House Committee Advances Bill to Reauthorize and Strengthen NTIA

On July 27, the House Energy and Commerce committee favorably reported, by a 48-0 vote, H.R. 4510, the NTIA Reauthorization Act of 2023. Introduced by House Communications & Technology Subcommittee Bob Latta, the bill was unanimously approved in the form of a substitute. As the title suggests, the legislation would reauthorize the agency, but it also includes several other provisions. Among other things, H.R. 4510 would elevate the position of NTIA Administrator from an Assistant Secretary of the Commerce Department to an Under Secretary position, and thereby give the Administrator and agency additional clout in overseeing federal use of spectrum and other important government functions. The legislation also would codify several offices within the agency, including the Office of Spectrum Management. It also would codify the Commerce Spectrum Management Advisory Committee (CSMAC).

Furthermore, H.R. 4510 would consolidate several disparate required agency reports into a consolidated annual report. And the NTIA would be required to prepare a strategy report on closing the digital divide.

 

Over the past few years, the NTIA's role in coordinating among executive branch agencies regarding federal spectrum policy and federal agency spectrum use has taken on added importance. The federal government is the primary user of a significant amount of valuable spectrum, and the NTIA plays a critical role to facilitate the repurposing of spectrum for private commercial use. By strengthening the position of the NTIA Administrator, H.R. 4510 hopefully will contribute positively to the agency's effectiveness in serving that role. At the same time, as pointed out in my July 14 blog post, "Successful Interagency Coordination Requires Discipline from the Top," presidential leadership appears to be a necessary ingredient for ensuring that executive branch agencies act in a disciplined manner and comply with interagency processes regarding federal agency spectrum use and the repurposing of spectrum for private use. 

 

In all, H.R. 4510 appears to be a reasonable piece of legislation. The unanimous approval it has received at the committee and subcommittee levels bodes well for the bill's chances of passage by the House of Representatives.  

Survey Shows Big-Time Growth in 2022 for 5G Devices and Home Broadband

On July 25, CTIA released its 2023 Annual Survey. Survey highlights are posted on CTIA's website. It shows the remarkable growth in wireless services that took place in the U.S. during 2022.  

The survey highlights show that 2022 was a record-breaking year for wireless data traffic growth, as U.S. wireless networks supported 73.7 billion MB of traffic last year. That total was 20 trillion MB – or 38% more – than in 2021. Total wireless traffic for 2017 was 15.7 trillion MB. Additionally, annual wireless investment climbed to an industry record $39 billion in 2022, up from $35 billion in 2021. This marks the continuation of a series of annual increases in capital investment, going back to 2017, when annual investment totaled $26 billion. According to CTIA, over its history (presumably dating back to the early 1990s), the wireless industry has invested over $675 billion.

CTIA's 2023 Survey Highlights also revealed stunning growth in wireless connectivity, especially for 5G devices. At year's-end 2022, there were about 523 million connected wireless devices and 162 million active 5G devices. Those numbers are up significantly from 2021, when connected wireless devices totaled 499 million and active 5G devices totaled 86 million. Between the end of 2021 and 2022, here was a near doubling of 5G connected devices. 

The survey also shows that 2022 was a huge year for 5G home broadband. According to the survey highlights, 5G home broadband now covers more than 94 million U.S. households, and that 5G home broadband accounted for 90% of net broadband additions last year. The survey also contains 2022 figures regarding small cells, price per MB, and text. 

The continuing success of wireless services in the U.S. owes, in significant part, to a pro-investment, pro-competition, light-touch regulatory policy that dates back to the early 1990s.  Thirty years ago, Congress authorized competitive bidding spectrum license auctions and preempted state regulation of rates and entry as well as state and local government permit and zoning decisions on infrastructure citing that have the "effect of prohibiting" wireless services. To ensure the continued success of 5G services in the U.S. Congress should take action in 2023 to advance legislation such as H.R. 3557, the American Broadband Deployment Act of 2023, to clear away obstacles to timely infrastructure. Also helpful to promoting broadband deployment, including wireless broadband, are a slate of bipartisan bills for streamlining infrastructure deployment that were passed by the House Energy and Commerce Committee in May of this year and highlighted in a May 24 blog post. And as FSF Senior Fellow Andrew Long explained in a July 21 blog post, "Congress Should Reinstate the FCC's Spectrum Auction Authority" by passing H.R. 3565, the Spectrum Reauthorization Act of 2023. 

FCC Should Finalize Rules for Spectrum Use in the 5.9 GHz Band

This month of July 2023, press outlets such as Communications Daily and FierceElectronics have reported on the fact that the FCC has not yet issued final rules that it proposed more than two-and-a-half years ago regarding use of the 5.9 GHz band. The Commission also has received ex parte filings regarding the lack of final rules. To date, the Commission has only granted some waivers for use of the band. The Commission should move expeditiously to finalize rules for use of 5.9 GHz band spectrum.

The FCC put a lot of work into its November 2020 order and proposed rulemaking that reallocated 45 MHz of spectrum in the 5.9 GHz band for unlicensed use. Indeed, the Commission carried out its work in the face of unusual public opposition from the Department of Transportation. The Free State Foundation filed public comments supporting the agency proposal that subsequently was adopted by the Commission in the 5.9 GHz Order. And FSF Senior Fellow Andrew Long wrote a November 2022 Perspectives from FSF Scholars, "The FCC's 5.9 GHz Proposal Would Advance Both Wi-Fi and Vehicle Safety," in support of the reallocation of the spectrum for unlicensed use. 

 

The Commission also put a lot of work in its successful defense of the 5.9 GHz Order at the D.C. Circuit in Intelligent Transportation Society of America v. FCC. Mr. Long wrote about that decision in an August 2022 blog post. The court's decision vindicated the FCC's primacy among federal agencies on commercial spectrum policy. 

 

The FCC ought to now finish what it started in the November 2022 order and proposed rulemaking and promote maximal value and use of the 5.9 GHz band. Clearing the decks on the 5.9 GHz band also would enable to the Commission to devote more of its attention to licensing other spectrum bands. 

Ookla Releases Updating Ranking of U.S. Fixed Broadband Provider Services

On July 17, Ookla released its U.S. Market Report for the second quarter of 2023, which ranks mobile and fixed broadband providers according to speeds and other service criteria. According to Ookla's Speedtest Intelligence® performance metrics, for Q2 of this year, Charter's Spectrum cable broadband service had the highest median download speed among fixed providers, at 243.02 Mbps. In a July 17 article, FierceTelecom reported that this is an increase from Q1, when Spectrum's median download speeds were 234.8 Mbps. For Q2, Cox ranked close second in median download speeds at 241.78 Mbps, Comcast's Xfinity was third with 233.25 Mbps and AT&T Internet was fourth with 210.12 Mbps. AT&T and Frontier were the two fixed providers for upload speeds, at 166.86 Mbps and 164.84, respectively. Ookla's Market Report also ranks U.S. fixed providers based on latency, consistency, and video. The report includes regional comparisons as well.

Certainly, the numbers shown in Ookla's Market Report are an improvement over figures cited in the FCC's 2022 Communications Marketplace Report as well as in my January 2023 Perspectives from FSF Scholars paper that reviewed the Commission's report. Continuing steady increases in fixed broadband speeds are predicated on strong network investment as well as network innovation. Ongoing and near-future rollouts of fiber and 10G cable broadband enabled by private market investment and innovation also will significantly boost upload and download speeds, latency, capacity, reliability, and security. To ensure further improvements in broadband network performance, the FCC should maintain its federal market-oriented policy towards broadband Internet access services that defines them as lightly-regulated "information services."

FCC's Unreasonable Delay in Withholding 2.5 GHz Band Spectrum Licenses

In a July 19 blog post published by the Federalist Society, Joel Thayer made a convincing case that the FCC has statutory authority under of the Communications Act to issue licenses in the 2.5 GHz spectrum band to 2022 auction bid-winner T-Mobile, despite the expiration of the Commission's spectrum auction authority on March 1, 2023. Consider this also: The FCC's failure to issue to T-Mobile numerous licenses that it won and paid for pursuant to Commission rules appears to constitute agency action "unlawfully withheld or unreasonably delayed" under the Administrative Procedure Act (APA). 

The point of this blog post is not to address whether or not litigation should be pursued in this matter. Rather, the point is to show how the APA and court precedents regarding unreasonable delay and mandamus relief bring into sharper focus the Commission's affirmative legal duty to issue to T-Mobile the 2.5 GHz spectrum licenses. The agency should carry out its duty by promptly issuing the licenses.

 

Repurposing spectrum – especially mid-band (1 GHz to 7 GHz) spectrum – is essential for supporting 5G wireless services. The Commission recognized this when it adopted a 2019 order to put more 2.5 GHz band spectrum into the hands of wireless broadband providers to offer services using that spectrum. And in March 2022, the agency issued a public notice that set procedures by which it would conduct a competitive bidding auction and offer 2.5 GHz spectrum licenses to winning bidders. In August 2022, the FCC concluded its 2.5 GHz band auction, and the agency thereafter announced that over 7,800 county-sized licenses were won by 63 bidders. T-Mobile won over 7,100 such licenses. And by late September 2022, T-Mobile submitted long-form applications and paid $304 million to the FCC for those licenses.

Following the expiration of the FCC's spectrum license auction authority on March 1 of this year, the position of the Commission appears to be that it now lacks authority to issue the 2.5 GHz licenses to T-Mobile, even though T-Mobile has paid for them. However, Mr. Thayer's legal analysis makes a strong showing that the Commission still has authority to issue licenses to T-Mobile pursuant to Sections 307(a) as well as its special temporary authority (STA) contained in Sections 307(c) and 309(c)(2). 

 

If the FCC possesses the authority to issue the 2.5 GHz licenses, I suggest the agency also has a legal obligation to do so. Under the circumstances, the FCC's refusal to issue those licenses to T-Mobile appears to constitute an unreasonable delay by the agency in carrying out its duty, under Section 307(a) and the Commission's rules and procedures.  

 

Section 706(1) of the Administrative Procedure Act (APA) authorizes courts to "compel agency action unlawfully withheld or unreasonably delayed." According to the Supreme Court in Norton v. South Utah Wilderness Alliance (2004), "the only agency action that can be compelled under the APA is action legally required." As the court explained in Norton, "the APA carried forward the traditional practice" of writs of mandamus as codified in the All Writs Act. 

 

Decisions by the D.C. Circuit such as American Hospital Association v. Burwell (2016) treat mandamus petitions under the All Writs Act in conjunction with, or interchangeably with, agency delay claims under Section 706(1) of the APA. To establish the court's jurisdiction and entitlement to mandamus relief, a plaintiff must show: (1) that it has a clear right to the relief requested; (2) that the defendant agency has a clear, non-discretionary duty – owned specifically to the plaintiff – to perform the act in question; and (3) no other adequate remedy exists.

 

According to the D.C. Circuit in In re Core Communications (2008), if those requirements are satisfied, "[t]he central question in evaluating 'a claim of unreasonable delay' is whether the agency's delay is so egregious as to warrant mandamus." The D.C. Circuit applies, on a case-specific basis, one or more factors set forth in TRAC v. FCC (1984) – also known as the "TRAC factors" as "useful guidance" as to whether a delay warrants mandamus. In Burwell, the court stated that "in situations where plaintiffs allege that agency delay is unreasonable despite the absence of a specific statutory deadline, the entire TRAC factor analysis may go to the threshold jurisdictional question: does the agency's delay violate a clear duty?"

 

Section 307(a) of the Communications Act states that if "public convenience, interest, or necessity is served thereby" the FCC "shall grant" to any applicant a "station license." By complying with the FCC's requirements in winning the 2.5 GHz spectrum licenses at auction and timely making payment, T-Mobile has a clear right to those licenses. The Commission now has a clear and non-discretionary duty to issue them. If the agency continues to fail to issue the licenses, or at least grant the special temporary authority that T-Mobile has requested, there appears to be no remedy available other than mandamus and Section 706(1) that would achieve the result of putting those withheld licenses into the hands of the party that won and paid for them. 

 

T-Mobile reasonably relied to its detriment on the Commission's rules, the 2019 order, and the agency's auction procedures. And T-Mobile is materially prejudiced by the agency's indefinite withholding of licenses worth $304 million, as it is being denied the benefit of using the spectrum to offer 5G services to consumers. Thus, all the elements for mandamus relief based on a claim of agency action unlawfully withheld or unreasonably delayed are present. 

 

None of this is to suggest that litigation should be necessary to resolve the problem posed by the FCC's withholding of 2.5 GHz licenses that T-Mobile won at auction. But it does suggest that the APA's "unlawfully withheld/unreasonably delayed" provision offers a useful lens for discerning the Commission's obligation to issue licenses that were validly won at auction and timely purchased. Indeed, it suggests that the case for the Commission to act by issuing the 2.5 GHz licenses, or at least granting T-Mobile's request for special temporary authority, and enabling use for 5G services is stronger than the case for the agency to continue doing nothing except hang onto the money of a private party that followed the rules. 

Congress Should Reinstate the FCC's Spectrum Auction Authority

On Monday, four members of the House Energy and Commerce Committee, including Chair Cathy McMorris Rodgers (R-WA), issued a statement indicating that they are "extremely disappointed" that Congress has not yet passed the Spectrum Auction Reauthorization Act of 2023 (H.R. 3565).

In "Extending FCC Spectrum Auction Authority Is Essential to the 5G Race," a February 2023 Perspectives from FSF Scholars, I warned that, absent congressional action, the FCC's auction authority soon would expire – thereby shutting off the spectrum pipeline that is essential not only to our nation's continued global leadership in the mobile space, but also to our overall economic growth. On March 9, 2023, that concern became reality. And over four months later, the wait for a legislative solution drags on.

H.R. 3565 would reinstate the Commission's auction authority through September 30, 2026. It also would appropriate an additional $3.08 billion for the FCC's "rip-and-replace" program, which provides funds to remove from American communications networks suspect hardware manufactured by Huawei, ZTE and other untrustworthy sources.

As Free State Foundation President Randolph J. May noted in a May 25, 2023 post to the FSF Blog, the day prior H.R. 3565 advanced out of committee on a unanimous 50-0 vote. Unfortunately, it has not yet reached the House floor.

The expiration of the Commission's auction authority impacts more than just future auctions. FCC Chairwoman Jessica Rosenworcel has taken the position that the agency can neither grant to T-Mobile the licenses in the 2.5 GHz band for which it paid $304 million nor approve its request for special temporary authority (STA) to use that spectrum in the interim.

In a statement to Fierce Wireless, the FCC's press secretary wrote that subsection 11 of Section 309 of the Communications Act "clearly states that 'The authority of the Commission to grant a license or permit under this subsection shall expire March 9, 2023'; so, any special temporary authority the FCC could have would flow from this section of the statute, which as you know is still currently expired."

T-Mobile and others, including a group of former FCC General Counsels, interpret the relevant statutes and agency precedents quite differently.

Big picture, the path out of this situation is clear: Congress should act expeditiously to reinstate on a long-term basis the Commission's auction authority. In the meantime, the agency can and should consider seriously the legal arguments referenced above that would allow T-Mobile to put to its highest and best use – whether on a licensed or STA basis – the spectrum for which it already has paid.

Successful Interagency Spectrum Coordination Requires Discipline from the Top

On July 11, the Federalist Society hosted a webinar titled "Federal Spectrum Coordination: Pitfalls and Progress." The panel was moderated by attorney Scott Delacourt and the ITIF's Joe Kane, and featured two former NTIA Administrators as panelists: John Kneuer and David Redl. The panelists, drawing on their wealth of experience, discussed spectrum policy and interagency coordination on spectrum allocations. During the webinar, the panelists discussed the history of the NTIA and its Administrator position, processes overseen by the NTIA for coordinating among executive branch agencies for federal use of spectrum, interagency conflicts, as well as the issue of process reforms for improving interagency coordination among executive agencies and the FCC. The webinar is full of insights and worth a listen in full. But near the end, Mr. Redl made an excellent point about the necessity of the White House demanding discipline across the executive branch which is essential for ensuring that the interagency process is followed.

Also, as noted in an August 3, 2022 blog post, nearly a year ago the NTIA and the FCC signed a Memorandum of Understanding (MOU) on spectrum coordination. Now Congress needs to pass the Spectrum Reauthorization Act of 2023 – H.R. 3565, so that there will be more spectrum available for the agencies to coordinate and reallocation for commercial use. 

A Strong Future for 5G Requires More Mid-Band Spectrum

On July 13, CTIA released a report titled, "The State of 5G: Evaluating Progress and Charting the Path Forward." The State of 5G Report highlights the rapid speed of 5G network deployment – outpacing deployment of 4G LTE networks – strong consumer adoption of 5G by U.S. consumers, the benefits of fixed wireless access (FWA) in providing residential broadband and closing the digital divide, innovative uses cases for 5G for medical, agricultural and other industries, 5G network reliability and security, and job creation enabled by 5G networks.

Additionally, the State of 5G Report states that "5G is at an inflection point: While initial deployments have achieved a solid footing, attention now turns to the scaling-up of applications and ensuring capacity is available to meet growing demand." Moreover, 5G home broadband service "requires more spectrum to scale up to its potential as a nationwide home broadband competitor. Today operators only offer this service in areas with sufficient capacity to provide reliable quality of service. Without more spectrum, the opportunity for FWA to scale and meet demand for a home broadband alternative to cable will likely be foregone."

 

The report cites estimates that the U.S. will need at least 400 MHz of additional mid-band spectrum to supply projected demand in 5 years, and also need nearly 1,500 MHz in 10 years. Yet the report also observes, correctly, that there are no planned spectrum auctions in the works. The FCC already has allocated significant amounts of spectrum for unlicensed uses, including Wi-Fi. But significant amounts of spectrum remain under federal agency control, and action is needed to put more spectrum into commercial use on an exclusive licensed basis. As Free State Foundation President Randolph May and Senior Fellow Andrew Long have written about on several occasions, the Commission's authority to conduct spectrum license auctions has lapsed and it needs to be restored. To date, Congress has not succeeded in passing legislation to restore the FCC's spectrum license auction authority.  

 

The report identifies things that must be done in order to ensure that the U.S. maintains its economic competitiveness and national security when it comes to 5G services. It cites estimates that the U.S. will need at least 400 MHz of additional mid-band spectrum to supply projected demand in 5 years, and also need nearly 1,500 MHz in 10 years. But as the report observes, today there are no planned spectrum auctions for spectrum licenses. 

 

The report also states that U.S. support for proposals to new mobile allocations for 1,490 MHz of spectrum located between 4.8 GHz and 10.5 GHz, both at the November 2023 World Radio Conference and domestically, would put the U.S. in prime position for the 5G future. 

As I have written in prior blog posts, Congress can do its part in securing a strong 5G future for the U.S. by taking up and passing the Spectrum Auction Reauthorization Act of 2023 – H.R. 3565. The Act, if passed into law, would restore the FCC's statutory authority to hold spectrum license auctions. Additionally, the Act would authorize the NTIA to study the feasibility of making 4 GHz band and 7/8 GHz band available for commercial use on an exclusive or shared basis. 

Opensignal Reports Reflect the Reality of Mobile Wireless Innovation and Competition

 On July 5, Opensignal released the latest iterations of its 5G Experience Report as well as its Mobile Network Experience Report. The reports were based on data for mid-March to mid-June 2023.

Opensignal's 5G Experience Report found that Verizon Wireless had the best upload speed of 18.5 Mbps, up nearly 15% from mid-September to mid-December 2022. It also awarded Verizon three "5G experiential awards" for gaming, voice app, and live video. According to the report, T-Mobile had the highest download speeds at 195.9 Mbps. Meanwhile, T-Mobile also had the highest 5G availability, with Opensignal finding that 5G-capable users were connected to 5G 57.9% of the time that those users were on T-Mobile's network.

Opensignal's Mobile Network Experience Report – which includes 4G LTE wireless networks – found that T-Mobile had the best download speeds at 97.1 Mbps, up 17.6 Mbps or 22.1% compared to the prior data collection period of mid-September to mid-December 2022. T-Mobile also had the highest upload speeds, at 11.7 Mbps. And the report found that AT&T had the best network service availability – with a score of 99.4% – based on proportion of time that wireless users have a network connection. 

 

Regardless of which provider came out on top in the categories considered by Opensignal, what is important for consumer welfare in the U.S. is that speed, experience performance, and coverage continue to increase rather than remain static. Also, the report reflects the prevalence of effective competition in the wireless broadband market. A decade ago, the FCC was sometimes reluctant – unjustifiably in the view of Free State Foundation President Randolph May and I – to recognize that the wireless services market was "effectively competitive." But the mobile wireless market in 2023 surely is effectively competitive. Aside from the three major nationwide providers, the report observes that US Cellular will be rolling out its mid-band 5G network across ten states. And the market presence of cable-hybrid mobile virtual network operators (cable MVNOs) Xfinity Mobile and Spectrum Mobile give consumers additional competitive choices. 

 

To promote future improvements in speed, experience performance, and coverage for 5G wireless networks, Congress should restore the FCC's authority to conduct competitive bid spectrum license auctions. More spectrum is needed to support commercial mobile wireless services, particularly mid-band spectrum. Congress should pass H.R. 3565, the Spectrum Auction Reauthorization Act of 2023. If it becomes law, H.R. 3565 would revive the Commission's spectrum license auction authority and it also would direct the NTIA to conduct feasibility studies for making spectrum in the 4 GHz and 7/8 GHz bands available for commercial use, either on a shared or exclusive basis. 

BEAD Program State-by-State Funding Allocations Announced

On June 26, 2023, the National Telecommunications and Information Administration (NTIA) announced the amount of funding each state and territory would receive from the $42.45 billion Broadband Equity, Access, and Deployment (BEAD) Program. The focus now shifts to state broadband offices, which have 180 days to submit their Initial Proposals.

The Infrastructure Investment and Jobs Act (IIJA), which established the BEAD Program, specified that every state would receive a minimum of $100 million in broadband infrastructure construction subsidies. Additional allocation decisions reflect the number of "unserved" locations – that is, those that lack access to a high-speed Internet connection at speeds of at least 25 Megabits per second (Mbps) downstream and 3 Mbps upstream (25/3 Mbps) – and "underserved" locations: those where speeds of at least 100/20 Mbps are not yet available.

Congress in the IIJA specified that the FCC's National Broadband Map, unveiled in November 2022 and updated in May, would serve as the definitive source for current service availability information. NTIA's BEAD Program funding allocations, therefore, in part are based on the number of "unserved" and "underserved" locations in a given state as indicated by the National Broadband Map.

As I have noted repeatedly, however, most recently in "Wasteful Duplication by Design: A Case Study on Overlapping Federal Broadband Subsidies," a May 2023 Perspectives from FSF Scholars, the BEAD Program's eligibility requirements, set forth in a Notice of Funding Opportunity (NOFO), treat locations with access to "broadband" provided via satellite or unlicensed spectrum as "unserved."

Accordingly, there is a real danger that BEAD Program money will be used to overbuild existing, privately funded networks. In the above-referenced Perspectives, I focused on a nearby neighborhood here in Colorado where, despite the existence of six competitors, four of which offer speeds that exceed 25/3 Mbps, BEAD Program subsidies might be awarded to yet another provider – simply because of the most-cost-effective technologies selected by those already serving consumers.

The BEAD Program allocation announcement reveals that Colorado is eligible to receive $827 million. Going forward I will keep a close eye on the areas to which that money is made available.

In addition, it is important to keep in mind that the National Broadband Map reveals only where service is available at the time of the data collection – for the updated version released in May, that would be the end of 2022. It does not reflect where federal money has been awarded but construction has not been completed (or even commenced, in many cases).

That responsibility falls to the FCC's other map: the Broadband Funding Map, the release of which I highlighted in a May 2023 post to the Free State Foundation's blog. Intended to facilitate critical interagency coordination efforts – as the Government Accountability Office (GAO) reiterated recently, the existence of over 130 different subsidy programs run by 15 different federal agencies amounts to a "patchwork of programs [that] could lead to wasteful duplication of funding and effort" – Congress required the creation of the Broadband Funding Map to illustrate those areas to which money from other sources (Treasury, Agriculture, and so on) has been committed.

At present, however, the bulk of those hundreds of billions in federal dollars are in process, thereby further complicating oversight efforts. For example, the Colorado Broadband Office, tasked with distributing $162 million just from Treasury's Capital Projects Fund, only began to accept applications on June 20, 2023.

As 5G Mobile Connections Grow, Congress Should Act on Spectrum

On June 28, 5G Americas issued a press release highlighting strong 5G adoption numbers during the first quarter of 2023 for North America – the U.S. and Canada. Citing data from Omdia, the press release stated:

North America continues to assert leadership in 5G wireless connectivity, as continued adoption fuels additional demand for improved 5G network services. By the end of Q1 2023, the region boasted an impressive tally of 133 million 5G connections and a staggering 503 million LTE connections. The 5G penetration rate in the North American market is steadily climbing and currently stands at nearly 36 percent, as 14 million new 5G connections came online during the first quarter of 2023.

Additionally, 5G Americas' press release cites an Omdia forecast that 5G will be the dominant mobile technology in North America by 2025, and that there will be 601 million subscriptions in North America by the end of 2027. The press release also includes figures and forecasts for 5G growth for the globe and for other regions.

 

The 5G Americas press release doesn't cite figures or make forecasts specific to the United States. However, it is imperative that the U.S. maintain its leadership among nations when it comes to 5G services. To securing that leading position through 2027 and beyond, Congress, the NTIA, and the FCC must act to replenish the spectrum pipeline, particularly with mid-band spectrum that is ideal for supporting 5G wireless networks. 

 

In public comments filed in the NTIA national spectrum strategy proceeding, Free State Foundation President Randolph May and I urged the agency to study and reallocate for commercial use at least 1,500 MHz of spectrum. We also recommended that the NTIA prioritize reallocation of the lower 3.1-3.45 GHz band, as we well as the 4 GHz and 7/8 GHz bands. 

 

Importantly, Congress also should promptly restore the FCC's authority to conduct competitive bidding auctions for spectrum licenses. That authority lapsed earlier this year. Apparently, this is the first such lapse since the Commission was first granted spectrum license auction authority in 1993. But on May 24, the House Energy and Commerce Committee passed H.R. 3565 – the Spectrum Auction Reauthorization Act of 2023. If passed into law, H.R. 3565 would restore the Commission's spectrum license auction authority through September, 2026. The bill also would direct the NTIA to conduct feasibility studies for making spectrum in the 4 GHz and 7/8 GHz bands available for "non-Federal use, shared Federal and non-Federal use, or a combination thereof." Hopefully, the bill will soon receive a full vote before the House of Representatives. 

Independence Day 2023

Over the years, as I have contemplated writing my annual Independence Day message, I have found myself, many times, turning to Abraham Lincoln. This year, coming on the heels of the Supreme Court's decision regarding "affirmative action" in college admissions decisions in Students for Fair Admissions, this is especially so.

Born in 1809, Lincoln was a generation (or two, depending on how you count) removed from the Founding generation. But there is no doubt that, among all the post-Founding era presidents, Lincoln understood, and drew inspiration from, the true meaning of the self-evident "Truths" proclaimed in the Declaration of Independence – "that all Men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness."

In my Independence Day 2017 message, I showed how, in his little known but eloquent address at Peoria in October 1854, Lincoln grounded his extended argument against slavery firmly in the philosophy and principles expounded in the Founders’ Declaration of 1776, not the Constitution of 1787. Invoking the Declaration's self-evident truths, Lincoln said this in 1854: "What I do say is, that no man is good enough to govern another man, without that other's consent. I say this is the leading principle---the sheet anchor of American republicanism."

Now, fast forward to February 22, 1861. On Lincoln's journey to Washington as president-elect to be inaugurated, he stopped in Philadelphia. And not just any place in Philadelphia, but at the Pennsylvania State House site where the Declaration of Independence had been signed. There Lincoln delivered some very brief remarks – in contrast to his Peoria Address which lasted over three hours. Indeed, at the site that subsequently became known as Independence Hall, Lincoln protested to the gathered crowd, "I did not expect to be called upon to say a word when I came here."

Unsurprisingly, what Lincoln did say that day was memorable. Most notably, and most pertinent as we prepare to celebrate Independence Day 2023, Lincoln declared: "I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence."

Explaining what he meant by invoking the sentiments embodied in the Declaration, Lincoln declared: "It was not the mere matter of the separation of the Colonies from the motherland; but that sentiment in the Declaration of Independence which gave liberty, not alone to the people of this country, but, I hope, to the world, for all future time. It was that which gave promise that in due time the weight would be lifted from the shoulders of all men."

The citizenry of our country is riddled with deep divisions, some involving matters of high principle and others not so much so. And, of course, our politics reflect these divisions, as it always has in our democracy, and on matters of principle that is appropriate. But I can't help believing that perhaps our politicians could find more common ground if every day, or if only occasionally, they said to themselves: "I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence."

Towards the end of his remarks in Philadelphia on that day in February 1861 at the site of the signing of the Declaration of Independence, Lincoln said that if the country could not be saved without giving up on the fundamental principle of equality of all men, "I would rather be assassinated on this spot than surrender it."

Lincoln was assassinated on April 15, 1865, little more than four years later – but not before the Declaration's sentiments, which so inspired him and of which he so often spoke, had been vindicated by the Union's victory in the bloody Civil War.

I respect the views of those who disagree with Chief Justice John Roberts' majority opinion in Students for Fair Admissions. But, for me, it was time for the Supreme Court to return to the foundational equality principle at the core of the Declaration of Independence and the Constitution's Fourteenth Amendment. As the Court emphasized, pursuant to the Equal Protection Clause: "Eliminating racial discrimination means eliminating all of it."

On this Independence Day, it's appropriate to reflect on the meaning of the Declaration's self-evident truths.

Best wishes to you and your family for a safe and meaningful Independence Day 2023!

 

My previous Independence Day messages are here: 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021, 2022.

 

Video and Audio Available for Webinar on FCC's Digital Discrimination Rulemaking

On June 23, the Federalist Society hosted a webinar titled "The FCC's Digital Discrimination Rulemaking: Facilitating Equal Access to Broadband Services." Video and audio of the event are now available for streaming and download:

Free State Foundation President Randolph May moderated the discussion amongst panel participants Harold Feld of Public Knowledge, Clint Odom of T-Mobile, and myself. The webinar included discussion of the FCC's authority under Section 60506 of the Infrastructure Investment and Jobs Act of 2021. Does Section 60506 confer authority on the agency to adopt rules that would impose liability on broadband providers based only on a showing of unintentional disparate impact? Or does the statute require evidence of intentional discrimination. And what effect might disparate impact liability have on efforts to ensure equal access to broadband Internet services? Check out the online video or listen to the podcast to hear thoughtful insights on these and related matters. 

 

In public comments and reply comments filed with the FCC in its digital discrimination rulemaking proceeding, FSF President Randy May and I concluded that Section 60506 of the Infrastructure Act contains an intent-based standard for rules prohibiting digital discrimination, and that the text of statute does not support the imposition of unintentional disparate impact liability on broadband Internet service providers. During the webinar event, I emphasized that Section 60506 contains specific language that calls for an intent-based anti-discrimination rules and that the statute does not contain hallmark catchall terms that courts have identified as authorizing or permitting unintentional disparate impact claims. For discussion about that issue more, check out the webinar.

Ericsson Reports on Present and Future Growth of Mobile Services

The June 2023 edition of the "Ericsson Mobility Report" was released on June 23. The updated report features high-level view of global and regional developments and trends in mobile data services as well as projected growth forecasts. Although the June 2023 report does not include any figures specific to the United States, it does contain many useful insights regarding mobile data traffic increases, progress in 5G deployment, and potential growth in fixed wireless access (FWA) for the globe and for North America.

Among the report's findings, "[t]he uptake of 5G subscriptions in North America has been stronger than expected," and year's-end 2022 it had the highest 5G subscription penetration at 41%. Included in the report is a chart showing the disappearance of legacy 3G services in North America and strong growth in 4G LTE as well as 5G. Yet although 4G subscriptions increased in 2022, the report expects those numbers to decline starting this year. According to the report's projection, in 2028, North America will have the highest 5G penetration at 91%.

The report credits the use of mid-band spectrum in North American for strong 5G services growth, and it expects there to be over 250 million subscriptions by the end of this year. And the report projects there to be about 410 million 5G subscriptions by 2028. Important to this 5G growth is FWA services. The report observes that "FWA, providing high-speed internet to homes and small businesses, has become the primary technology fueling fixed broadband growth in North America." 

 

Moreover, the report projects that average monthly mobile data usage per smartphone in North American will rise to 58 GB in 2029, and it credits this to unlimited data plans and improved 5G network capacity supporting new mobile and FWA 5G subscribers. 

 

Notably, the report also found that monthly global mobile data traffic reached 126 exabytes (EB) by the first quarter of this year – nearly double what it was just two years prior.  

 

But in order to fully support projected future increases in mobile data traffic in the U.S. – as well as support potential stronger-than-expected growth in 5G services – more spectrum will need to be made available for private commercial use. Now that the U.S. spectrum pipeline for commercial wireless services has run empty and the FCC's authority for conducting competitive bidding spectrum license auctions has lapsed, the clear policy priority should be to replenish the pipeline with more mid-band spectrum from commercial licensing and to renew the Commission's authority conduct auctions and license spectrum use on an exclusive basis. 

Report Shows Growth in Satellite Broadband

On June 20, the Satellite Industry Association (SIA) announced the release of its 26th Annual State of the Satellite Industry Report. A report executive summary or set of satellite industry highlights for the year 2022 is available online.  

According to SIA's announcement, a total of 2,325 commercial satellites were deployed in 2022, a 35% increase compared to the year before. And at year's end 2022, there were 7,316 active satellites orbiting the earth. Additionally, SIA announced that global satellite broadband subscriptions and revenue combined with satellite radio and remote sensing revenue growth totaled $113.3 billion. 

Notably, a June 23 Via Satellite article stated that "the report found that consumer broadband satellite service revenue grew 18% in 2022 to $2.4 billion, while subscribers grew 28%, to nearly 4 million. The majority of revenue comes from Geostationary Orbit (GEO) broadband, but subscriber growth is largely driven by Low-Earth Orbit (LEO) systems. And the article also observed report findings of growth in satellite mobile voice and data revues of 7%. 

 

SIA's report constitutes a reminder of the potential for next-generation satellite technologies to provide viable new choices for high-speed broadband competition and connectivity in difficult-to-reach geographic areas. That potential was discussed by former FSF Legal Fellow Andrew Magloughlin and I in our January 2022 Perspectives from FSF Scholars, "The Broadband Internet Services Market in January 2022:
5G, Cable, Fixed Wireless, Wi-Fi 6, and Fiber Are Benefitting Consumers."

GOP Senators to Biden: Use COVID-19 Dollars to Extend ACP

According to Light Reading and other news outlets, on Tuesday a group of 8 Republican Senators identified for President Biden a stopgap funding source for the Affordable Connectivity Program (ACP): untapped COVID-19 relief money.

The ACP, which provides eligible households with a $30 monthly subsidy ($75 on Tribal lands) to apply toward their choice of broadband service and up to $100 for a connected device, was created by the Infrastructure Investment and Jobs Act of 2021 (IIJA). Congress filled the ACP's coffers with $14.2 billion on a one-time basis.

Without question, $14.2 billion is a hefty sum. However, given that (1) to date nearly 19 million households have signed up for the ACP, and (2) the FCC continues to encourage consumer participation through outreach grants, that money soon will run out – perhaps as early as the first quarter of 2024.

Accordingly, many have called upon Congress to appropriate additional funds to extend the ACP's lifespan. That group includes Free State Foundation President Randolph May, who urged Congress to "extend it, while mending it" in a Real Clear Markets op-ed published in April of this year.

And in a March 2023 Perspectives from FSF Scholars, Mr. May wrote that:

Congress should extend the worthwhile ACP program promptly by appropriating additional funding. At the same time, it can consider revising the program to better target the ACP benefit to those lower-income households most truly in need and adopting measures to minimize, to the extent possible, any waste, fraud, and abuse in the program.

Notably, the ACP has bipartisan support. In written testimony submitted prior to her participation in an oversight hearing held yesterday by the House Energy and Commerce Committee's Communications and Technology Subcommittee, FCC Chairwoman Jessica Rosenworcel wrote that "I strongly support funding the Affordable Connectivity Program into the future to help more families get and stay connected to the high- speed internet they need to participate in modern life."

Speaking during that hearing, Chairwoman Rosenworcel reportedly stated that:

As a result of the bipartisan infrastructure law, we've got lots of funds to help with the deployment in largely rural areas, but we're also going to need funds and efforts to address affordability. ACP is the best program we have ever developed to do that, and we've got to make sure it continues.

Earlier this week, Senator Roger Wicker (MS) and 7 of his Republican colleagues reportedly wrote to President Biden to share a novel short-term solution: "repurpose a portion of unobligated emergency COVID relief funds to ensure the continuity of funding for this program, while we explore alternative sustainable funding mechanisms and updated parameters."

Senator Wicker's coauthors include Mike Crapo (ID), Kevin Cramer (ND), Thom Tillis (NC), Shelley Moore Capito (WV), J.D. Vance (OH), James Risch (ID), and Todd Young (IN).

As did Chairwoman Rosenworcel in her House testimony, the letter's signatories emphasized the interdependent relationship between (1) the hundreds of billions in federal subsidy dollars, including the $42.45 Broadband Equity, Access, and Deployment (BEAD) Program, targeting broadband infrastructure expansion, and (2) the ability of lower-income Americans to pay for the service that that massive public investment makes possible.

Specifically, they pointed out that, as those subsidized networks "become operational, the significance of the Affordable Connectivity Program will become even more important as it ensures our constituents can benefit from these historic investments in connectivity."

In response, a White House spokesman stated that "[w]e look forward to working with members of both parties to extend funding for the program so that it can keep lowering high-speed internet costs for tens of millions of American families."