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Analyzing the Charter-Cox Merger

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

Earlier this year, Charter Communications, Incorporated and Cox Communications announced a $34.5 billion proposed merger. If completed, the combined company would become both the largest cable television provider and the largest broadband provider in the country.

At first glance, one might be concerned about a proposal to merge the second and third-largest cable providers into a single behemoth. But to describe the merger in these simplistic terms fails to appreciate both the challenges facing companies in mature industries and the revolutionary changes affecting the telecommunications industry. This proposed deal is not a power grab, but a rational response to a maturing, intensely competitive market. That’s the argument that I’ve made in my latest article as part of the Free State Foundation’s Perspectives series.

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Carr Reins in FCC Overreach on School Wi-Fi

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

Federal Communications Commission (FCC) Chairman Brendan Carr has been in the news a lot lately. Under his energetic leadership, the agency has pursued an ambitious agenda at a breakneck pace. And while he has taken flak (including from me) for some of his high-profile controversies—perhaps most notably threatening Jimmy Kimmel like a second-rate Jersey mob boss—he deserves significant credit for the less flashy efforts his team is taking behind the scenes to restore the agency’s proper role and rein in the prior administration’s excesses. One such effort was last month’s decision to terminate E-Rate funding for Wi-Fi hotspot lending and school bus Wi-Fi access. While the merits of those programs can be debated, they clearly exceeded the statute’s bounds, and the FCC was right to rein them in.

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Prison Call Order Delays Reform of Market Ripe for Disruption

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

Earlier this summer, the Federal Communications Commission (FCC) unexpectedly delayed implementation of its 2024 prison call order until 2027. The order, which was mandated by Congress and had bipartisan support in the agency and on Capitol Hill, sought to correct long-standing market distortions through a combination of cost-based pricing and competition-friendly rules. The delay was requested by incumbent providers and correctional facilities based on unexpected implementation challenges. But this postponement is unfortunate, coming right as new entrants such as Ameelio are poised to challenge those incumbents and perpetuating inefficiencies, high costs, and limited innovation in a sector ripe for disruption.

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Surprise! USF Decision Signals Admin Law Revolution, But Not the One We Expected

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

Late last month, the Supreme Court decided FCC v. Consumers Research. Although an undercard among the Court’s last-day decisions, the case was closely watched in administrative law circles as a potential vehicle for revitalizing the moribund Nondelegation Doctrine. But as predicted after oral argument, the Court found this was not the right case to do so. The big surprise was Justice Kavanaugh’s concurrence, which likely killed future efforts to reform nondelegation, but also signaled big news ahead for the law governing independent agencies.

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NTIA Streamlines BEAD Program, But Risks Further Delays

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

On June 6, the National Telecommunications & Information Administration (NTIA) issued its long-awaited overhaul of the $42.45 billion Broadband Equity, Access, and Deployment (BEAD) program. This new policy notice repeals many administrative burdens imposed by Biden-era NTIA oversight and aligns the program more closely with Congress’s original intent. This revised guidance promises to enhance broadband deployment by increasing flexibility and reducing costs to taxpayers. But it also risks further delays in a program already criticized for its sluggish rollout—and in the meantime, private enterprise is closing many of the coverage gaps BEAD sought to address.

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The House Should Act Quickly to Repeal the Illegal, Expensive E-Rate Expansion

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

Earlier this month, the Senate passed S.J.Res.7. The resolution, sponsored by Senator Ted Cruz, would repeal a Biden-era Federal Communications Commission (FCC) rule allowing E-Rate funds to subsidize Wi-Fi hotspot lending programs for off-campus use. This well-intentioned but misguided rule violates clear statutory limits on agency power and threatens an increasingly unstable Universal Service Fund (USF). The House should follow the Senate’s lead to revoke this initiative before the estimated June 4 deadline for congressional action.

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The Supreme Court Seems Unlikely to Revive Nondelegation Doctrine in FCC Case

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

Earlier this month, I previewed the arguments in Federal Communications Commission v Consumers’ Research. The case asks the Supreme Court whether the FCC’s Universal Service Fund (USF) violates the nondelegation doctrine, which prohibits Congress from delegating the legislative power to executive branch agencies. As my previous post explains, nondelegation is a largely toothless doctrine, mostly dormant since 1935. But in recent years, five of the nine Supreme Court justices have expressed an interest in revitalizing the doctrine, given the right case in which to do so.

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Will FCC v. Consumers’ Research Revive the Nondelegation Doctrine?

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

The idea behind the nondelegation doctrine is sound: Congress should not delegate legislative power to executive branch agencies. But its implementation leaves much to be desired. Nearly every nondelegation case acknowledges there’s a theoretical boundary but then finds that Congress hasn’t crossed it here. Only twice has the Supreme Court found a law violated the nondelegation doctrine, in 1935, both involving a statute that literally allowed President Roosevelt to cartelize the entire economy and make rules at whim. The modern rule allows Congress to give agencies significant authority as long as it includes an “intelligible principle” to guide exercise of that authority. Perhaps more than any other doctrine, this toothless standard has permitted the modern atrophy of our legislative branch, concentrated power in unelected bureaucrats, and enabled the imperial presidencies of the 21st century.

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After Net Neutrality: The Return of the States

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

I recently discussed the Sixth Circuit decision classifying broadband as a Title I information service and effectively eliminating the Federal Communications Commission’s (FCC) general power to regulate broadband. But like nature, regulators abhor a vacuum. While closing the door to federal regulators, the decision also creates opportunities for states to act. This post examines the present and potential future of state-level broadband regulation.

Historically, state regulators were key players in the telecommunications space. The Communications Act of 1934 divided the telecommunications world into two neat hemispheres: The FCC regulated interstate long-distance service, while state commissions regulated local and intrastate long distance. This division of authority made sense in a world where 98 percent of calls were local, and long-distance calls were a luxury. But the Telecommunications Act of 1996 dramatically rearranged the balance of power between the federal government and the states. Meanwhile, local telephone service largely disappeared as a separate market, before communication shifted from the telephone to broadband networks. As a result, most states shuttered their telecommunications regulators early in the 21st century.

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Sixth Circuit Strikes Net Neutrality in Victory for Tech, Administrative Law

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

My fellow tech policy enthusiasts, our long national nightmare is over. Last week, the Sixth Circuit brought an end to the decade-long fight over net neutrality by prohibiting the Federal Communications Commission (FCC) from applying Title II common carrier regulation to broadband providers. The decision is a victory for tech policy, freeing Internet access from the shadow of overbearing regulation. It’s also a win for administrative law, as it aligns with the Supreme Court’s guidance that courts, not agencies, should resolve disputes over statutory interpretations. The ruling reaffirms the principle that important policy decisions should be made by Congress, not by agencies under the guise of interpreting ambiguous statutes.

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