Senators Reintroduce Bill for Faster Broadband Permitting on Federal Land

According to reports, on March 5, Senators John Thune, Ben Ray Luján, and John Barrasso reintroduced the Accelerating Broadband Permits Act. The bill's purpose is to improve executive agencies' processing of permit applications to construct communications facilities on federal land. 

As explained in my blog post from August 7, 2024, executive agencies with supervision over federal lands have been found by have problems processing permit applications within the MOBILE NOW Act's 270-day deadline. The Accelerating Broadband Permits Act is intended to help identify instances where the agencies are at risk of missing deadlines deadline and ensure they meet them.

 

The Accelerating Broadband Permits Act isn't a big, wasteful spending bill. It is an agency accountability bill that could help accelerate broadband network on land held in trust or owned by the federal government. Senators Thune, Luján, and Barrasso deserve credit for bringing this bill back. Hopefully, the Act fares better in the 119th Congress and receives timely consideration.

 

(At the time of this blog post, no bill number or link to the bill are available on the Senate's website.) 

Pennsylvania Bill Would Turn Broadband Internet Networks into Public Utilities

On March 17, Pennsylvania House Bill 924 was referred to a legislative committee in that state's lower chamber. If it were to become law, the bill would change the definition of "public utility" under Pennsylvania law to include "[p]roviding persons with the ability to connect to the Internet through equipment that is located in this Commonwealth." In short, PA House Bill 924 is a state net neutrality bill, that would impose no blocking, no throttling, no paid prioritization, and other restrictions on provider network management, and delegate authority to the state's public utility commission to regulate broadband Internet access services.  

PA House Bill 924 was filed in the wake of the Sixth Circuit's March 11 order denying a rehearing en banc on that court’s January 2 three-judge panel decision to vacate the FCC's 2024 Title II Order. The state bill also follows closely on the heels of the Supreme Court's February 24 order deny a rehearing on its prior order to deny a writ of certiorari in New York State Telecommunications Association v. James. The denial of a rehearing in James leaves in place a Second Circuit decision from April 2024 that upheld New York State’s Affordable Broadband Act that imposed rate regulation on interstate Internet broadband access services offered by broadband providers in that state.

 

It seems unlikely, if not implausible, that Congress intended to open up jurisdictionally interstate information services (previously known as "enhanced services") like broadband access to state regulation when it established non-regulated or lightly-lightly regulated Title I classification for "information services" in the Telecommunications Act of 1996. But according to three circuit courts of appeal, that apparently is what Congress did. The Second, Ninth, and D.C. Circuits – have concluded that the FCC's decision in the 2017 Restoring Internet Freedom order to classify broadband access services as Title I services had the effect of removing the agency's jurisdiction over interstate broadband services, thus preventing the Commission from preempting state public utility regulation of those same services. 

 

For some further context, the FCC's proceeding that led up to the FCC's 2024 Title II Order cited zero instances of blocking, throttling, or harmful paid prioritization arrangements. Moreover, all or nearly all broadband ISPs in America have terms of service pledges to not engage in blocking, throttling, or harmful paid prioritization. So long as broadband access services are Title I "information services" (and not Title II "telecommunications services") those service term pledges are enforceable by the Federal Trade Commission under its authority to address unfair and deceptive trade practices. 

 

Expect the issue of state-level public utility regulation of broadband Internet access services, including price controls, to be a subject of discussion at the Free State Foundation's Seventeenth Annual Policy Conference – #FSFConf17 – on March 25, in Washington, D.C. Register today for the conference. 

FCC Chairman Brendan Carr a Keynoter at FSF's March 25 Conference! Register Now!

 Registration Now Open!

New Keynote Speaker Announced!

 

Brendan Carr

Chairman, Federal Communications Commission

 

Previously Announced Keynoters Include: 

 

Senator Ted Cruz

 

Jonathan Turley

 

Ajit Pai

 

Nathan Simington

 

WHAT: FSF's Seventeenth Annual Policy Conference

 

WHERE: National Press Club, Washington, DC

 

WHEN: Tuesday, March 25, 2025

 

The Free State Foundation will hold its Seventeenth Annual Policy Conference on March 25, 2025, at the National Press Club in Washington, DC. This annual conference is acknowledged to be one of the nation's premier law and policy events.

 

As always, a truly outstanding lineup of senior officials and prominent experts from the FCC and Congress, and from 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 other topical law and policy issues involving free market competition, free speech, and the rule of law.

 

With a new Trump administration, a new Congress, and new leadership at the FCC, FTC, and other agencies, this promises to be one of the most impactful of FSF's annual conferences.

 

REGISTRATION IS COMPLIMENTARY, INCLUDING CONTINENTAL BREAKFAST AND LUNCH.

BUT YOU MUST REGISTER TO ATTEND.

REGISTER HERE!

 

#FSFConf17

USF Tax Rises to Record High 36.6%

On March 13, the FCC's Office of Managing Director announced that the Universal Service Fund (USF) contribution factor for the second quarter of 2025 will be 36.6%. Absent intervention by the FCC's Commissioners, the proposed rate will soon go into effect. 

The expected rate hike to 36.6% appears to result in another new all-time high for the "USF Tax." It is far higher than the rate from a few years ago. 

 

The U.S. Court of Appeals for the Fifth Circuit rightly called USF surcharges an unconstitutional "USF Tax." They are imposed on voice consumers based on a percentage of the long-distance part of their monthly bills. The money paid by consumers is collected by the voice carriers and passed on to the Universal Service Administrative Company (USAC), the private corporation established by the FCC to administer the USF program and dole out subsidies to program recipients. 

 

The Supreme Court granted a writ of certiorari in FCC v. Consumers' Research, a case involving the issue of whether the USF contribution mechanism is constitutional under the Article I, Section 1 Legislative Vesting Clause. The Court will hold oral arguments in the case on March 26. 

 

USF reform is one of the topics that is sure to be part of the discussion at the Free State Foundation's upcoming Seventeenth Annual Policy Conference – #FSFConf17. The conference will be held in Washington, D.C. on March 25. Conference registration and the conference agenda are available online. 

House Commerce, Commerce Department Commence BEAD Reforms

Multiple efforts are underway to reform the beleaguered $42.45 billion Broadband Equity, Access, and Deployment (BEAD) Program.

Representative Richard Hudson (R-NC), Chairman of the House Energy and Commerce Committee’s Subcommittee on Communications and Technology – and Keynoter at the Free State Foundation's upcoming Seventeenth Annual Policy Conference – recently introduced legislation designed to "eliminate the burdensome Biden regulations so that we can get money out the door and shovels into the ground as soon as possible."

In his Opening Statement before "Fixing Biden's Broadband Blunder," a hearing held on March 5, 2025, Chairman Hudson unveiled the Streamlining Program Efficiency and Expanding Deployment (SPEED) for BEAD Act. In the accompanying Press Release, he pointed out that "not a cent of the BEAD funds have been put towards actual deployment for even one household. This is unacceptable. Our rural communities need to be fully connected, and this legislation will do that."

Specifically, the SPEED for BEAD Act would:

• Clarify that BEAD Program money is to be used for two purposes: broadband deployment and workforce development. Consistent with that refined focus, the bill would replace the word "Equity" with the word "Expansion" in the program's title.

• Expressly require the return to the U.S. Treasury of unused funds.

• Prohibit the consideration, when awarding grants, of the following: prevailing wages, project labor agreements, union workforces, collective bargaining, local hiring, commitments to union neutrality, labor peace agreements, workforce composition (or the reporting thereof), climate change, the regulation of network management practices (including data caps), open access requirements, and certain letter of credit requirements.

• Provide applicants greater flexibility with respect to service area.

• Expand the definition of "reliable broadband service," consistent with the principle of technological neutrality, to include "any broadband service that meets the performance criteria … without regard to the type of technology by which such service is provided."

• Expound upon the existing ban on the regulation of rates (see below).

Regarding rate regulation, the bill makes clear that neither NTIA nor the states may:

[R]egulate, set, or otherwise mandate the rates charged for broadband service or the methodologies used to calculate such rates, for consumers generally or for any subset of consumers, including through the capping or freezing of such rates, the encouragement of another entity to regulate such rates, or the use of rates as part of an application scoring process.

The SPEED for BEAD Act explicitly would ban any such forms of rate regulation even if approved prior to its enactment or adopted "in conjunction with the requirement to offer a low-cost broadband service option."

The same day, Secretary of Commerce Howard Lutnick issued a Statement announcing that:

Under [his] leadership, the Commerce Department has launched a rigorous review of the BEAD program. The Department is ripping out the Biden Administration's pointless requirements. It is revamping the BEAD program to take a tech-neutral approach that is rigorously driven by outcomes, so states can provide internet access for the lowest cost. Additionally, the Department is exploring ways to cut government red tape that slows down infrastructure construction.

Since the passage of the legislation that created the BEAD Program, the Infrastructure Investment and Jobs Act, in 2021, FSF scholars repeatedly have criticized the Biden Administration for its prioritization of extraneous policy preferences that discouraged proven broadband providers from participating, raised costs, and ground implementation to a standstill.

They include impermissible rate regulation, inappropriate labor- and climate-related mandates, the unjustified promotion of government-owned networks, and a pro-fiber bias that brazenly defied the statute's technologically neutral intent. 

 

Press Release: Reaction to FCC Chairman Carr's Deregulation Initiative

March 12, 2025

Free State Foundation President Randolph May issued the following statement reacting to Chairman Carr's new deregulatory initiative:

I commend Chairman Carr for undertaking this deregulatory effort, and I'm optimistic it will bear fruit in eliminating hundreds of existing regulations that no longer should be on the books and that actually inhibit new entrants from competing. It's undeniable that technological developments over the last several decades have enabled marketplace competition that has rendered legacy regulations unnecessary and often burdensome and costly. This is not good for consumers or for the American economy. Some good progress was made in this regard during Ajit Pai's chairmanship, but there's much more work to be done, as Chairman Carr realizes.

PRESS RELEASE: The Sixth Circuit's Denial of Rehearing Should Be Net Neutrality's Death Knell

 

Free State Foundation President Randolph May released the following statement regarding the Sixth Circuit’s denial of a petition to rehear a panel’s January 2 decision overturning the FCC’s latest net neutrality regulations: 

“The Sixth Circuit’s denial of a petition for a rehearing en banc of a panel’s January 2, 2025, decision overturning the Biden FCC’s imposition of a public utility-like regulatory regime on broadband providers under the rubric of so-called 'net neutrality' should not be surprising. After all, six different Sixth Circuit judges already had ruled that the FCC’s regulations were unlawful, or in the case of the earlier stay of the FCC’s order, likely unlawful. Indeed, not one judge requested a vote on the rehearing petition.

 

“What would be surprising now — and a fruitless waste of time and resources — would be if the pro-public utility regulation advocates continued to pursue further litigation. There is no evidence of demonstrable consumer harm or marketplace failure that would justify the type of public utility regime that the Biden FCC sought to impose on broadband providers. In any event, the appropriate place for establishing a proper (hopefully deregulatory) framework for broadband policy, if a new framework is needed, is Congress."  

PRESS RELEASE: Eleventh Circuit's Vacation of Gray Television's Forfeiture Should Raise Caution Flags at FCC

Free State Foundation President Randolph May issued the following statement regarding the Court of Appeals for the Eleventh Circuit's opinion today vacating a forfeiture penalty of $518,283 assessed against Gray Television, Inc: 

The Free State Foundation filed an amicus brief in Gray Television's appeal of its forfeiture because of certain concerns relating the FCC's rationale for imposing the forfeiture, including whether Gray's due process rights had been violated for lack of fair notice regarding whether Gray's conduct actually violated the Commission's rules as they had been interpreted. While the court did not address the specific points FCC raised, it did hold that the entire
forfeiture should be vacated because the Commission failed to provide fair notice and acted arbitrarily and capriciously in failing to explain the basis for its Notice of Apparent Liability (NAL).

 

The FCC's enforcement regime has been plagued by problematic examples of overreach and abuse in the past, which is a major reason why FSF participated as an amicus in the Gray appeal. Before the agency is allowed to impose massive penalties, it's required as a matter of due process that parties regulated by the agency have fair notice of what's expected of them to comply with Commission rules. Conservatives and rule-of-law advocates have always been rightly concerned by "regulation by enforcement" – that is using an enforcement regime to establish new heretofore unknowable regulatory requirements.

 

The FCC's recent imposition of a massive forfeiture on Telnyx, and others, may well fall into this category, raising similar due process and fair notice concerns regarding whether the conduct alleged to be violative of the agency’s rules was known or knowable.

House Commerce Privacy Working Group Seeks Input

In a February 2025 post to the FSF Blog, I reported on a press release from House Commerce Committee Chairman Brett Guthrie (R-KY) and Vice Chairman John Joyce, M.D. (R-PA) announcing the creation of a working group focused on federal comprehensive data privacy legislation. That working group is now asking interested parties to provide responses to a Request for Information (RFI).

Released on February 21, 2025, the RFI begins by acknowledging two points I have highlighted repeatedly in writings for the Free State Foundation, most recently in a December 2024 Perspectives from FSF Scholars.

One, that "the challenge of providing clear digital protections for Americans is compounded by the fast pace of technological advancement and the complex web of state and federal data privacy and security laws, which in some cases create conflicting legal requirements."

And two, that "Members of Congress have spent many years working toward federal comprehensive data privacy and security standards to bring consumer protections into the digital age while ensuring that the U.S. continues to lead in a globally competitive environment."

The information sought by the RFI is organized into the following six specific categories:

• Roles and Responsibilities: What types of entities collect, process, and sell personal information? What obligations should apply to each?

• Personal Information, Transparency, and Consumer Rights: What specific consumer protections should a privacy law include? What heightened safeguards should apply to sensitive personal information? How should covered entities provide disclosures to consumers?

• Existing Privacy Frameworks and Protections: What can be learned from the existing "patchwork" of state privacy laws? To what extent should a federal privacy law preempt state privacy laws?

• Data Security: How can federal lawmakers ensure the security of consumer data?

• Artificial Intelligence (AI): How might a federal privacy law account for existing state laws addressing AI, including those relating to automated decision-making?

• Accountability and Enforcement: What are the pros and cons of exclusive enforcement by the FTC and state Attorneys General? Should a federal privacy law include a safe harbor?

A seventh, catch-all, category encourages interested parties to submit "any additional information that may be relevant to the working group as it develops a comprehensive data privacy and security law."

Responses, due by April 7, 2025, should be emailed to PrivacyWorkingGroup@mail.house.gov.

Former FCC Chairman Ajit Pai a Keynoter at FSF's 17th Annual Conference March 25!

Registration Now Open!

 

 Keynote Speaker Announced!

 

 

Former Chairman, Federal Communications Commission, 

and Partner, Searchlight Capital

 

Previously Announced Keynoters

 

Senator Ted Cruz

 

Jonathan Turley

 

Nathan Simington

 

WHAT: FSF's Seventeenth Annual Policy Conference

 

WHERE: National Press Club, Washington, DC

 

WHEN: Tuesday, March 25, 2025 -- 8:30 a.m. - 2:30 p.m.

 

The Free State Foundation will hold its Seventeenth Annual Policy Conference on March 25, 2025, at the National Press Club in Washington, DC. This annual conference is acknowledged to be one of the nation's premier law and policy events.

 

As always, a truly outstanding lineup of senior officials and prominent experts from the FCC and Congress, and from 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 other topical law and policy issues involving free market competition, free speech, and the rule of law.

 

With a new Trump administration, a new Congress, and new leadership at the FCC, FTC, and other agencies, this promises to be one of the most impactful of FSF's annual conferences.

 

REGISTRATION IS COMPLIMENTARY, INCLUDING CONTINENTAL BREAKFAST AND LUNCH.

BUT YOU MUST REGISTER TO ATTEND.

 

FOR ADDITIONAL INFORMATION, CLICK HERE.

 

REGISTER HERE!

 

#FSFConf17

TMT with Mike O'Rielly - Ep 18: The Next Broadcast TV Standard

Episode 18 of "TMT with Mike O'Rielly," a videocast featuring former FCC Commissioner and Adjunct Senior Fellow at the Free State Foundation Michael O'Rielly, was released on February 21. In this episode, titled "The Creation & Status of the Next Broadcast Television Standard," Mr. O'Rielly has a conversation with guest Madeleine Noland, President, ATSC – The Broadcast Standards Association. 

Their conversation covers the ongoing transition from ATSC 1.0 to the next-gen broadcast TV standard of ATSC 3.0. Mr. O'Rielly and Ms. Noland touch on topics such as ATSC 3.0 capabilities, including picture enhancements, ATSC 3.0-capable devices (TVs and converter boxes), current coverage status, as well as channel sharing arrangements to enable simulcasts.