Constitution Day 2025

 by Randolph May

 

Tomorrow, September 17, is Constitution Day, the day on which we celebrate the 238^th anniversary of the signing of the Constitution of 1787 by thirty-nine Framers in Philadelphia. The signing marked the end of a long hot summer of debate – debate sometimes seemingly as heated as the temperature in the modest Assembly Room of the Pennsylvania State House, the name of which was later changed to Independence Hall.

After the Constitutional Delegates adjourned for a final time, Elizabeth Willing Powell questioned Ben Franklin: "Well, Doctor, what have we got, a republic or a monarchy?" Franklin's response: "A republic, if you can keep it."

Perhaps this is an apocryphal tale. But nevertheless, one that should be a constant reminder to all Americans of good will that the democratic Republic which our Constitution established is not preordained to last forever. It always has been and forever will be dependent upon "We the People" – the Constitution's first three words – to nourish and sustain the American Experiment in democracy.

Now, in the wake of Charlie Kirk's assassination, the fabric of our Republic seems especially frayed. Of course, the societal instability – even breakability – we feel because of increasing acts of violence rooted in political differences did not arise overnight. Far from it. And it has many causes.

But it's blinking reality not to acknowledge that over-the-top overheated political rhetoric – while never ever a justification for acts of violence like the one that killed Charlie Kirk – is likely one of those causes.

I do not intend to point fingers from or at the left or right. That's not what's needed in America now.

Here, on this Constitution Day, one should turn back to the Constitution – and the First Amendment's guarantee of free speech. The guarantee that citizens must enjoy the freedom to speak freely is essential to the continuation of the American Experiment.

But with that freedom, secured by the Constitution if we can keep it, also comes the responsibility of us all to encourage civil discourse and respectful debate about controversial issues, while at the same time adhering to fundamental principles in which we believe.

Voltaire declared: “I disapprove of what you say, but I will defend to the death your right to say it.”

At the Free State Foundation, we have tried to model that behavior since our founding in 2006. And I pledge we will continue to do so.

With friendship and optimism on Constitution Day,  

 

Congressman Latta's Bill Would Cut Wireless Permitting Red Tape

On September 4, Representative Bob Latta (R-OH), co-chair of the Rural Broadband Caucus, reintroduced the Winning the International Race for Economic Leadership and Expanding Service to Support (WIRELESS) Leadership Act (the Act). First introduced in February 2021, the Act would "modernize broadband permitting to reduce barriers to deployment."

Among other things, the Act would:

• Establish shot clocks for state and local agencies to act on an application (60 days for the placement of a "small" personal wireless facility using an existing structure, 90 days for other actions relating to a "small" facility or to a larger facility using an existing structure, and 150 days for other actions relating to a larger facility), after which, and upon written notice to the agency, the application would be deemed granted.

• Prohibit "discriminat[ion] among personal wireless service facilities or providers of communications service."

• Ban state and local agencies from exercising their local zoning authority in a manner that would "prohibit or have the effect of prohibiting the provision, improvement, or enhancement of personal wireless services.

• Require that fees be "competitively neutral, technology neutral, and nondiscriminatory"; "established in advance and publicly disclosed"; "calculated based on actual and direct costs" that are "objectively reasonable."

Parties that have been "adversely affected by any final action or failure to act" could seek either expedited judicial relief or administrative relief from the FCC, which would be required to act upon such a request within 120 days.

As Congressman Latta was quoted in the Press Release, "Over the years, billions of dollars have been allocated to expand rural broadband, but without meaningful broadband permitting reform, … all of the federal money will be tied up in burdensome permitting reviews…. " The Act would "streamline state and local permitting, cut through burdensome reviews, and accelerate broadband deployment so more communities can get connected."

The President's Ultimate Authority to Manage Government Spectrum Shouldn't Be Restricted

 

Senator Deb Fischer is proposing an amendment to the National Defense Authorization Act (NDAA) currently being debated on the Senate floor that would prohibit modification of the spectrum between 3.1 - 3.4 GHz and between 7.4 - 8.4 GHz unless the Secretary of Defense and the Chairman of the Joint Chiefs of Staff jointly agree. In spectrum provisions of the One Big Beautiful Bill reconciliation statute, these bands generally were exempted from being designated for auction to private sector entities. But the Defense Department was not granted authority to supercede normal executive branch decision-making. Nor could it be. 

Here's a tweet from August 14 with my response to Senator Fischer's proposal: 

 

I agree w/ @SenatorFischer it's imp't for DoD to have sufficient #spectrum to carry out its mission. But this does't mean DoD's spectrum needs shouldn't be questioned or balanced against other nat'l interests. And DoD can't be left to decide for itself its own #spectrum needs.

Free State Foundation (@FSFthinktank) x.com

Now that the NDAA bill is being debated, the White House has issued a formal objection to Senator Fisher's proposed amendment, stating: "The certification would hinder the President’s executive authority."

                                               

                                                

I agree. This is not a matter of supporting the military and its mission, which I do. But, ultimately, under our Constitution, the president is Chief Executive as well as Commander in Chief, responsible for overseeing the entire executive branch, and, of course the military. Congress cannot properly restrict a president's executive authority by handing over final decision-making authority to his subordinates.

Presumably President Trump - and any future president - will want to ensure, just as much as Senator Fischer, that our nation's military has the spectrum it needs to protect defend us.

Senator Fischer should withdraw her amendment.   

Wireless Use Continues Rapid Gains

According to  new CTIA report, for the third straight year, the demand for wireless data grew by roughly 35%. Here are some other eye-popping data points regarding the use of mobile data as documented in the new CTIA survey:

• Americans used 132 trillion megabytes of mobile data in 2024, up from 100 trillion in 2023. 

• Carriers invested an estimated $29 billion in their networks in 2024, down from $30 billion last year and a record $39 billion in 2022.

                                                                 

• The U.S. wireless industry activated 15,000 cell towers in 2024, and the number of small cells in use is up 110% since 2018.

• There are a total of 579 million U.S. wireless connections, or 1.7 connections for every person.

• Approximately 259 million connections were 5G, an increase of 43 million over the previous year. 

•  By the end of 2024, there were 12 million fixed-wireless subscribers which is projected to increase 1.7 times by 2028.

These figures leave little doubt regarding the importance of making available more licensed spectrum in a timely manner to accommodate  the continued significant growth in usage. And along with making available substantial licensed spectrum, the need for ensuring adequate spectrum is available for WiFi cannot be ignored.

Colorado's Plan Provides Useful BEAD Insights

 In today's Policyband, Ted Hearn provides some figures regarding Colorado's revised BEAD proposal that are useful in suggesting key policy insights.

This from Policyband: 

"Amazon’s Project Kuiper and SpaceX’s Starlink were tentatively awarded about half of the roughly 90,000 homes and buildings with either no service or speeds below 100/20 megabits per second. Fiber providers captured 48% of the locations, while fixed wireless accounted for 2%. Colorado awarded $25.3 million to Project Kuiper to serve 42,252 locations – about 47% of all locations – at about $600 per location, while Starlink received $9.1 million to serve 5,400 locations – about 6% of all locations – at about $1,700 per location."

 

And then here's the kicker:

 

"Because fiber deployment come with high per-locations costs, Colorado awarded 91% of its BEAD funds to fiber Internet Service Providers (ISPs)."

                                                     

The cost difference between providing broadband service via satellite and fiber is significant. Under the Biden administration BEAD plan, Colorado was to receive about $826 million in federal funds, whereas under the reworked Trump administration guidelines, Colorado said it would connect all eligible locations for a cost of $409 million. The $417 million in savings to the governments is not peanuts.

 

So, the Trump administration's abandonment of Biden's "fiber at all costs" policy makes sense, including for America's taxpayers. And it's consistent with Congress's intent in the Infrastructure Act that the BEAD program be technology-neutral.

 

Of course, it matters whether the satellite providers can actually deliver broadband service at the specified 100/20 megabits per second requirement and whether Amazon's Project Kuiper can actually get its satellites up and running in time to meet its commitments in this regard. Apparently, Colorado thinks both contingencies can be met or it would have proposed a different plan.

 

And I have a lot of confidence that new NTIA Administrator Arielle Roth, who has been on top of observing implementation of the BEAD program for years as the key telecom aide to Senator Ted Cruz, will ensure that NTIA administers the program efficiently and effectively. 

 

BTW, if you are not subscribing to Policyband, you should. Always useful information intelligently presented – and often with a bit of wit.

President Trump Revokes President Biden's Mislabeled "Promoting Competition" EO

On August 13 President Trump issued an Executive Order revoking President Biden's Executive Order 14036 issued in 2021. EO 14036 was styled "Promoting Competition in the American Economy." 

Naming EO 14036 "Promoting Competition in the American Economy" was real misnomer in the same way that President Biden's "Inflation Reduction Act of 2022" was misleadingly labeled. That law did a whole bunch of things, but reducing inflation was not one of them. Instead, it increased inflation. Likewise, the "Promoting Competition" executive order encouraged adoption of a lot of unsound policies by various agencies. The overall effect was not to increase competition and make markets freer but to increase government intervention in key segments of the U. S. economy.

 

With respect to communications law and policy, the Biden EO "encouraged" the FCC to adopt "net neutrality" rules to convert broadband Internet service providers into public utilities. Additionally, it "encouraged" the agency to prohibit early termination fees; to require broadband providers to regularly report broadband price and subscription rates to the agency; and to prevent landlords and cable and Internet service providers from inhibiting tenants' choices among providers.

 

                                                  

Not surprisingly, the FCC under Jessica Rosenworcel's leadership proceeded to implement, or try to implement, all of the actions it was "encouraged" to implement. Most of these sugar-coated government interventions did not contribute to enhancing competition or benefitting consumers.

 

So, I'm pleased President Trump has revoked the Biden's Executive Order 14036 which provided a lot of the impetus for many of his administration's regulatory crusades.

 

That said, I have no hesitancy in admitting that I wish President Trump would resist his not-so-occasional urges to "encourage" government intervention in the free marketplace when it strikes his fancy. Could he issue an executive order that would restrain himself?

Two Victories for Constructing Cell Tower Infrastructure

 As reported in Law360 [subscription required] on August 13, both the Fourth and the Eleventh Circuits issued decisions on the same day affirming lower court actions that had rejected local governments denial of permission to cell tower companies to build out cell tower infrastructure. There continue to be attempts by some municipalities and counties to improperly forestall cell tower projects, hindering the deployment of a robust 5G networks. So these two new appeals court decisions are welcome, especially coming on the day.

In one case, the Fourth Circuit said that Culpeper County, Virginia, officials let the 150-day clock run out without approving or denying the application, and that, under federal law, that was sufficient for it to be "deemed granted." In other words, the locality can simply sit on the application and "run out the clock."

                                               

 

In the other case, the Eleventh Circuit determined that Brevard County, Florida, couldn't deny a conditional-use permit to build a cell tower for "solely aesthetic concerns." The appeals court agreed with a lower court's finding that those concerns about the tower intended to enhance service for T-Mobile weren't supported by substantial evidence, adding that "we have consistently held that generalized aesthetic objections, standing alone, cannot justify denial of an otherwise qualified application." Therefore, according to the court, " the district court correctly concluded that the county's factual support for its decision fell short of the substantial evidence requirement."

 

As the Law360 report concludes: "The Telecommunications Act of 1996 is the law that most cell tower disputes are filed under, and it forbids localities from regulating cell towers in a way that prohibits telecom services. Local governments also can't deny permits based on environmental concerns, which courts have generally interpreted to include health concerns, and applications are deemed granted if municipalities leave them untouched for long enough."

James Byrnes, Meet Brendan Carr!

 You may not know the name James Byrnes! But, for me, he comes to mind. Mr. Byrnes once declared: The nearest approach to immortality on Earth is a government bureau." 

James Byrnes served as a governor of South Carolina, United States Senator, a Supreme Court Justice, and U.S. Secretary of State, aside from other government positions. Yes, you read that right!

 

So, by virtue of his experience, Mr. Byrnes knew a thing or two about the difficulty of shrinking the size of government.

 

Admittedly FCC Chairman Brendan Carr hasn't served in as many high-level government positions as James Byrnes. No one else has. But Carr has served in key FCC positions long enough – as General Counsel, Commissioner, and now Chairman – to understand that there are plenty of legacy regulations remaining in the FCC's rule book that are no longer necessary. Not only are they no longer necessary, but many of them, considering the dramatically changed telecommunications and media environment since they were adopted, impose costs and burdens that affirmatively harm consumers and competition.

 

I have criticized a few actions taken by Chairman Carr, for example, the use of the agency's transaction review process to impose extraneous conditions not unique to the transaction in approving the Skydance – Paramount CBS transaction, and the imposition of what appears to be an unwarranted forfeiture on Telnyx without fair notice of what standard it was expected to meet.

                                                                 

                                                                          

But, on the whole, I applaud the way that Chairman Carr is forging ahead in the DELETE, DELETE, DELETEproceeding and others to remove bunches of regulations that should no longer exist and, frankly, should have been eliminated years ago. For example, yesterday the Commission proposed to eliminate nearly 100 outdated, no longer necessary, broadcast rules using the Direct Final Rule process. The public will have 10 days after Federal Register publication to offer comments regarding any of the proposed rules. Absent the submission of a "significant adversecomment," the proposed elimination of the rule will occur. If the Commission determines that a "significant adverse comment" has been submitted, then that particular rule will go through the normal notice and comment process.

 

In a 1995 Recommendation, The Administrative Conference of the United States (ACUS), of which I have served as a Public Member and now Senior Fellow, suggested that agencies use the Direct Final Rule process to more quickly eliminate unnecessary regulations "in all cases where the ‘unnecessary’ prong of the good cause exemption is available…." On many occasions since then, to little or no avail, I have urged the FCC to consider employing the process.

 

So, I heartily commend Brendan Carr for taking the initiative to do so now. There will still be an opportunity for public comment when the Direct Final Rule process is employed, and, if experience proves there is a need, there can be adjustments to ensure that non-frivolous substantive objections are properly considered.

 

Shortly before becoming FCC Chairman, Ajit Pai, speaking at a Free State Foundation event, declared: “We need to fire up the weed whacker and remove those rules that are holding back investment, innovation and job creation.”Considering all the obstacles, including the time and energy expended to reverse the then-existing mandate regulating Internet service providers as public utilities, Chairman Pai made a good start. But now Chairman Carr has truly fired up the metaphorical "weed whacker" in a way that looks to make meaningful progress in the cause of eliminating costly, burdensome, unnecessary regulations.

 

He may not have eliminated a government bureau. But I suspect that James Byrnes would give Brendan Carr credit for what he's doing on the deregulation front.

Roth's NTIA Takes Early Aim at Rate Regulation

On July 30, 2025, Arielle Roth officially assumed the role of Assistant Secretary of Commerce for Communications and Information, a position that includes serving as Administrator of the National Telecommunications and Information Administration (NTIA). Days later, NTIA released updated Frequently Asked Questions (FAQs) regarding the $42.45 billion Broadband Equity, Access, and Deployment (BEAD) Program. Notably, the revised FAQs underscore a significant policy shift from the Biden Administration's approach, one that aligns with Congress's explicit prohibition against broadband rate regulation.

This latest version of the FAQs builds on the BEAD Restructuring Policy Notice (BEAD RPN) that was released in early June. The BEAD RPN made numerous substantive changes to the Notice of Funding Opportunity (NOFO) that the Biden Administration NTIA issued in May 2022, including several addressing the low-cost service option (LCSO) requirement for BEAD Program grant recipients.

Under the NOFO, NTIA imposed prescriptive price and service terms for the LCSO. These included effective mandates on the maximum monthly rate, restrictions that, in substance, amounted to prohibited rate regulation.

The RPN eliminated those requirements: "BEAD subgrantees must still comply with the statutory provision to offer at least one LCSO, but NTIA hereby prohibits [states] from explicitly or implicitly setting the LCSO rate a subgrantee must offer." The updated FAQ expounds upon this point:

The IIJA prohibits NTIA or the Assistant Secretary from engaging in rate regulation. Because the Assistant Secretary must approve the LCSO in the Final Proposal, the rate contained may not be the result of rate regulation. The RPN addressed this fundamental flaw in the BEAD NOFO. The RPN eliminated BEAD NOFO requirements dictating price and other terms for the required low-cost service option.

In addition, the FAQ notes that, "[p]er the RPN, states may not apply state laws to reimpose LCSO requirements removed by the RPN."

This, of course, is a sharp departure from the Biden Administration's deeply flawed approach. As I described in a February 2024 Perspectives from FSF Scholars, "Virginia Flags NTIA's Impermissible Pressure to Regulate Broadband Rates," NTIA sought to compel Virginia to "specify an exact price or formula" for the LCSO.

That demand directly conflicted with Section 60102(h)(5)(D) of the Infrastructure Investment and Jobs Act, which states that "[n]othing in this title may be construed to authorize the Assistant Secretary or the National Telecommunications and Information Administration to regulate the rates charged for broadband service."

By making explicit that neither NTIA nor a state may dictate broadband rates, the RPN and the updated FAQs realign BEAD Program implementation with the letter of the law. In doing so, they empower grant recipients to develop sustainable offerings. They also foster competition, innovation, and continued private investment (to the tune of $2.2 trillion and counting).

Released in the first few days of Roth's tenure as NTIA Administrator, these updated FAQs are a welcome indicator that, going forward, the BEAD Program will hew far more closely to congressional intent.