Pending Case Could Prompt the Supreme Court to Reconsider Brand X

On January 8, 2020, the Federalist Society's Practice Group Podcast featured a teleforum on Baldwin v. U.S. – now pending at the certiorari stage at the U.S. Supreme Court – and on the future of the Court's decision in NCTA v. Brand X Services, Inc. (2005). The call included an incisive critique of Brand X from constitutional and administrative law standpoints. Brand X is a progeny of Chevron U.S.A. v. Natural Resources Defense Council (1984). The call's participants discussed the relationship between Brand X deference and Chevron deference as well as conceptual distinctions between them. 

FSF President Randolph May has written numerous publications going back several years addressingChevron, Brand X, and related decisions involving judicial deference to agency decisions. Here are just a few of his more recent publications:

• Randolph J. May, "The Ongoing Saga of Chevron and Net Neutrality," Perspectives from FSF Scholars, Vol. 14, No. 33 (Oct. 21, 2019);

• Randolph J. May, "Delegation, Deference, and the FCC," FSF Blog (Jul. 12, 2019);

• Randolph J. May, "Judge Brett Kavanaugh's Views on Chevron Deference at the FCC and Beyond," Perspectives from FSF Scholars, Vol. 13, No. 32 (Aug. 6, 2018);

• Randolph J. May "Notes for NARUC," FSF Blog (Jul. 21, 2016); and

• Randolph J. May, "Chevron Decision's Domain May Be Shrinking,"Perspectives from FSF Scholars, Vol. 10, No. 23 (Jul. 7, 2015).

Proposed Maryland Tax on Digital Advertising Is Problematical

As the Maryland General Assembly gets geared up for its 2020 legislative session, a bill has been introduced by the current and former Senate majority leaders to tax online ad revenues. The sponsors say that such a digital advertising tax could raise $100 million a year.

It's true that Maryland's fiscal situation could use shoring up to reduce the perennial "structural deficit" that characterizes Maryland budget. But the proposed digital advertising tax is problematical for several reasons relating to sound tax policy.

For a good discussion, see this piece by the Tax Foundation's Ulrik Boesen.

We'll likely have more to say about this as the legislative session progresses.  

U.S. Delegation Members Highlight U.S. Gains for 5G at International Conference

On January 7, 2020, the Federalist Society's Practice Group Podcast featured a teleforum discussion on "The Race to 5G and the World Radio Conference." The panel included Ambassador Grace Koh, who led the U.S. delegation to WRC-19, as well as the FCC's International Bureau Chief Thomas Sullivan. WRC-19 was held in Egypt and concluded its work in November 2019. The panelists offered interesting analysis of what was accomplished at WRC-19 regarding mobile wireless services, particularly regarding the use of mmWave spectrum for 5G services. Panel discussion also touched on U.S. cooperative efforts with regional partner nations, the 24 GHz band, and the postures of China and Russia at WRC-19. The podcast's page can be found here.

Free State Foundation scholars, including FSF President Randolph May, Visiting Senior Fellow Gregory Vogt, and myself have addressed 5G in a number of writings. Expect more from FSF scholars on 5G in 2020, including at the Free State Foundation's Twelfth Annual Telecom Policy Conference. This year's conference, Broadband Beyond 2020: Competition, Freedom, and Privacy, will be held at the National Press Club in Washington, DC on March 10. Register for the conference here.

My June 2019 blog post, "U.S. Policymaker Should Stick to Their 24 GHz Spectrum Band Plan," addressed disagreement among certain federal agencies regarding the use of that recently-auctioned spectrum. Importantly, the panelists on the Federalist Society's January 7 teleforum acknowledged that the U.S. delegation had achieved a united front on the 24 GHz band when it arrived in Egypt for the WRC-19. 

MPA on USMCA: Facilitates Growth

The statement below from Charles Rivkin, the head of the Motion Picture Association, is important, and especially for what it says about the size of the exports by US film, television, and streaming businesses. $17.2 billion annually is a lot of money that translates into a lot of jobs. I can't vouch for the number, but assuming as I do that it is fairly accurate, the case for taking actions to reduce piracy is self-evident! 

FOR IMMEDIATE RELEASEJanuary 16, 2020

Statement from Charles Rivkin on USMCA Passage in the Senate     

WASHINGTON  -- The United States Senate today passed the United States-Mexico-Canada Agreement (USMCA). The trade bill now heads to the President’s desk for signature.

The following is a statement from Motion Picture Association Chairman and CEO Charles Rivkin:

“The Motion Picture Association applauds the Senate for passing the USMCA today. Currently, the U.S. film, television, and streaming content industry accounts for $17.2 billion annually in exports and registers a positive trade balance with nearly every country in the world. The USMCA will help the future of our industry look brighter, particularly in Mexico. This deal includes provisions that facilitate the growth of the legal, digital market for creative content while improving tools to address the threat of online piracy, which costs the industry up to $71 billion of revenue lost annually. Future trade deals should account for the constantly changing digital landscape, and we look forward to working with the Administration to build on USMCA and further improve protections for our creative economy. I would like to thank the President, Ambassador Lighthizer, Leader McConnell and Speaker Pelosi for their leadership for passing this important trade agreement.”

Bipartisan Efforts Toward Resolution on Net Neutrality Deserves Support

The debate over net neutrality regulation is certain to continue this year, and it's also certain to be a topic for discussion at the Free State Foundation's Twelfth Annual Telecom Policy Conference – Broadband Beyond 2020: Competition, Freedom, and Privacy. (Register here for the conference, to be held March 10 in Washington DC.) 

As last year drew to a close, Senators Roger Wicker and Krysten Sinema co-authored a December 23, 2019 op-ed in the USA Today highlighting their continuing efforts to seek a congressional compromise that will protect consumers and provide clear rules regarding broadband Internet service providers' (ISPs) network management practices. The Senators' op-ed contains the practical title: "We need to prepare for internet of the future. Here's how Congress can help." Senators Wicker and Sinema offer a reasonable outlook and hope for a legislative resolution on net neutrality and Internet freedom. Many of their basic points were anticipated by former Congressman Rick Boucher back in 2015, when he addressed the need for a legislative compromise on net neutrality and Internet freedom at FSF's Seventh Annual Conference. 

Right now, congressional resolution of this matter in 2020 may appear to be a long shot. But there is nothing to lose by engaging in discussions, and persistence may even lead to a breakthrough. Congress, industry, public interest groups, activists, consumers, and others ought to recommit to forging a new framework for addressing ISP network management practices.  

Registration Open for FSF's Twelfth Annual Telecom Policy Conference

The Free State Foundation will hold its Twelfth Annual Telecom Policy Conference on Tuesday, March 10, 2020, at the National Press Club in Washington, DC. This annual conference is widely acknowledged to be one of the nation's premier communications law and policy events. Registration is now open.

The title for this year's conference is Broadband Beyond 2020: Competition, Freedom, and Privacy.

This is the guarantee: As in previous years, a truly outstanding lineup of senior officials and prominent experts from the FCC, other government agencies, industry, academia, and think tanks will discuss and debate the most important communications and Internet policy issues of the day, including Internet freedom and net neutrality, broadband deployment, competition policy, the 5G rollout, privacy regulation, the changing video services landscape and regulatory environment, universal service, and more.

REGISTRATION IS COMPLIMENTARY, INCLUDING CONTINENTAL BREAKFAST AND LUNCH. BUT YOU MUST REGISTER TO ATTEND.

REGISTER NOW HERE!

#FSFConf 12

Moving WiFi Forward in the 6 GHz Band

On January 3, the Wi-Fi Alliance ("WifiForward") introduced Wi-Fi 6E, a new term to identify Wi-Fi 6 products that can operate in the 6 GHz band. Here is WifiForward's statement announcing the introduction:

“Today, unlicensed spectrum stands out as one of the FCC’s most successful policy experiments ever. By allowing permissionless innovation in a band of spectrum, we’ve seen billions of dollars of economic value created, millions of people and devices connected and terabytes of critical data sent via technology like Wi-Fi. Today’s announcement by Wi-Fi Alliance shows that industry is ready to unleash even more innovation in the 6 GHz band, as soon as the FCC can make it available for technologies like Wi-Fi.”

After issuance of the WifiForward statement, FCC Commissioner Michael O'Rielly tweeted:

Must conclude @FCC proceeding ASAP, including parameters to protect incumbents, getting multiple unlicensed layers (LPI, VLP, & AFC-needing) into innovators' hands. Unlicensed in 6 GHz will be transformative!

I agree with Commissioner O'Rielly. It's important for the FCC to move forward with the 6 GHz proceeding with dispatch.

Consumers Receive High Volumes of Spam Calls, Low Volumes of Spam Texts

Americans are inundated with high numbers of unwanted robocalls, but they receive much lower numbers of unwanted text messages. A survey released in December by Zipwhip, a leading provider of text messaging solutions for businesses, shows that whereas 51% of respondents "often" receive spam over the phone, only 18% "often" receive spam texts. 

The survey findings reaffirm the importance of the Commission's Title I non-regulatory policy for texting. Given the freedom and flexibility to implement solutions, text messaging service providers – not Title II public utility-like restrictions – have successfully curbed unwanted messages. Those providers should remain free to pursue innovative solutions to maintain quality of service. 

According Zipwhip's survey, about 51% responded that they receive spam "often" over the phone and 83% receive spam at least "somewhat often" over the phone. Furthermore, 70% receive spam "often" over email and 92% receive email spam at least "somewhat often." However: "Only 18% of respondents said they get text spam 'often' and only 17% said they receive scam attempts 'often.' Most said they 'rarely' receive these types of messages (41% and 40% for spam and scam, respectively)." Illegal scam rates also are notably higher for voice calls and emails than for texts.

Importantly, the Zipwhip survey figures regarding low rates of unwanted texts vindicates the FCC's determination in its Wireless Messaging Service Order (2018) that text messaging services are lightly- or non-regulated "information services" under Title I of the Communications Act. That determination was amply supported, first and foremost, by the fact that wireless text messaging service capabilities fit the statutory definition of "information services." But the Commission also justified its Title I classification of wireless text messaging services with the compelling policy rationale that entrepreneurial innovation protects subscribers from spam and unwanted texts better than the strictures of public utility regulation. The 2018 Order stated: "In the absence of a Commission assertion of Title II regulation, wireless providers have employed effective methods to protect consumers from unwanted messages and thereby make wireless messaging a trusted and reliable form of communication for millions of Americans." Survey findings of markedly lower rates of unwanted communications via text messaging compared to other media platforms indicate that, a year after the 2018 Order, the policy for non-regulation of texting is succeeding in protecting consumers.

Zipwhip survey figures regarding the high rates of robocalls and emails are consistent with other reports. According to YouMail's Robocall Index, about 58.5 billion robocalls were sent nationwide in 2019. A YouMail analysis found that while about 27% of robocalls provided consumers with important alerts or reminders for things such as a school closure or doctor's appointment, the remaining 73% of robocalls are unwanted or spam. And about 25% of robocalls are illegal scams. It is elsewhere estimated that spam constituted around 55% of global email traffic in 2019. 

The problem of unwanted robocalls and the closely related problem of caller ID spoofing prompted Congress to pass the TRACED Act, which President Trump signed into law on December 31, 2019. Under the TRACED Act, voice service providers are required to make available to consumers – free of charge – technologies to authenticate calls and block robocalls. The Act extends the statute of limitation and increases fines for making unwanted robocalls. Additionally, the Act directs the FCC to undertake rulemakings to further ensure subscribers are protected from one-ring scams as well as other unwanted calls or texts. 

In its implementation of the TRACED Act, the Commission should rightly take aim at the sky-high number of scam calls as well as other unwanted robocalls. And it should exercise its oversight authority over voice service providers to ensure consumers are protected. At the same time, it is imperative that the Commission adhere to its Title I policy for text messaging, which has an established track record in protecting consumers. 

Another Muni Broadband System Bails Out

Often new municipal broadband systems receive much attention, including, of course, by advocates of government-owned broadband networks. A considerable number of the muni systems end up in financial difficulty -- and the cities and towns exit the business.

One of the latest examples of such "privatization" is the muni network owned by the North Carolina towns of Mooresville and Davidson. They sold all their communications assets to Telephone and Data Systems, Inc. (TDS).  Read all about it here.

President Trump Signed the TRACED Act

On December 30, 2019, President Donald Trump signed the TRACED Act into law. As highlighted in my post from December 13, the TRACED Act directs a number of federal agency actions toward combatting unwanted robocalls as well as ID spoofing. The President and the 116th Congress deserve credit for addressing those important consumer protection issues. Now it's up to the FCC and other agencies to begin implementing the law and hopefully help reduce substantially the illegal scams and other unwanted being calls made to American consumers. 

FCC Report on 911 Taxes Identifies States' Improper Use of Funds

On December 19, the FCC published its 11th Annual Report on State 911 taxes, in which it found that nearly $198 million in 911 taxes charged to voice service consumers were improperly diverted to non-911 purposes in 2018. That's down from the $285 million in 911 tax revenues the FCC found were improperly diverted by states in 2017. However, the 11th Report reveals that New Jersey, New York, and Rhode Island continue to be the worst offenders. The 11th Report identified over $186 million in diverted 911 tax dollars from New Jersey and New York combined. It's important that FCC keep these states in the spotlight and that both the Commission and Congress consider measures to hold those states and others accountable.  

House of Representatives Passes the USMCA

On December 19, the House of Representatives passed H.R. 5430, the United States-Mexico-Canada Agreement Implementation Act. The House should be commended for its approval of the USMCA, which contains many provisions that will help strengthen Americans' copyrights in those neighboring nations. 

Free State Foundation President Randolph May and I have previously described the pro-copyright merits of the USMCA and called on Congress to pass it. As I explained in my April 2019 Perspectives from FSF Scholars paper, "Trade Agreements Should Include Stronger Online Copyright Protections":

By negotiating for stronger copyright protections and enforcement in international trade agreements, the U.S. can help curb the significant economic losses sustained by American copyright owners. The proposed USMCA, signed by President Trump in October 2018, and likely to be voted on by Congress this year, includes many provisions that would modernize and strengthen protections for Americans' copyrighted works in Canada and Mexico. For instance, under the USMCA, each member nation would be required to secure copyright owners' full enjoyment of exclusive rights in sound recordings and public performances. Each nation would guarantee contractual liberty so that copyright owners can transfer their rights for full value. Also, each nation would make available stronger remedies in civil copyright infringement cases, including injunctive relief as well as statutory damages. And each nation would authorize their border officials to pursue, seize, and destroy pirated goods. 

For more, see my similarly-titled October 2019 Perspectives paper, "Trade Agreements Should Strengthen Copyright Protections Against Piracy," which touches on the importance of the USMCA and other pro-copyright trade agreements in the context of the current problem of online piracy of movies and TV content. 

Hopefully, the Senate will promptly take up and pass the USMCA in early 2020. 

FCC Reaffirms RF Emissions Standards

On December 4, the FCC released an order to retain its existing limits on radiofrequency (RF) emissions. According to paragraph 2 of the Commission's order: 

After reviewing the extensive record submitted in response to that inquiry, we find no appropriate basis for and thus decline to propose amendments to our existing limits at this time. We take to heart the findings of the Food & Drug Administration (FDA), an expert agency regarding the health impacts of consumer products, that "[t]he weight of scientific evidence has not linked cell phones with any health problems." Despite requests from some to increase and others to decrease the existing limits, we believe they reflect the best available information concerning safe levels of RF exposure for workers and members of the general public, including inputs from our sister federal agencies charged with regulating safety and health and from well-established international standards.

Occasionally, local governments face pressure to assume a new role for themselves as wireless device health regulators based on spurious claims about RF emissions. And some local governments have even made misguided attempts to regulate wireless devices. Local governments ought to take note of the Commission's order and bring it to the attention of any citizens inquiring about RF emissions. The Commission, which has jurisdiction over RF emissions standards, has taken stock of the best evidence and analysis of the FDA in renewing its conclusion that cell phones are safe to use.

Legislation to Combat Robocalls Advances in Congress

On December 4, the U.S. House of Representatives passed the TRACED Act (S. 151) by a 417-3 vote. The House version mergers provisions of S. 151 passed by the Senate in May with the Stop Bad Robocalls Act (H.R. 3375). H.R. 3375 was passed by the House in July. Among its provisions the Engrossed House bill for S. 151 would do the following:

• Require carriers to implement call-authentication technology consumers and small businesses free of charge;
• Require carriers to provide opt-in or opt-out robocall-blocking to consumers free of charge;
• Authorize the FCC to assess penalties of up to $10,000 for each unwanted robocall for those intentionally violating telemarketing restrictions;
• Extend to four years the statute of limitations for Commission enforcement actions against illegal robocalls; 
• Require the Commission to make annual reports to Congress on anti-robocall enforcement;
• Require the Commission to conduct a rulemaking to protect subscribers from unwanted calls or texts from unauthenticated numbers by using new authentication methods; 
• Require the Commission to conduct a rulemaking on combatting one-ring scams meant to impose charges on unsuspecting consumers that call them back; and
• Require the Commission to establish a process for certifying when carriers have or have not participated in private initiatives to trace unlawful robocalls to their source, and also to report on such participation as well as follow through with necessary enforcement actions.

According to reports, the similarity of the House's bill to the Senate bill makes it likely that the Senate will concur in the changes or otherwise reach consensus with the House and that the TRACED Act or "Pallone-Thune bill" will go to President Donald Trump for signature.

Additionally, on December 11, the Senate Commerce, Science, and Transportation Committee passed a substitute version of the Data Analytics Robocall Technology Act of 2019 or "DART Act" (S. 2204). The DART Act would require the FCC to issue a rulemaking on maintaining a list of numbers that are not eligible to be blocked by carriers, such as emergency- or weather-related numbers. The bill also would require the Commission to report to Congress on implementation of call-blocking and caller-ID authentication.

C Proposes to Make 5.9 GHz Spectrum Available for Unlicensed Uses

Today, the FCC adopted a proposed rulemaking that would make valuable unused spectrum available for unlicensed Wi-Fi uses. According to the Commission's news release:

[T]he Commission proposes to designate the lower 45 megahertz of the band for unlicensed uses like Wi-Fi. This 45 megahertz sub-band can be combined with existing unlicensed spectrum to provide cutting-edge high-throughput broadband applications on channels up to 160 megahertz wide. 

Congratulations to the Commission and to Chairman Ajit Pai. The Commission's vote to issue its proposed rulemaking is an important step in making more spectrum resources available for wireless services.  

Report Tracks Tax Hikes on Wireless Consumers in 2019

In a report published by the Tax Foundation in late November, Scott Mackey and Ulrick Boesen provide an abundance of data on wireless taxes as well as government surcharges and fees imposed on wireless consumers. Their report, "Wireless Taxes and Fees Jump Sharply In 2019," tracks the overgrowth of wireless taxes over time and also compares overall tax bills faced by consumers in different states. As a general matter, states should not tax consumers of wireless services at rates higher than their general sales tax rates. Unfortunately,  the problem of over-taxation of wireless consumers appears to be growing. Consider this key report finding: 

Since 2008, average monthly wireless service bills per subscriber have dropped from just under $50 per line per month to $37.85 per month–a 24 percent reduction. However, wireless taxes have increased from 15.1 percent to 21.7 percent of the average bill–a 44 percent increase.

Former NASA Administrator Daniel Goldin on the L-Band

If, like me, you have been following the long-running saga in which Ligado is seeking the FCC's permission to use the long dormant L-Band spectrum, you definitely should read the December 9 letter from former NASA Administrator Daniel Goldin to FCC Chairman Ajit Pai. Mr. Goldin's letter is here.

Please read the entire letter – the essence of which is to vigorously contest NTIA's position that Ligado's applications, which seek to deploy a hybrid terrestrial-satellite network in the L-Band that will provide “Internet of Things” services and boost America’s position in the global race to 5G, should not be granted.

In the meantime, here are a few key excerpts:

•      On 5G, we have fallen behind, and badly. Of most immediate concern is the lack of available, appropriate spectrum for our wireless carriers to deploy. I have spent countless hours educating myself alongside a team of world class telecom executives and spectrum technical experts on these issues, notably L-Band's ability to drastically shorten the timeline for the U.S. to deploy 5G and truly compete with China. I am convinced the technological and policy justifications for allowing this "Ligado" modification to proceed are sound.
• 
  
•     This 35 MHz is not just one spectrum option to advance 5G.  Properly understood, it is absolutely critical to a viable U.S. 5G deployment strategy.

•      Simply put, GPS is not at risk I have studied the record. I have worked with an unparalleled technical team, and over 5000 hours of testing has shown there is no harmful interference. Globally recognized experts continue to refute all claims alleging actual degradation of GPS devices.
• 
  
•       As  it relates to a 1DB C/N out-of-band standard for interference, I agree that we cannot and will not set this unprecedented standard. Doing so would result in the FCC having to revoke substantial amounts of other adjacent spectrum already deployed. Setting such an unreasonably restrictive standard would also have catastrophic consequences on future spectrum in the pipeline. It is possible to protect GPS and still issue the L-Band license modification order; we must do both.
• 
  
•   c Of course, historically, the U.S. has transitioned new spectrum many times. There is always a strong push to preserve the status quo.

I do not purport to be an expert regarding spectrum interference or other engineering matters – although I know a heck of a lot more in this regard than I did over four decades ago when I first began participating in and studying Commission proceedings. I have a high degree of confidence that the FCC's engineers possess sufficient expertise to determine whether Mr. Goldin's and others' assertions regarding the 1DB C/N out-of-band standard for interference are correct. The notion that, if such a 1DB C/N out-of-band standard is adopted the Commission would be required to revoke a substantial amount of already-deployed spectrum, is surely troubling.

While I do not purport to be a spectrum engineering expert, I do consider myself an expert, by dent of considerable practical experience and "battle scars" as well as scholarly study and academic endeavors, regarding the operation of institutional bureaucratic and "public choice" imperatives frequently at work in agency matters. The fact of the matter is that there are incentives for one party or another to use the available administrative processes to protect its turf, and spectrum proceedings – including those involving government agencies – are by no means immune from this "self-protective" phenomenon. As Mr. Goldin aptly puts it, "[t]here is always a strong push to preserve the status quo."

In this instance, I submit, for the reasons Mr. Goldin cites, especially including the need to make available mid-band spectrum so that the U.S. does not fall behind China (or other nations) in the race to deploy 5G, that it is very important for the FCC to reject the urge to preserve the status quo. The Commission needs to move ahead to act on Ligado's long-pending applications. As Mr. Goldin puts it, "the stakes are too high not to act."

It would be wrong, of course, for the FCC not to give due consideration to NTIA's views regarding impacts on the use of government spectrum, especially including impacts on national security. Presumably, the FCC already has done so in preparing a draft order, and if it hasn't, it should.

At the end of the day, however, the FCC is an independent agency that must exercise its responsibility, based on its presumed expertise, to oversee the use of spectrum designated for private sector use in a way that serves the overall public interest.

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Troubled ALI Copyright Project Should Be Abandoned

The American Law Institute's (ALI) Copyright Restatement Project previously has come under fire for its attempt to produce a statement that effectively rewrites federal copyright law. Now, a December 3 letter by Senator Thom Tillis and four U.S. House members rightly criticizes the ALI's effort to reword and supplement copyright statutes passed by Congress. Given the serious concerns voiced by those federal lawmakers and by others, and the unusual nature of the Copyright Project, the ALI should abandon it. 

As Free State Foundation President Randolph May and I explained in a February 2018 blog, the ALI's historic restatements of the laws of property, contracts, torts, and more are treatises intended to objectively describe and summarize common law doctrines in the states. However, federal law is based almost exclusively on federal statutes and federal courts have exclusive jurisdiction over copyright claims. In their letter, Senator Tillis and his House colleagues point out that "laws created through federal statute, including federal copyright law, are ill-suited for treatment in a Restatement." Register of Copyrights Karyn Claggett made this same point in January 2018 when she wrote to the ALI that "[t]here can be no more accurate statement of the law than the words that Congress has enacted… and those that the Copyright Office has adopted in its regulation." 

In their letter, Senator Tillis and the U.S. House members observed that the ALI's Council approved two sections of the proposed ALI Copyright Restatement in mid-October of this year. Sections approved by ALI's Council must also be approved by its membership before they are made public. Yet earlier copyright section drafts have been publicly criticized by the Register, academics, and copyright lawyers for misconstruing the meaning of federal copyright statutes and for filling in statutory gaps with the ALI drafter's preferred views. Gap filling by ALI Reporters is inconsistent with the historic purpose of restatements: restating what the law is. Rather, such gap filling is likely to produce a restatement of what ALI reporters think the law ought to be. 

Indeed, the ALI's Copyright Project appears to be pursuing a course that was sharply criticized by the late Justice Antonin Scalia. In Kansas v. Nebraska (2015), Justice Scalia wrote: "Over time, the Restatements' authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be." In addition to confusing black-letter copyright law with aspirational viewpoints, inserting ALI reporter conclusions about unsettled points of law into a Copyright Restatement poses serious methodological concerns. As Senator Tillis and his colleagues put the question to the ALI: "When there are gaps in the statutory or case law, how do the Reporters decide when to fill in those gaps as opposed to declining to take a position?" 

Senator Tillis and the U.S. House members directed several other pointed questions to the ALI that touch on purpose, methods, bias, and more. Those questions should be taken seriously, and the ALI should heed the warning given by these federal lawmakers. Many states have passed laws or resolutions to curb or reject the influence of the ALI's recent Insurance Liability Restatement. To their credit, Senator Tillis and his colleagues indicate their willingness to similarly push back against any future Copyright "Restatement" that effectively rewrites federal copyright law. As they wrote to ALI: "Since copyright law is predominantly federal law, codified in Title 17, it would be Congress, and not the states, that would take action in this case."

Perhaps earlier, ALI Reporters could have expressed their views on copyright law and policy through a Statement of Principles or some other vehicle. But because the ALI has shown an unwillingness to rethink its approach, the best thing the ALI can do now is abandon its Copyright Restatement Project. 

FCC Should Green Light Wireless Services in L-Band Spectrum

According to reports, the FCC reportedly has prepared a draft order approving mobile wireless operations in unused L-Band spectrum. A November 18 letter by the Defense Secretary reportedly disagrees with the FCC's proposal on certain points and repeats views already known to the Commission when it prepared the draft. The Commission has ultimate responsibility over the spectrum, and the agency should be undeterred in approving its draft order so that long fallow valuable L-Band spectrum can be put into commercial use. 

It's important to our nation's economy and its quest for global leadership in wireless to free up as much spectrum as possible for 5G and other advanced mobile services. If approved, Ligado Networks' modified applications would put 30 MHz of L-Band spectrum to use, generating economic benefits potentially between $250 and $500 billion. In July 2018, Free State Foundation President Randolph May and I submitted reply comments in the Commission's proceeding, recommending Ligado's applications be approved. 

Ligado's modified applications to deploy a hybrid satellite-terrestrial wireless network present the FCC's best near-term opportunity to make available lower-middle-band spectrum for next-generation mobile services – including 5G. As research firm LightShed Partners has explained: "Ligado's spectrum offers incremental wireless data capacity, which is needed not only for the ongoing wireless data growth on existing LTE networks but also to enable higher use 5G customers. LightShed has identified the potential for C-Band and mmWave spectrum to be paired with Ligado's L-Band spectrum for uplinks using dynamic spectrum sharing (DSS), thereby enhancing the value and opportunities for LTE and 5G in those higher bands. According to LightShed, "Ligado could supply an operator like Verizon with at least two years of wireless data growth on a network," and it could similarly help meet T-Mobile's capacity needs. 

The Commission submitted a draft order regarding Ligado's L-band applications to an interagency advisory review board in October. The review is set to conclude on or about December 6. Given that the review is ongoing and also that the Department of Defense is a member of the interagency board, it's unusual that Defense Secretary Mark Esper went outside the process and released to the press his November 18 letter. The letter claims that Ligado's proposed network would cause interference with services in other bands – claims the Defense Department previously made to the Commission in a June 2019 letter. Ligado has previously disputed those interference claims, and the Commission surely considered them in reaching its own conclusion on the matter. 

In some ways, the Defense Department's last-minute public rehash of old arguments is reminiscent of tactics used by other agencies attempting to derail the FCC's implementation of its 24 GHz spectrum band plan even after the auction was concluded. It's not unusual for government agencies or other institutions to have different viewpoints on technical matters. To avoid permanent interagency gridlock, federal law gives to the Commission the final say on how spectrum for non-government purposes will be used. In the case of the 24 GHz band, the Commission refused to be deterred and has followed through on its spectrum plan.

The Commission should show the same determination in the case of the L-Band. The agency should now proceed with dispatch to act on Ligado's modified applications. 

State AGs Should End the T-Mobile/Sprint Lawsuit and Make Way for 5G

In late November, Texas and Nevada became the two latest states to withdraw from the antitrust lawsuit challenging the T-Mobile/Sprint merger. The case is thin on the merits, and the FCC's order approving the merger recognizes the benefits that the combined T-Mobile/Sprint's nationwide 5G network will provide consumers. Now that several states have joined the U.S. Department of Justice's proposed settlement regarding T-Mobile/Sprint, the remaining State Attorneys General should withdraw their lawsuit. 

The U.S. is in a tight race to 5G with China, and every opportunity for advancing 5G services at home should be pursued. Analysts such as Accenture Strategies project that 5G networks will provide average speeds at least ten times faster than 4G LTE networks and provide peak speeds perhaps 100 times faster. Advanced 5G networks will enable smart-city applications, as well as precision agriculture, industrial, and other uses. Importantly, the T-Mobile/Sprint merger will fast-track nationwide 5G coverage. In its November 2019 order approving T-Mobile/Sprint, the FCC found that the merger "will enable deployment of a more robust, nationwide 5G network than either standalone company could deploy on its own." 

Due to the consumer welfare benefits of more rapid and widespread 5G rollout, the T-Mobile/Sprint merger is well positioned to succeed in court against the remaining State AGs. Although the State AGs' take the position that T-Mobile/Sprint merger isn't necessary for 5G deployment in the U.S., that position amounts to little more than state government lawyers' second-guessing of the investment-backed business judgment of wireless carriers in a highly competitive market. As the FCC's order approving the merger recognized: "Sprint has not widely deployed its 2.5 GHz spectrum assets and our technical analysis predicts that on a standalone basis it would fail to cover nearly half of the country with 5G services on its 2.5 GHz spectrum, even assuming it has the financial ability to reach its previously planned deployment level." The Free State Foundation's reply comments in the merger proceeding as well as a May 2019 blog by Free State Foundation President Randolph May identify Sprint's significant financial debt as well as its streak of annual revenue declines dating back to 2013. 

Moreover, the State AGs' amended complaint allegation that the merger would substantially lessen competition rests on a largely static and unduly narrow picture of today's dynamic mobile market. It downplays the increased competition that the New T-Mobile will pose to current market leaders AT&T and Verizon. Additionally, the State AGs' complaint downplays competition from regional and local wireless providers, as well as competition from entrants Charter and Comcast. As of the third quarter of 2019, those two hybrid/MVNO providers served nearly 800,000 and nearly 1.8 million subscribers, respectively, with continued subscriber increases widely expected. DISH Network also has plans in the works to launch a nationwide mobile wireless network. And DISH's acquisition of Sprint's Boost prepaid brand makes it even more difficult for the State AG's to show that the merger would harm the prepaid market segment. 

Texas and Nevada are not the only states that have withdrawn from the State AGs' antitrust lawsuit against T-Mobile/Sprint. Colorado and Mississippi withdrew in October 2019. Ten states have instead joined with the Justice Department in a proposed settlement with T-Mobile and Sprint.

Now it's time for the remaining 14 State AGs should end their lawsuit and make way for 5G.