kennedy’s appointment, Mr. May stated: “I am very excited that Joe Kennedy is joining the Free State Foundation as Director of Policy Studies and Senior Fellow. With his outstanding academic background in both economics and law, and his real-world professional experience in both disciplines, Joe will play a major role in leading FSF’s law and policy work in the communications, Internet, intellectual property, and other related fields. FSF already is widely acknowledged for its thought leadership in these areas, and in his senior position, Joe will further enhance our leadership position.”
 
Upon accepting FSF’s offer, Mr. Kennedy stated: “I am thrilled to be joining an institution that is so highly regarded for the quality and impact of its free market-oriented work. My goal is to use my decades of expertise and experience in law and economics to help make FSF even stronger and even more respected than it already is and to help expand its work into related fields. I look forward to the challenge ahead.”

Traveling Backwards in Time: The Public Knowledge Petition to Deny the Charter – Cox Transaction

 by Randolph May

As predictable as the sun rising tomorrow morning, Public Knowledge and like-minded organizations have filed a petition to deny the proposed acquisition of Cox Communications by Charter Communications. The pro-regulatory groups contend that, if approved, the combination "would reshape the American broadband landscape" and "would create unchecked gatekeeper power over Internet distribution."

Unchecked gatekeeper power? Reshape the American broadband landscape? 

Public Knowledge and the co-signers must have pushed the wrong button in a time-travel machine, for they are surely looking backwards regarding the current state of the communications and media environment. In the process, they may have set a new low bar for extreme hyperbole.

We'll have more to say about the Public Knowledge petition and the FCC's consideration of the Charter – Cox transaction going forward. For the moment, I refer you to the comments submitted by the Free State Foundation and this Free State Foundation Perspectives authored by Daniel Lyons, a member of FSF's Board of Academic Advisors. They completely refute any notion that a combined Charter – Cox would possess any "gatekeeping" power over Internet distribution. And they demonstrate how dramatically the communications and media landscape already has been "reshaped" by vigorous competition among cable, fiber, satellite, fixed wireless, wireless, and hybrid facilities-based platforms – and continues to be reshaped, even as I write.

 

If approved by the Commission, the combination of Charter and Cox, "each now struggling with the challenge of competing in multiple maturing markets," as Daniel Lyons put it, will have an opportunity to survive and provide further competition in an already competitive intermodal marketplace.

Oh, while in the time-travel machine looking backwards, please recall the notorious AOL – Time Warner merger. Some of the very same signers of the petition to deny Charter – Cox petitioned to deny the AOL – Time Warner combination. The rhetoric – extreme hyperbole, you could say – regarding the supposed harms to consumers were that merger to be approved by the FCC was over-the-top.

The petition to deny the AOL – Time Warner merger described the "dangerous new dimension" being added to "the emerging structure of the cable TV/broadband Internet industry…." Among the "findings" cited in their petition: "The merger would allow two enormous firms to dominate the markets for broadband and narrowband Internet services, cable television, and other entertainment services, which could leave consumers with higher prices, fewer choices, and the stifling of free expression on the Internet." The petition claimed that the new "media giant" would "be able to quickly capture the new product market for interactive TV."

Well, the FCC approved the AOL – Time Warner merger…and you know how that combination worked out. We've seen this movie – I mean petition to deny! – before. Talk of "gatekeeper power" may have been slightly relevant in the early 2000s. Now it's downright frivolous.

It's time for Public Knowledge and the other like-minded groups to stop looking backwards through the looking glass and acknowledge the current marketplace reality.

USTelecom Report: Broadband Investment Continues to Rise Rapidly

USTelecom – The Broadband Association is out with its annual report on investment in communications infrastructure by U.S. broadband providers. For 2024, the report documents that America's broadband providers invested $89.6 billion in new infrastructure. This brings the total capital expenditure investment in broadband facilities since 1996 to more than $2.2 trillion.

That's a huge amount of capex for 2024 and since 1996. As far as I know, no one has seriously questioned the validity of USTelecom's annual investment reports.

It's not news that it is very expensive – very capital intensive – to meet America's expanding need for fast, reliable, and secure broadband networks. That's what the USTelecom reports have documented over the last three decades. Certainly, America's broadband networks will be essential to enabling and facilitating the burgeoning use of AI. America's economic security will depend on it.

Of course, there is an important policy context that undergirds any discussion of the role of broadband – and continued broadband investment – in America's economy. Given the competitive environment that exist today, there certainly is no need for adoption of any heavy-handed regulatory mandates such as the now eliminated "Net Neutrality" regulations. They stifle investment and innovation, rather than promoting it.

And there is a need to remove permitting and other impediments, especially at the state and local level, that unduly delay infrastructure projects and render their costs unreasonable.

Wireless Taxes Are Way Too High

The Wireless Foundation's valuable annual report regarding the taxes and fees imposed on wireless services has just been released. It short, it paints a dismal picture for consumers with respect to the taxes, fees, and government surcharges added to their bills.

 The top line: A typical American household with four phones on a “family share” plan, paying $100 per month for taxable wireless services, would pay over $330 per year in taxes, fees, and government surcharges.

 

Taxes, fees, and government surcharges now make up a record-high 27.60% of the average wireless services bill.

 

The federal Universal Service Fund (FUSF) charge has increased again, from 12.76% to 13.36% of the average wireless services bill, and state and local taxes on the average bill also increased, from 14.01% to 14.25%. Together, you get the 27.60% total.

 

Maryland, where the Free State Foundation is located, ranks in the top quartile of those states with the highest taxes, fees, and government surcharges imposed on wireless services. Over 30% of the average Marylander's wireless services bill is composed of those add-ons.

 

Some good news: The average charge from wireless providers has decreased by 29% since 2012, from $47.00 per line per month to $33.36 per line.

 

Now the bad news: During this same time, wireless taxes, fees, and government surcharges increased from 17.18% to 27.60% of the average bill. The result – the consumer benefits from lower wireless prices are almost totally offset by higher taxes and fees.

 

Of course, the Tax Foundation's report is not just a sterile exercise in collecting and organizing data. All this matters greatly to consumers, and especially to low-income families. According to the report, approximately 83 percent of low-income adults live in wireless-only households. Wireless taxes, fees, and surcharges are regressive and disproportionally adversely impact low-income families.

 

That should be reason enough for state and local taxing authorities, and the federal government with regard to the USF fee, not only to halt the upward trend but to act to substantially reduce the current tax burden on wireless consumers!

Colorado's Plan Provides Useful BEAD Insights

 In today's Policyband, Ted Hearn provides some figures regarding Colorado's revised BEAD proposal that are useful in suggesting key policy insights.

This from Policyband: 

"Amazon’s Project Kuiper and SpaceX’s Starlink were tentatively awarded about half of the roughly 90,000 homes and buildings with either no service or speeds below 100/20 megabits per second. Fiber providers captured 48% of the locations, while fixed wireless accounted for 2%. Colorado awarded $25.3 million to Project Kuiper to serve 42,252 locations – about 47% of all locations – at about $600 per location, while Starlink received $9.1 million to serve 5,400 locations – about 6% of all locations – at about $1,700 per location."

 

And then here's the kicker:

 

"Because fiber deployment come with high per-locations costs, Colorado awarded 91% of its BEAD funds to fiber Internet Service Providers (ISPs)."

                                                     

The cost difference between providing broadband service via satellite and fiber is significant. Under the Biden administration BEAD plan, Colorado was to receive about $826 million in federal funds, whereas under the reworked Trump administration guidelines, Colorado said it would connect all eligible locations for a cost of $409 million. The $417 million in savings to the governments is not peanuts.

 

So, the Trump administration's abandonment of Biden's "fiber at all costs" policy makes sense, including for America's taxpayers. And it's consistent with Congress's intent in the Infrastructure Act that the BEAD program be technology-neutral.

 

Of course, it matters whether the satellite providers can actually deliver broadband service at the specified 100/20 megabits per second requirement and whether Amazon's Project Kuiper can actually get its satellites up and running in time to meet its commitments in this regard. Apparently, Colorado thinks both contingencies can be met or it would have proposed a different plan.

 

And I have a lot of confidence that new NTIA Administrator Arielle Roth, who has been on top of observing implementation of the BEAD program for years as the key telecom aide to Senator Ted Cruz, will ensure that NTIA administers the program efficiently and effectively. 

 

BTW, if you are not subscribing to Policyband, you should. Always useful information intelligently presented – and often with a bit of wit.

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.

The "Block BEARD Act" Deserves Speedy Consideration

It's pretty rare these days to have legislation drafted in Congress on bipartisan basis that attempts to address a serious national problem in a meaningful way. Sure, bipartisanship may still occur in  naming post offices or designating a new national Peanut Butter Day or Green Pea Day, but not much else.

 

But Senators Thom Tillis (R-NC), Chris Coons (D-DE), Marsha Blackburn (R-TN), and Adam Schiff (D-CA) released a discussion draft of the Block Bad Electronic Art and Recording Distributors (Block BEARD) Act of 2025. The legislation, if adopted, would allow copyright owners who have had their property stolen to seek an order in federal court to block dedicated foreign online piracy operations from making that stolen content available to American households.

 

Foreign websites pirating American movies, TV shows, art, and books steal tens of billions of dollars from the U.S. economy each year. This theft of Americans' intellectual property enabled by foreign websites costs the U.S. creative community hundreds of thousands of jobs. Consumers are harmed through the malware, phishing, identity theft, and financial fraud perpetuated online by the international pirates.

 

Here is a short summary of what the Discussion Draft intends to accomplish copied from Senator Tillis's press release:

 

The Block BEARD Act would empower copyright owners to seek U.S. federal court orders against foreign websites dedicated to digital piracy, preventing them from making stolen content accessible to American households. To obtain relief, copyright holders must present evidence of specific harm and demonstrate the criminal nature of the targeted site. Courts could then direct internet service providers block access to the identified sites, while granting those providers immunity from liability, including for claims related to the petitioner’s actions.  The legislation includes strong public interest safeguards to protect free expression, due process, and legitimate online services operating in compliance with U.S. law. This targeted legal tool mirrors successful approaches used in over 50 democratic countries to curb foreign piracy operations that undermine creative industry jobs and expose users to malware, identity theft, and fraud.

 

While it's always possible the draft bill might be improved as it goes through the legislative process, the draft appears to strike a proper balance in addressing what is a very serious problem of foreign theft of the intellectual property of the U.S. creative community while safeguarding the legitimate interests of others, including online providers.

 

Senator Tillis and his Senate colleagues should be commended, and the Block BEARD Act deserves speedy consideration.