FSF Submits Reply Comments on the Safeguarding and Securing the Open

 

Today, Free State Foundation President Randolph May and Director of Communications Policy Studies Seth Cooper filed reply comments showing why the FCC’s proposal to convert Internet service providers into public utilities is unwise and unlawful.

Here are a few key excerpts from the Introduction and Summary:

 

"It's well-documented that proponents of public utility regulation of broadband Internet services decried the RIF Order’s repeal of that regulation as the unleashing of a dystopian nightmare in which the Internet would grind to a halt and broadband providers would prey on consumers, innovators, and small businesses. Of course, their deliberately outlandish claims were quickly proven wrong. For this reason alone, the views of these pro-utility regulation advocates should be given no credence whatsoever. Indeed, were they to be given credence, the Commission’s own credibility would be further called into question.”

"Despite being so spectacularly wrong about the effect of the RIF Order, many of those same pro-regulatory proponents are back, calling for the reimposition of the short-lived public utility regime established in the now-repealed 2015 Title II Order. The FCC cannot accord the claims of these parties – or the claims of allied parties – any credibility whatsoever regarding the future of broadband services when they were so wrong last time around. If it does so, it will confirm that the Commission is intent on regulation as an end in itself, not a means to an end when warranted. Since the RIF Order was adopted in late 2017, Internet speeds have significantly increased. Next-generation technologies such as fiber, 5G mobile wireless, and fixed wireless access have deployed and offer significantly improved capabilities as well as more competitive choices for consumers. And broadband service pricing has been more consumer friendly and resistant to price increases than most other service markets.”

"Title II reclassification will not protect Internet openness, national security, or public safety. To the limited extent that pro-utility regulation comments actually try to prop up the Commission’s dubious national security, public safety, cybersecurity, and network resiliency rationales for Title II reclassification, such comments offer no analysis or facts, or concrete dangers or solutions, to substantiate those claims. There is no reason to expect government interference, based on supposed bureaucratic expertise, will make networks perform better or more safely. Comments opposed to the proposed rulemaking rightly point out that broadband Internet service providers (ISPs) already have economic incentives to make available high-performance, resilient networks. Indeed, ISPs demonstrated their performance capabilities under the stress of traffic demand spikes amidst COVID-related government-imposed lockdown orders.”

"It is no surprise that comments by many longtime supporters of public utility regulation of broadband do not cite any specific credible examples of ISPs blocking or throttling their subscribers’ access to legal content of their choice. Instead of the predicted broadband Internet wasteland following Title II regulation repeal, since early 2018 there is no record evidence that ISPs engage in such harmful conduct or that they are likely to do so. The fact that ISPs do not block or throttle indicates that the existing light-touch policy based on the Commission’s transparency rules and Federal Trade Commission enforcement of ISP terms of service pledges is working. ISPs’ consensus against blocking or throttling cannot be explained away by pointing to state net neutrality laws. Net neutrality laws exist only in a handful of states, and yet blocking and throttling have not occurred in states that have no net neutrality laws.”

"We agree with comments opposed to the proposed rulemaking that the Commission’s pretensions to secure or safeguard Internet openness, national security, and public safety are illusory and arbitrary because the rulemaking focuses on only one aspect of the Internet – Internet access services – and does not address far more serious concerns posed by other aspects of the Internet – including Big Tech platforms and other online edge providers that actively censor, shadow ban, and deprioritize speech content. Also, the Commission’s myopic focus on ISPs for supposed security and safety purposes leaves completely untouched numerous other major providers in the Internet ecosystem that may pose much greater risks to security and safety than ISPs.”

A PDF of the complete FSF reply comments, with footnotes, is here.

Ookla Year-End 2023 Reports Shows Further Rise in U.S. Broadband Speeds

On January 16, Ookla released its Global Speed Index reports for December 2023, including for the United States. According to Ookla, median upload/download speeds in the U.S. for December 2023 were 227.27/26.59 Mbps for fixed broadband services and 111.01/9.68 Mbps for mobile broadband services. Those overall figures show significant improvement over Ookla's findings from March 2023 of 197.84/23.02 Mbps for fixed broadband services, and 81.26/9.44 Mbps for mobile broadband services. (For background, see my April 2023 blog post, "Ookla Reports Rising Fixed and Mobile Broadband Speeds in Early 2023.")

 

Ookla's December 2023 findings are yet another indicator of the success of the federal light-touch regulatory framework for broadband Internet access services, which encourages private market investment and innovation. That pro-free market approach was established in the FCC's 2017 Restoring Internet Freedom Order. Supporters of public utility regulation made dire predictions that the RIF Order would cause the Internet to slow to one word at a time or shuffle most Americans off into slow lanes while corporate elites enjoy fast lane privileges. The scare stories have proven totally false. 

 

On December 14, the Free State Foundation filed comments in the Securing and Safeguarding the Open Internet proceeding, recommending that the FCC stick to the pro-market policy of the RIF Order as the best way to promote continued advancements in broadband access for all Americans. The RIF Order's repeal of the agency's short-lived public utility regulation did not slow anyone’s speeds, and Ookla’s reports instead show that broadband speeds have continued to increase. FSF's comments urged the Commission to not reimpose public utility regulation on broadband Internet access services. 

Communications Law and Policy Priorities for 2024

It’s usual at the beginning of the year to take stock, look ahead, and articulate priorities for the coming year, and perhaps beyond. Of course, we do that here at the Free State Foundation, not just because it’s usual, but because it is a good management practice that helps us focus more effectively on the tasks ahead. And, truth be told, we don’t just do it at the beginning of the year; we do it all year long.

There’s widespread agreement that, regarding communications law and policy, 2024 almost certainly will be challenging and consequential. In part this is because there is now a 3-2 Democrat majority at the FCC, so Chairwoman Jessica Rosenworcel will be able to move forward to consider items – think, for example, regulating Internet access providers as public utilities – that otherwise might well lack a majority. And, aside from that, 2024 is an election year. Election years present heightened opportunities for education and agenda-setting as public policy priorities are often fashioned and sharpened.

So, I want to call attention to the Free State Foundation’s just-published “Communications Law and Policy Priorities for 2024” compiled by FSF’s senior scholars. Please keep in mind that the Priorities document is not intended to be the “final word.” While it’s the way we see things now, the document necessarily is intended to be a “work in progress.” At the Free State Foundation, we take pride in our ability to anticipate what issues will become priorities that aren’t now and our agility to constantly reevaluate and look ahead.

 

Here are the top-line Priorities addressed in the document:

 

•  Reject Public Utility Regulation of Internet Service Providers

•  Require Proper Implementation of Massive Broadband Subsidies

•  Reopen the Spectrum Pipeline and Act to Fill It

•  Reform the Broken Universal Service Subsidy Regime

•  Remove Outdated Video Regulations

•  Establish a Uniform, National Privacy Framework

•  Protect First Amendment Rights and Cultivate a Culture of Free Speech

 

For each of these, there are bullet points that elaborate and contain specific action items. But please understand that the intent here is not to “write a paper” on each one. That’s part of our week-to-week, month-to-month work.

I should add that at FSF, we also do important work that falls outside this “Communications Law and Policy” list, such as in the Intellectual Property, Constitutional Law, and Administrative Law areas.  

A final important word: On our website, we proclaim our mission to be “to promote, through research and educational activities, understanding of free market, free speech, limited government, and rule of law principles . . . and to advocate laws and policies true to these principles.”

In developing the priorities above, and in all our work, we do our best to remain faithful to those principles. So, in this regard, I keep top-of-mind Alexander Hamilton’s exhortation: “In disquisitions of every kind, there are certain primary truths, or first principles, upon which all subsequent reasoning must depend.”

FCC Chairwoman Rosenworcel to Congress: Absent Additional Funding, Affordable Connectivity Program Will End in April

In letters to congressional leaders dated January 8, 2024, FCC Chairwoman Jessica Rosenworcel warned that the Affordable Connectivity Program (ACP), a broadband-service subsidy relied upon by over 22 million lower-income households, is projected to run out of money at some point in April of this year.

Established by the Infrastructure Investment and Jobs Act (IIJA) in 2021, the ACP provides eligible households with between $30 and $75 per month to be applied toward (and which, in many instances, covers) a monthly broadband subscription from the participating Internet service provider (ISP) of their choice. Absent additional congressional action, the ACP will end when the hefty initial appropriation – $14.2 billion – is depleted.

In October 2023, the Biden Administration asked Congress to appropriate sufficient funding to extend the ACP through the end of 2024: $6 billion. Chairwoman Rosenworcel's letters echoed that request, as did a White House Fact Sheet released the same day.

As Free State Foundation President Randolph May noted approvingly in an October 2022 Perspectives from FSF Scholars, the ACP "enables millions of lower-income consumers to participate on a relatively equal footing in the competitive marketplace for high-speed Internet access." He therefore called for Congress to "extend and revise" the ACP, specifically by "target[ing] its limited resources to those most in need."

And as I have pointed out in a series of posts to the FSF Blog, the ACP enjoys bipartisan support.

According to Chairwoman Rosenworcel, "the Commission expects to begin taking steps this week to start orderly wind-down procedures to give participating providers, households and other stakeholders sufficient time to prepare for the projected end of the ACP."

Those actions will include: (1) providing ISPs with "guidance on the timing and requirements for notifying participating households," (2) setting a date after which no additional households may enroll, and, ultimately, (3) formally determining a date certain for the program's termination.

Press Release: FSF Comments – Implementation of the National Spectrum Strategy

On January 2, 2024, Free State Foundation President Randolph May and Senior Fellow Andrew Long filed comments in response to the National Telecommunications and Information Administration's Notice of Opportunity for Public Input on the Implementation of the National Spectrum Strategy.

Below are the first three paragraphs and the concluding paragraph of FSF's Comments:

These comments are submitted by the Free State Foundation (FSF) to the National Telecommunications and Information Administration (NTIA) in response to its Notice of Opportunity for Public Input (Notice) on the National Spectrum Strategy (Strategy) dated November 13, 2023. Simply put, the Strategy fails to tackle the difficult work necessary to rationally balance government and commercial demands for this high-value, limited resource. Consequently, while the headline – "this Strategy identifies five spectrum bands totaling 2,786 megahertz of spectrum for in-depth, near-term study to determine suitability for potential repurposing to address the nation's ever-evolving needs" (emphasis added) – at first glance may appear to represent real progress, the bottom line is that there is no guarantee that a single megahertz of that total will be repurposed. While making available sufficient unlicensed spectrum is an important objective, what is perhaps immediately concerning is the fact that the Strategy fails to identify sufficient mid-band spectrum that could be licensed on an exclusive basis, thereby jeopardizing our nation's ability to compete effectively in the global race to 5G.

It has been nearly ten months since NTIA requested comments from the public "on the development and implementation of a National Spectrum Strategy for the United States." In the interim, no new spectrum has been added to the pipeline – and Congress has failed to reinstate the Federal Communications Commission's (FCC or Commission) spectrum auction authority. All told, what was a pressing need in March 2023 is now a crisis.

Commercial applications demand more spectrum without further delay. Domestic mobile carriers require additional licensed capacity, particularly mid-band spectrum, to maintain their economically essential global leadership in the rollout of 5G. And even as substantial amounts of additional unlicensed spectrum have been made available in recent years, consumer demand for Wi-Fi and other unlicensed uses continues to explode. The Notice, and especially the "Memorandum on Modernizing United States Spectrum Policy and Establishing a National Spectrum Strategy" issued contemporaneously by the White House (Spectrum Policy Memorandum), arguably represent an incremental step forward to address these spectrum deficits. However, far bolder and more timely action is needed.

*****

The reality, however, is that NTIA must embrace the challenging work required to identify – and in fact repurpose – government-held spectrum that would better serve our nation's interests were it put to commercial use, whether on a licensed or unlicensed basis. And do so in a timely manner. The Spectrum Policy Memorandum issued by the White House, by establishing hard deadlines and clear processes to resolve interagency disputes, acknowledges the need for decisive action. Unfortunately, the Strategy itself may create the illusion of progress, while merely kicking the can further down the road.

A PDF of the complete set of Free State Foundation Comments, with footnotes, is here.

SAVE THE DATE!! FSF’s Sixteenth Annual Policy Conference - March 12, 2024

FREE STATE FOUNDATION

Sixteenth Annual Policy Conference

 SAVE THE DATE!

 

WHAT: FSF's Sixteenth Annual Policy Conference

WHERE: National Press Club, Washington, DC

WHEN: March 12, 2024 – 9:00 AM - 2:30 PM

The Free State Foundation will hold its Sixteenth Annual Policy Conference on March 12, 2024, at the National Press Club in Washington, DC. This annual conference is widely acknowledged to be one of the nation's premier law and policy events.

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, as well as competition policy and other issues.

PLEASE MARK YOUR CALENDAR FOR MARCH 12, 2024!

#FSFConf16