President Trump Issues Executive Order for Agency Regulatory Accountability

On January 18, President Trump issued an Executive Order intended to increase the democratic accountability of executive branch agencies' regulatory activities. It requires senior appointees of the President to initiate the  Administrative Procedure Act (APA) process process at their agency, to sign finalized rules, and to approve their agency's regulatory agenda. The idea behind this executive order is to help ensure that federal agency heads chosen by the President – officials at least indirectly accountable through national elections – take responsibility for the actions of the agencies they oversee rather than pass of significant rulemaking and regulatory implementation decisions to subordinates who are insulated from the democratic process. Since federal agency heads chosen by the President are removable by the President, the Executive Order is thus a measure for increasing the President's responsibility for regulatory undertakings by the executive branch.

President Trump's Executive Order is consonant with the constitutional separation of powers. It doesn't reduce the powers of any particular executive branch agency, nor does it transfer any power away from the executive branch to the other branches. No lengthy or expensive process requirements are involved. Indeed, the Executive Order appears to be a common-sense measure for democratic accountability. Despite the late hour of the Executive Order's release, it would be to the next Administration's credit to retain and follow the Order. 

NTIA Seeks Input on National 5G Security Strategy

As I noted in an April 6 blog post, President Trump signed into law the Secure 5G and Beyond Act of 2020 on March 23. That Act directs the Administration to develop a 5G security implementation plan within 6 months of its enactment.

The White House initiated that process with the same-day release of the "National Strategy to Secure 5G," a framework document organized around four lines of effort:

• Facilitating the private-sector led rollout of 5G;
• Defining core security principles in response to potential risks;
• Addressing risks to economic and national security interests; and
• Working with like-minded countries to develop and deploy secure and reliable standards and infrastructure.

Late last month, NTIA solicited public input on that implementation plan. Its request for comment, which is organized around the same four lines of effort noted above, presents a number of specific questions. For example:

• With respect to facilitating the domestic rollout out of 5G, how can the U.S. Government further motivate the commercial ecosystem (equipment and chip manufacturers, software developers, cloud providers, system integrators, network providers, etc.) to increase R&D and testing? What specific goals should it prioritize?
• In assessing risks and identifying core security principles, what factors should the U.S. Government consider in evaluating potential security gaps?
• In addressing risks to economic and national security, what opportunities does 5G deployment create for U.S. companies?
• In promoting the responsible global development of 5G, how can the U.S. Government best encourage the domestic private sector to participate in standards development?

Comments are due on or before June 18.

White House Releases "National Strategy to Secure 5G"

On Monday, March 23, President Trump signed into law the Secure 5G and Beyond Act of 2020. That legislation directs the Administration, within 180 days of enactment, to develop a plan that ensures the security of domestic 5G networks; provides allies with technical assistance as they work to harden their own 5G networks; and protects the competitiveness of U.S. companies, the privacy of consumers, and the integrity and impartiality of standards-setting bodies.

The same week, the White House initiated that process by releasing the "National Strategy to Secure 5G," a framework document that defines the following four lines of effort:

One: facilitating the private-sector led rollout of 5G in the United State by building upon the FCC's 5G Fast Plan and NTIA's National Spectrum Strategy.

Two: defining core security principles for 5G capabilities and infrastructure in response to potential risks, which may be economic or national security in nature. Core security principles include best practices in cybersecurity,  supply chain risk management, and public safety, and will be synchronized with other security principles, such as the "Prague Proposals."

Three: addressing risks associated with the worldwide development and deployment of 5G infrastructure by (a) ensuring supply chain security, and (b) by taking actions necessary to protect U.S. national security interests from 'high-risk' vendors (that is, those owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary that pose an undue or unacceptable risk) that build upon Executive Order 13873 (issued May 15, 2019).

Four: working with like-minded countries to promote (a) the responsible global development and deployment of 5G technology and security principles, (b) U.S. leadership in standards setting, and (c) the availability of secure and reliable equipment and services.

5G will drive forward the economy in the years ahead. Therefore it is encouraging to see Congress and the Administration take proactive steps to safeguard next-generation wireless infrastructure and ensure continued American technological leadership in this space.

FSF Conference Keynote by Robin Colwell, Special Assistant to the President for Economic Policy

One of the many highlights of the Free State Foundation's Twelfth Annual Telecom Policy Conference held at the National Press Club in Washington, DC on Tuesday, March 10, 2020: A keynote address by Robin Colwell, Special Assistant to the President for Economic Policy.

In her remarks, Ms. Colwell stressed the importance of broadband to the economy, innovation, and citizens' lives. She mentioned several pieces of relevant, pending legislation, including the Secure and Trusted Communications Networks Act, the Secure 5G and Beyond Act, and the Broadband DATA Act. And she discussed administration efforts to close the digital divide, such as the FCC's Rural Digital Opportunity Fund and the USDA's ReConnect Program.

On the topic of 5G, she assured that "the Administration is pushing aggressively on all fronts to ensure American leadership" and laid out three primary goals: deploying 5G rapidly using a free enterprise-driven approach; promoting security in all aspects of 5G networks worldwide; and maintaining American leadership in 5G research and development.

Ms. Colwell also praised the FCC's recent C-band Order as "a huge step in the right direction" in making critical mid-band spectrum available to the wireless industry.

Finally, she noted that a Presidential Summit on 5G Innovation is scheduled to take place in April.

Ms. Colwell's prepared remarks can be accessed here.

New White House Report Promotes Enforcement of IP Rights

On December 12, 2016, the White House’s Office of the U.S. Intellectual Property Enforcement Coordinator (IPEC) published a report entitled “Supporting Innovation, Creativity and Enterprise: Charting a Path Ahead,” which promotes strengthening the enforcement of IP rights in the U.S. and abroad for the next three years.

The IPEC submits a joint strategic plan to Congress every three years under the Pro-IP Act of 2008. The Pro-IP Act outlined the following objectives for the joint strategic plan:

• Reduce counterfeit and infringing goods in domestic and international supply chains;

• Identify unjustified impediments to effective enforcement action against the financing, production, trafficking, or sale of counterfeit or infringing goods;

• Support the sharing of information to curb illicit trade;

• Disrupt domestic and international counterfeiting and infringement networks;

• Strengthen the capacity of other countries to protect and enforce intellectual property rights;

• Establish with other governments international standards and policies for the effective protection and enforcement of intellectual property rights; and

• Protect intellectual property rights overseas by enhancing international collaboration and public-private partnerships.

With those objective in mind, the joint strategic plan for FY 2017-19 sets goals including: (1) enhance national understanding of economic and social impacts from trade secrets misappropriation and IP rights infringement; (2) minimize counterfeiting and IP-infringing activity online; (3) secure and facilitate lawful trade; and (4) enhance domestic strategies and global collaboration.

IPEC Daniel Marti should be commended for the new report. Not only does it recognize the impact that strong protections of IP rights has had on U.S. GDP ($6.6 trillion value added), but it addresses key ways that IP rights can be strengthened including: curbing illicit efforts with innovative enforcement techniques; increasing the ability of consumers to recognize illegal content and goods; and using trade agreements to promote strong global IP rights.

Utilizing various means to enforce rights enables artists and creators to earn a return on their labor and incentivizes innovation and economic activity around the world.

White House Report on Occupational Licensing Hits the Mark

The White House released a July 2015 report entitled “Occupational Licensing: A Framework for Policymakers,” which explains how the impact of occupational licensing on consumers, job seekers, and the economy as a whole can be more costly than beneficial. An August 7 Washington Post editorial summarized the report and some of its findings:

“A startling one-quarter of all U.S. workers need a license to do their jobs, according to the White House report, a five-fold increase since the 1950s. Among those most affected by this situation are military families, who move frequently from state to state, only to find that a non-military spouse can no longer work without spending months qualifying for a new license. Licensing also inhibits many ex-offenders from rejoining the workforce because they lack the requisite clean police record. Overall, unlicensed workers earn 10 percent to 15 percent less than similarly skilled licensed workers, and licensing laws raise consumer prices, with no dis­cern­ible increase in the general quality of goods and services, according to research summarized in the report.”

The editorial says that while some occupational licenses help protect public safety and health, others can be particularly burdensome when applied to specific occupations in a protectionist manner, like florist licenses or funeral-attendant licenses. The editorial also considers how historic economists and various political ideologies have questioned the costs and benefits of restrictive occupational licensing:

“[T]he report’s authors stand on the shoulders of not only [Adam] Smith and [Milton] Friedman but also researchers at think tanks ranging from the libertarian Institute for Justice to the liberal Brookings Institution, who have previously documented the often contradictory and unjustifiable rules that require, say, scrap metal recyclers to get a license in one state but not in another — or oblige aspiring members of the same licensed trade to pay wildly varying fees and spend wildly varying amounts of time studying depending on where they live.”

On July 31, 2015, I wrote a blog entitled “Maryland’s Occupational Licensing Regime Hurts the Poor.” In it, I referred to the White House report in discussing how restricted competition under Maryland’s occupational licensing regime leads to increased prices and unemployment, which disproportionately burden poor Maryland residents.

As my blog, the White House report, and the Washington Post editorial conclude, eliminating discriminatory and protectionist occupational licenses would enhance consumer welfare and promote economic growth. This is an issue on which those with various political ideologies ought to agree.