Years ago it looked like the Obama FCC would make broadband deployment, especially wireless service and spectrum reform, a top priority. They accomplished plenty–including two of the largest spectrum auctions to date–but, under tremendous political and special interest pressure, FCC leadership diverted significant agency resources into regulatory battles that had very little upside, like regulating TV apps and unprecedented regulation of Internet services.

Fortunately, the Trump FCC so far has made broadband deployment the agency’s top priority, which Chairman Pai signaled last year with the creation of the Broadband Deployment Advisory Committee. As part of those deployment efforts, Commissioner Carr has led an effort to streamline some legacy regulatory obstacles, like historic preservation and environmental reviews and the FCC will vote this week on an order to expedite wireless infrastructure construction.

According to the FCC, somewhere around 96% of the US population has LTE coverage from three or more wireless operators, like Verizon, AT&T, T-Mobile, and Sprint. The operators’ job isn’t done in rural areas, but much of the future investment into broadband networks will be to “densify” their existing coverage maps with “small cells” in order to provide wireless customers more bandwidth.

Since telecom companies build infrastructure, many current projects require review under the federal National Historic Preservation Act and the National Environmental Policy Act. However, unlike for the 100-foot cellphone towers in the past, the environmental checklists currently required for small cells are largely perfunctory since small cells typically use existing infrastructure, like utility poles. For Sprint’s tens of thousands of small cell site applications, for instance, the proposed order says “every single review resulted in a finding of no significant impact.”

The order under consideration will bring some structure to regulatory timelines and procedures. This should save carriers on unnecessary regulatory overhead and, more importantly, save time.

The order comes at a crucial time, which is why the prior FCC’s net neutrality distractions are so regrettable. Mobile broadband has huge demands and inadequate infrastructure and spectrum. According to studies, millions of Americans are going “mobile only,” and bypassing landline Internet service. Census Bureau surveys estimated that in 2015, about 20% of Internet-using households were mobile-only. (HT to Michael Horney.) That number is likely even higher today.

The construction of higher-capacity and 5G wireless, combined with repeal of the 2015 Internet regulations, will give consumers more options and better prices for Internet services, and will support new mobile applications like remote-control of driverless cars and AR “smart glasses” for blind people. Hopefully, after this order, the agency will continue with spectrum liberalization and other reforms that will expedite broadband projects.

By Adam Thierer and Jennifer Huddleston Skees

There was horrible news from Tempe, Arizona this week as a pedestrian was struck and killed by a driverless car owned by Uber. This is the first fatality of its type and is drawing widespread media attention as a result. According to both police statements and Uber itself, the investigation into the accident is ongoing and Uber is assisting in the investigation. While this certainly is a tragic event, we cannot let it cost us the life-saving potential of autonomous vehicles.

While any fatal traffic accident involving a driverless car is certainly sad, we can’t ignore the fact that each and every day in the United States letting human beings drive on public roads is proving far more dangerous. This single event has led some critics to wonder why we were allowing driverless cars to be tested on public roads at all before they have been proven to be 100% safe. Driverless cars can help reverse a public health disaster decades in the making, but only if policymakers allow real-world experimentation to continue.

Let’s be more concrete about this: Each day, Americans take 1.1 billion trips driving 11 billion miles in vehicles that weigh on average between 1.5 and 2 tons. Sadly, about 100 people die  and over 6,000 are injured each day in car accidents. 94% of these accidents have been shown to be attributable to human error and this deadly trend has been increasing as we become more distracted while driving. Moreover, according to the Center for Disease Control and Prevention, almost 6000 pedestrians were killed in traffic accidents in 2016, which means there was roughly one crash-related pedestrian death every 1.6 hours. In Arizona, the issue is even more pronounced with the state ranked 6th worst for pedestrians and the Phoenix area ranked the 16th worst metro for such accidents nationally. Continue reading →

In the waning days of the Obama administration, the US Department of Transportation (USDOT) proposed to mandate a government-designed “talking cars” technology–so-called DSRC devices–on all new cars. Fortunately, in part because of opposition from free-market advocates, the Trump administration paused the proposed mandate. The FCC had set aside spectrum in the 5.9 GHz band for DSRC technologies in 1999 but it’s been largely unused since then and these new developments raise the question: What to do with that 75 MHz of fairly “clean” spectrum? Hopefully the FCC will take the opportunity to liberalize the use of the DSRC band so it can be put to better uses.


Since the mid-1990s, the USDOT and auto device suppliers have needed the FCC’s assistance–via free spectrum–to jumpstart the USDOT’s vehicle-to-vehicle technology plans. The DSRC disappointment provides an illustration of what the FCC (and other agencies) should not do. DSRC was one of the FCC’s last major “beauty contests,” which is where the agency dispenses valuable spectrum for free on the condition it be used for certain, narrow uses–in this case, only USDOT-approved wireless systems for transportation. The grand plans for DSRC haven’t lived up to its expectations (USDOT officials in 2004 were predicting commercialization as early as 2005) and the device mandate in 2016–now paused–was a Hail Mary attempt to compel widespread adoption of the technology.

Last year, I submitted public interest comments to the USDOT opposing the proposed DSRC mandate as premature, anticompetitive, and unsafe (researchers found, for instance, that “the system will be able to reliably predict collisions only about 35% of the time”). I noted that, after nearly 20 years of work on DSRC, the USDOT and their hand-selected vendors had made little progress and were being leapfrogged by competing systems, like automatic emergency brakes, to say nothing of self-driving cars. The FCC has noticed the fallow DSRC spectrum and Commissioners O’Rielly and Rosenworcel proposed in 2015 to allow other, non-DSRC wireless technologies, like WiFi, into the band.

The FCC’s Role

These DSRC devices use spectrum in the 5.9 GHz band. The FCC set aside radio spectrum in the band for DSRC applications in 1999 based on a scant 19 comments and reply comments from outside parties. 

Despite the typical flowery language in the 1999 Order, FCC commissioners and Wireless Bureau staff must have had an inkling this was not a good idea. After decades of beauty contests, it was clear the spectrum set-asides were inefficient and anticonsumer, and in 1993 Congress gave the FCC authority to auction spectrum to the highest bidder. The FCC also moved towards “flexible-use” licenses in the 1990s, thus replacing top-down technology choices with market-driven ones. The DSRC set-aside broke from those practices, likely because DSRC in 1999 had powerful backers that the FCC simply couldn’t ignore: the USDOT, device vendors, automakers, and some members of Congress.

The FCC then codified the first DSRC standards in 2003. However, innovation at the speed of government, it turns out, isn’t very speedy at all. The fast-moving connected car industry simply moved ahead without waiting for DSRC technology to catch up. (Government-selected vendors making devices according to 15-year old government-prescribed technical standards on spectrum allocated by the government in 1999. Gee, what could go wrong?)

A Second Chance

So if the DSRC plans didn’t pan out, what should be done with that spectrum? Hopefully the FCC will liberalize the band and, possibly, combine it with the adjacent bands.

The gold standard for maximizing the use of spectrum is flexible-use, licensed spectrum, so the best option is probably liberalizing the DSRC spectrum, combining it with the adjacent higher band (5.925 GHz to 6.425 GHz) and auctioning it. In November 2017, the FCC asked about freeing this latter band for flexible, licensed use.  

The other (probably more popular) option is liberalizing the DSRC band and making it available for free, that is, unlicensed use. Giving away spectrum for free often leads to misallocation but this option is better than keeping it dedicated for DSRC technology. Unlicensed is for flexible uses and allows for many consumer technologies like WiFi, Bluetooth, and unlicensed LTE devices.

Further, because of global technical standards, unlicensed devices in the DSRC band make far more sense, it seems to me, in 5.9 GHz than in the CBRS band* (3.6 GHz), which many countries are using for licensed services like LTE. The FCC is currently trying to simplify the rules in the CBRS band to encourage investment in licensed services, and perhaps that’s a compromise the FCC will reach with those who want more unlicensed spectrum: make 3.6 GHz more accommodating for licensed, flexible uses but in return open the DSRC band to unlicensed devices.

Either way, the FCC has an opportunity to liberalize the use of the DSRC band. Grand plans for DSRC didn’t work out and hopefully the FCC can repurpose that spectrum for flexible uses, either licensed or unlicensed.



*Technically, the GAA devices in the CBRS band are non-exclusive licenses, but the rules intentionally resemble an unlicensed framework.

While the Net Neutrality debate has been in the foreground, Congress has been quietly moving forward legislation that risks fundamentally modifying the liability protection for Internet intermediaries like Facebook, Google, and PayPal, and forever changing the Internet. The proposed legislation has good intentions of stopping sex trafficking, but in an effort to stop a few bad actors the current overly broad version of the bill risks not only stopping the next Internet innovation, but also failing to achieve even this laudable goal.

Continue reading →

“You don’t gank the noobs” my friend’s brother explained to me, growing angrier as he watched a high-level player repeatedly stalk and then cut down my feeble, low-level night elf cleric in the massively multiplayer online roleplaying game World of Warcraft. He logged on to the server to his “main,” a high-level gnome mage and went in search of my killer, carrying out two-dimensional justice. What he meant by his exclamation was that players have developed a social norm banning the “ganking” or killing of low-level “noobs” just starting out in the game. He reinforced that norm by punishing the overzealous player with premature annihilation.

Ganking noobs is an example of undesirable social behavior in a virtual space on par with cutting people off in traffic or budging people in line. Punishments for these behaviors take a variety of forms, from honking, to verbal confrontation, to virtual manslaughter. Virtual reality social spaces, defined as fully artificial digital environments, are the newest medium for social interaction. Increased agency and a sense of physical presence within a VR social world like VRChat allows users to more intensely experience both positive and negative situations, thus reopening the discussion for how best to govern these spaces.

Continue reading →

Internet regulation advocates lost their fight at the FCC, which voted in December 2017 to rescind the 2015 Open Internet Order. Regulation advocates have now taken their “net neutrality” regulations to the states.

Some state officials–via procurement contracts, executive order, or legislation–are attempting to monitor and regulate traffic management techniques and Internet service provider business models in the name of net neutrality. No one, apparently, told these officials that government-mandated net neutrality principles are dead in the US.

As the litigation over the 2015 rules showed, our national laissez faire policy towards the Internet and our First Amendment guts any attempt to enforce net neutrality. Recall that the 1996 amendments to the Communications Act announce a clear national policy about the Internet: Continue reading →

Autonomous cars have been discussed rather thoroughly recently and at this point it seems a question of when and how rather than if they will become standard. But as this issue starts to settle, new questions about the application of autonomous technology to other types of transportation are becoming ripe for policy debates. While a great deal of attention seems to be focused on the potential revolutionize the trucking and shipping industries, not as much attention has been paid to how automation may help improve both intercity and intracity bus travel or other public and private transit like trains. The recent requests for comment from the Federal Transit Authority show that policymakers are starting to consider these other modes of transit in preparing for their next recommendations for autonomous vehicles. Here are 5 issues that will need to be considered for an autonomous transit system.

Continue reading →

Last week the FCC commissioners voted to restructure the agency and create an Office of Economics and Analytics. Hopefully the new Office will give some rigor to the “public interest standard” that guides most FCC decisions. It’s important the FCC formally inject economics in to public interest determinations, perhaps much like the Australian telecom regulator’s “total welfare standard,” which is basically a social welfare calculation plus consideration of “broader social impacts.”

In contrast, the existing “standard” has several components and subcomponents (some of them contradictory) depending on the circumstances; that is, it’s no standard at all. As the first general counsel of the Federal Radio Commission, Louis Caldwell, said of the public interest standard, it means

as little as any phrase that the drafters of the Act could have used and still comply with the constitutional requirement that there be some standard to guide the administrative wisdom of the licensing authority.

Unfortunately, this means public interest determinations are largely shielded from serious court scrutiny. As Judge Posner said of the standard in Schurz Communications v. FCC,

So nebulous a mandate invests the Commission with an enormous discretion and correspondingly limits the practical scope of responsible judicial review.

Posner colorfully characterized FCC public interest analysis in that case:

The Commission’s majority opinion … is long, but much of it consists of boilerplate, the recitation of the multitudinous parties’ multifarious contentions, and self-congratulatory rhetoric about how careful and thoughtful and measured and balanced the majority has been in evaluating those contentions and carrying out its responsibilities. Stripped of verbiage, the opinion, like a Persian cat with its fur shaved, is alarmingly pale and thin.

Every party who does significant work before the FCC has agreed with Judge Posner’s sentiments at one time or another.

Which brings us to the Office of Economics and Analytics. Cost-benefit analysis has its limits, but economic rigor is increasingly important as the FCC turns its attention away from media regulation and towards spectrum assignment and broadband subsidies.

The worst excesses of FCC regulation are in the past where, for instance, one broadcaster’s staff in 1989 “was required to review 14,000 pages of records to compile information for one [FCC] interrogatory alone out of 299.” Or when, say, FCC staff had to sift through and consider 60,000 TV and radio “fairness” complaints in 1970. These regulatory excesses were corrected by economists (namely, Ronald Coase’s recommendation that spectrum licenses be auctioned, rather than given away for free by the FCC after a broadcast “beauty contest” hearing), but history shows that FCC proceedings spiral out of control without the agency intending it.

Since Congress gave such a nebulous standard, the FCC is always at risk of regressing. Look no further than the FCC’s meaningless “Internet conduct standard” from its 2015 Open Internet Order. This “net neutrality” regulation is a throwback to the bad old days, an unpredictable conduct standard that–like the Fairness Doctrine–would constantly draw the FCC into social policy activism and distract companies with interminable FCC investigations and unknowable compliance requirements.

In the OIO’s mercifully short life, we saw glimpses of the disputes that would’ve distracted the agency and regulated companies. For instance, prominent net neutrality supporters had wildly different views about whether a common practice, “zero rating” of IP content, by T-Mobile violated the Internet conduct standard. Chairman Tom Wheeler initially called it “highly innovative and highly competitive” while Harvard professor Susan Crawford said it was “dangerous” and “malignant” and should be outlawed “immediately.” The nearly year-long FCC investigations into zero rating and the equivocal report sent a clear, chilling message to ISPs and app companies: 20 years of permissionless innovation for the Internet was long enough. Submit your new technologies and business plans to us or face the consequences.

Fortunately, by rescinding the 2015 Order and creating the new economics Office, Chairman Pai and his Republican colleagues are improving the outlook for the development of the Internet. Hopefully the Office will make social welfare calculations a critical part of the public interest standard.

We hear a lot these days about “technological moonshots.” It’s an interesting phrase because the meaning of both words in it are often left undefined. I won’t belabor the point about how people define–or, rather, fail to define–“technology” when they use it. I’ve already spent a lot of time writing about that problem. See, for example, this constantly updated essay here about “Defining ‘Technology.'” It’s a compendium I began curating years ago that collects what dozens of others have had to say on the matter. I’m always struck by how many different definitions are out there that I keep unearthing.

The term “moonshots” has a similar problem. The first meaning is the literal one that hearkens back to President Kennedy’s famous 1962 “we choose to go to the moon” speech. That use of the terms implies large government programs and agencies, centralized control, and top-down planning with a very specific political objective in mind. Increasingly, however, the term “moonshot” is used more generally, as I note in this new Mercatus essay about “Making the World Safe for More Moonshots.”  My Mercatus Center colleague Donald Boudreaux has referred to moonshots as, “radical but feasible solutions to important problems,” and  Mike Cushing of Enterprise Innovation defines a moonshot as an “innovation that achieves the previously unthinkable.” I like that more generic use of the term and think it could be used appropriately when discussing the big innovations many of us hope to see in fields as diverse as quantum computing, genetic editing, AI and autonomous systems, supersonic transport, and much more. I still have some reservations about the term, but I think it’s definitely a better term than “disruptive innovation,” which is also used differently by various scholars and pundits.

Continue reading →

There was a bold, bizarre proposal published by Axios yesterday that includes leaked documents by a “senior National Security Council official” for accelerating 5G deployment in the US. “5G” refers to the latest generation of wireless technologies, whose evolving specifications are being standardized by global telecommunications companies as we speak. The proposal highlights some reasonable concerns–the need for secure networks, the deleterious slowness in getting wireless infrastructure permits from thousands of municipalities and counties–but recommends an unreasonable solution–a government-operated, nationwide wireless network.

The proposal to nationalize some 5G equipment and network components needs to be nipped in the bud. It relies on the dated notion that centralized government management outperforms “wasteful competition.” It’s infeasible and would severely damage the US telecom and Internet sector, one of the brightest spots in the US economy. The plan will likely go nowhere but the fact it’s being circulated by administration officials is alarming.

First, a little context. In 1927, the US nationalized all radiofrequency spectrum, and for decades the government rations out dribbles of spectrum for commercial use (though much has improved since liberalization in the 1990s). To this day all spectrum is nationalized and wireless companies operate at sufferance. What this new document proposes is to make a poor situation worse.

In particular, the presentation proposes to re-nationalize 500 MHz of spectrum (the 3.7 GHz to 4.2 GHz band, which contains mostly satellite and government incumbents) and build wireless equipment and infrastructure across the country to transmit on this band. The federal government would act as a wholesaler to the commercial networks (AT&T, Verizon, T-Mobile, Sprint, etc.), who would sell retail wireless plans to consumers and businesses.

The justification for nationalizing a portion of 5G networks has a national security component and an economic component: prevent Chinese spying and beat China in the “5G race.”

The announced goals are simultaneously broad and narrow, and at severe tension.

The plan is broad in that it contemplates nationalizing part of the 5G equipment and network. However, it’s narrow in that it would nationalize only a portion of the 5G network (3.7 GHz to 4.2 GHz) and not other portions (like 600 MHz and 28 GHz). This undermines the national security purpose (assuming it’s even feasible to protect the nationalized portion) since 5G networks interconnect. It’d be like having government checkpoints on Interstate 95 but leaving all other interstates checkpoint-free.

Further, the document author misunderstands the evolutionary nature of 5G networks. 5G for awhile will be an overlay on the existing 4G LTE network, not a brand-new parallel network, as the NSC document assumes. 5G equipment will be installed on 4G LTE infrastructure in neighborhoods where capacity is strained. As Sherif Hanna, director of the 5G team at Qualcomm, noted on Twitter, in fact, “the first version of the 5G [standard]…by definition requires an existing 4G radio and core network.”

The most implausible idea in the document is a nationwide 5G network could be deployed in the next few years. Environmental and historic preservation review in a single city can take longer than that. (AT&T has battled NIMBYs and local government in San Francisco for a decade, for instance, to install a few hundred utility boxes on the public right-of-way.) The federal government deploying and maintaining hundreds of thousands 5G installations in two years from scratch is a pipe dream. And how to pay for it? The “Financing” section in the document says nothing about how the federal government will find tens of billions of dollars for nationwide deployment of a government 5G network.

The plan to nationalize a portion of 5G wireless networks and deploy nationwide is unwise and unrealistic. It would permanently damage the US broadband industry, it would antagonize city and state officials, it would raise serious privacy and First Amendment concerns, and it would require billions of new tax dollars to deploy. The released plan would also fail to ensure the network security it purports to protect. US telecom companies are lining up to pay the government for spectrum and to invest private dollars to build world-class 5G networks. If the federal government wants to accelerate 5G deployment, it should sell more spectrum and redirect existing government funding towards roadside infrastructure. Network security is a difficult problem but nationalizing networks is overkill.

Already, four out of five [update: all five] FCC commissioners have come out strongly against this plan. Someone reading the NSC proposal would get the impression that the US is sitting still while China is racing ahead on 5G. The US has unique challenges but wireless broadband deployment is probably the FCC’s highest priority. The Commission is aware of the permitting problems and formed the Broadband Deployment Advisory Committee in part for that very purpose (I’m a member). The agency, in cooperation with the Department of Commerce, is also busy looking for more spectrum to release for 5G.

Recode is reporting that White House officials are already distancing the White House from the proposal. Hopefully they will publicly reject the plan soon.