Reviling Universal Service Subsidies and then Touting the Results

           Today, the Supreme Court will consider a challenge to the universal service subsidy program established soon after the introduction of telephone service by the AT&T Bell System and later officially adopted by the FCC as mandated by a 1996 law. See https://www.supremecourt.gov/orders/courtorders/112224zr1_7l48.pdf; https://assets.noviams.com/novi-file-uploads/shlbc/PDFs_and_Documents/2025_Filings/24-354_SHLB_et_al__Opening_Brief.pdf. Universal service funding supports access to telephone and broadband service by subscribers in rural locales that commercial ventures will not serve absent a subsidy.  Additional programs reduce the cost of access for low-income subscribers and specific beneficiaries such as schools, clinics, hospitals, and libraries.

          The programs help mitigate what economists consider market failure: the inability of unregulated and unsubsidized markets to achieve socially desirable outcomes. As we recover from the Covid-pandemic, who would ignore the essentialness of “remote access” to government services, social networks, entertainment, etc.?

          After failing in multiple Circuit Courts of Appeal, a well-funded advocacy group convinced a majority of 5^th Circuit judges that FCC exceeded its statutory authority in implementing the subsidy program and assigning administrative tasks to a private venture. See https://www.supremecourt.gov/DocketPDF/24/24-354/336896/20250108184903404_24-354ts_FCC.pdf.

          I participated in the Circuit Court cases as the co-author of a Friend of the Court brief explaining how universal service funding works.  For decades nobody considered the program controversial, or worse yet, yoke, taxing, and confiscatory.  Over time the program has grown into an $8.1 billion subsidy that telecommunications carriers pass through to subscribers by way of a billing line item.  The substantial subsidy increase has resulted from an uncontroversial decision by the FCC to subsidize broadband Internet access in addition to telephone service.

          The Supreme Court today surely will not understand that the Congress used clear language codifying the subsidy and directing the FCC to require regulated carriers to contribute to the fund.  The Court will not understand that the carriers can lawfully elect to pass through the costs to subscribers and also determine what percentage of their services are subject to the subsidy requirement. 

          This flexibility helps the opponents of universal service funding to characterize the program as an unconstitutional tax on consumers, rather than a long-standing program that everyone used to consider essential.

          I have devoted a lot of bandwidth explaining how the program works, its woeful inefficiencies and inequities, and its lawfulness. See, e.g.,  Rob Frieden, Remedies for Universal Service Funding Compassion Fatigue, 39 SANTA CLARA HIGH TECH LAW JOURNAL 395 (2023); https://digitalcommons.law.scu.edu/chtlj/vol39/iss4/2/; Rob Frieden, How to Remedy Post Covid Pandemic Setbacks In Bridging The Digital Divide, 25 NORTH CAROLINA JOURNAL OF LAW AND TECHNOLOGY, Issue 1, 57 (2023); https://ncjolt.org/wp-content/uploads/sites/4/2023/10/Frieden_Final.pdf; Rob Frieden, The Mixed Blessing of a Deregulatory Endpoint for the Public Switched Telephone Network, 37 TELECOMMUNICATIONS POLICY, No. 4-5, 400-412 (May, 2013); https://doi.org/10.1016/j.telpol.2012.05.003; Rob Frieden, Killing With Kindness: Fatal Flaws in the $6.5 Billion Universal Service Funding Mission and What Should be Done to Narrow the Digital Divide, 24 CARDOZO ARTS AND ENTERTAINMENT LAW JOURNAL, No. 2, 447-490 (2006); https://cardozoaelj.com/wp-content/uploads/Journal%20Issues/Volume%2024/Issue%202/Frieden.pdf; Rob Frieden, Lessons From Broadband Development in Canada, Japan, Korea and the United States, 29 TELECOMMUNICATIONS POLICY, No. 8, 595-613 (Sept. 2005); doi:10.1016/j.telpol.2005.06.002.

          It is quite unnerving to see this issue reframed as an assault on consumers and characterized as a tax.  It’s quite humbling to see the efficacy of campaigns to discredit the FCC’s decision to delegate funding collection and disbursement to a private venture, despite the inconvenient truth that if the FCC had to perform these tasks, it would have to employ hundreds more staff.

          Worse yet, it is painful to see elected officials revile the subsidy mechanism, but hold press conferences bragging about the millions of dollars made available to constituents.

 

 

 

 

 

 

What If Moving Fast Results in Unrepairable, Broken Things Like Inner Space and Earth’s Upper Atmosphere?

             Until 2014, Facebook’s official mantra was “move fast and break things” https://en.wikipedia.org/wiki/Move_fast_and_break_things. Mark Zuckerberg coined the phrase https://www.snopes.com/fact-check/move-fast-break-things-facebook-motto/; to emphasize the need for speedy, first mover advantages, even if such initiatives result in harmful outcomes.  Apparently, his undoubtably biased cost/benefit analysis generated a net positive outcome, presumably for Facebook and everyone else.

            Maybe not. See, e.g., https://hbr.org/2019/01/the-era-of-move-fast-and-break-things-is-over; https://leaddev.com/velocity/why-you-shouldnt-move-fast-and-break-things.

            The lack of guard rails, of any sort, invariably results in knowable and unknowable calamities, that individually and collectively change the value proposition, particularly for non-investors.

            Just now, scientists are determining, without doubt, that low earth orbiting satellite constellations, like Starlink, have a real, quantifiable, and harmful impact on space and earth atmosphere.  See: https://www.space.com/spacex-starlink-reentry-pollution-damage-earth-atmosphere;

https://www.economist.com/science-and-technology/2025/03/05/satellites-are-polluting-the-stratosphere;

https://www.businesstoday.in/visualstories/news/starlink-killing-atmosphere-the-environmental-threat-to-earth-elon-musk-isnt-talking-about-214537-06-03-2025;

https://www.science.org/content/article/burned-satellites-are-polluting-atmosphere;

https://pirg.org/edfund/wp-content/uploads/2024/10/PIRG-Satellite-Letter-to-FCC-from-100-researchers.pdf;

https://abcnews.go.com/US/musks-starlink-polluting-space-researchers-call-fcc-pause/story?id=115276437

https://www.sciencenews.org/article/satellite-space-junk-havoc-stratosphere.

            Low earth orbiting satellites, like those operated by Starlink, are smaller and lighter than prior generations of telecommunications space craft.  However, operators must launch thousands of them to achieve global coverage.  Their close proximity to earth and constant motion, relative to earth, require frequent launches to replace failing and end of life units.

            The toxification of space and earth atmosphere occurs when launching satellites and when they fall out of orbit on a downward trajectory toward earth, typically after only five years of service.  Satellite launches release massive amounts of fumes, such as sulfuric acid, into earth’s atmosphere.  Individual satellite vaporization releases a far smaller volume of metallic vapors, particles, and aerosols, but the numbers add up in light of the number of spacecraft replacing or augmenting the constellation, as well as units no longer in service.  Each first generation Starlink satellite releases approximately 30 kilograms of material in its descent.  Second generation satellites are larger and accordingly will release a larger amount of particles.

            The composition of vaporizing satellites and other spacecraft includes aluminum oxide and trace minerals that are classified as pollutants:

Letting these satellites burn up in the atmosphere at the end of their lives helps keep the quantity of space junk to a minimum. But doing so deposits satellite ash in the middle layers of Earth’s atmosphere. This metallic ash can harm the atmosphere and potentially alter the climate. https://www.technologyreview.com/2024/12/09/1108076/satellite-reentry-atmospheric-pollution/. See https://research.noaa.gov/noaa-scientists-link-exotic-metal-particles-in-the-upper-atmosphere-to-rockets-satellites/; https://research.noaa.gov/projected-increase-in-space-travel-may-damage-ozone-layer/

           It should come as no surprise that Starlink, and their sponsored researchers and opinion leaders, seek limited, if any, governmental oversight and regulation of space activities.  The Heritage Foundation, Project 2025 Chapter on the FCC, written by the newly appointed Chairman, Brendan Carr, https://static.project2025.org/2025_MandateForLeadership_FULL.pdf Chapter 28, 845-859, recommends a most friendly regulatory environment, including expedited processing of satellite launch applications. The Heritage Foundation previously advocated for the elimination of environmental impact assessment of space activities.  See https://www.heritage.org/government-regulation/report/keep-environmental-red-tape-out-outer-space.

            Elon Musk, has singularly advantageous opportunity to influence governmental space policy in ways that favor his ventures. In a prior blog entry, I predicted that SpaceX soon will qualify for broadband universal service subsidies worth billions.  See https://telefrieden.blogspot.com/2025/02/add-millions-more-to-musk-account.html.

            Today, I predict that at some future date, measurable, costly toxification of space and earth atmosphere will be caused by known stakeholders who succeeded in foreclosing research, harm assessment, and conservation. They probably will not even incur the cost in the determination whether and how remediation is possible.

            Thank Elon Musk for his service to our nation.

Add Millions More to the Musk Account

           A Feb. 11th New York Times article missed a sizeable subsidy from the Federal Communications Commission that will add millions of dollars more to subsidies flowing to Elon Musk’s commercial ventures.  See (Elon Musk’s Business Empire Scores Benefits Under Trump Shake-Up; https://www.nytimes.com/2025/02/11/us/politics/elon-musk-companies-conflicts.html.

            Under new leadership, the FCC will reverse a prior determination that Starlink, does qualify for universal service funding, because the low earth orbiting network has substantially higher cost of service compared to terrestrial options, and it does not meet baseline requirements on data speed and reliability. This means Mr. Musk's Starlink venture will qualify for over $800 million in subsidies aiming to bridge the Digital Divide.  

            Consistent with FCC Chairman Carr's game plan, set out in the Heritage Foundation Project 2025, https://static.project2025.org/2025_MandateForLeadership_FULL.pdf, the FCC will exempt Starlink from essential environmental regulations. When launching thousands of satellites, Starlink significantly adds toxic gas into the atmosphere.  These satellites have a short operational life and their descent back to earth releases more toxicity from the incomplete vaporization of aluminum and other particles.  

 

Distinguished Researcher Award

  As someone who regularly devotes hours creating a single footnote for an academic manuscript, I am grateful to get any sort of public recognition.  I received the 2025 Distinguished Researcher Award from the Pacific Telecommunications Council, a non-profit membership organization committed to advancing digital infrastructure, telecommunications, and ICT globally, with focus on the Pacific Rim.

       Best of all, I got something far better than the usual lucite tombstone or recognition award:

Two Works in Progress on Threats to Space Commerce

     My current research agenda focuses on the growing threats to space commerce from space debris, the growing risk that space will become weaponized as a new theater of warfare, anti-satellite testing, spacecraft collisions, atmospheric pollution, unenforceable treaties, and regulatory uncertainty. The papers are available at: https://hq.ssrn.com/submissions/MyPapers.cfm?partid=102928

    Here are the two abstracts:

    Dangers From the Regulatory Vacuums in Outer, Inner, and Near Space

         Space, "the final frontier," has become an attractive, but increasingly risky market for both public and private investments.  Gold rush enthusiasm anticipates solutions to the Digital Divide via small low earth orbiting satellites, extraction of valuable minerals from asteroids, a vibrant space launch and tourism industry, and expanding earth observation opportunities.  Such entrepreneurial boldness juxtaposes with a severe lag in government oversight, consumer safeguards, and essential operational guardrails. The ambitious plans of Elon Musk and other space entrepreneurs could fail, despite recent market success, as SpaceX’s plans for 148 rocket launches in 2024.

    Without substantial refinement of global space treaties and effective national regulation, expanding and imprudent use of space resources could trigger "the tragedy of the commons," rendering the most valuable regions of space unusable. Satellites could collide, or strike orbiting debris at extremely high speeds.  Accidental collisions are more likely in a crowded orbital region, such as 200-1200 miles above earth where low earth orbiting satellites operate

    A much more costly calamity can occur when a valuable, fully operational satellite collides with space debris, such as a deactivated satellite, or when it becomes a target in a test of anti-satellite (“ASAT”) technology.  The likelihood of a space object collisions increases substantially when space faring nations and private ventures do not nudge no longer useful objects upward, farther into deep space, or on a downward trajectory toward earth that would guarantee complete vaporization.  The testing and future use of ASAT technology risks “weaponizing” space, despite treaty-level commitments to use it solely for peaceful purposes, benefitting everyone.

    This article explains how national governments have generated or tolerated the proliferation of space debris to potentially dangerous levels of space debris without penalty. It explains how intergovernmental agreements, such as the five space treaties administered by the United Nations, and the space/spectrum management agreements of the International Telecommunication Union, have not required space debris mitigation, nor sanctioned operators responsible for generating more space debris.

    The failure to address and resolve proliferating space debris from ASATs and abandoned space objects will increase the potential for calamities that render space access too risky. The article identifies how intergovernmental agreements can mandate space debris mitigation, impose sanctions for noncompliance, and create financial incentives for recycling and removing existing debris.

 Assessing the Impact of the Great Power Competition on Space Commerce

        Just as space commerce appears to have reached a critical mass, competing national government interests can thwart progress with strategies and tactics that increase market risk, volatility, and uncertainty. Despite universal support for a treaty-level commitment to pursue only peaceful activities, for the benefit of everyone, unilateral actions by the governments of China, Russia, the United States have the potential to disrupt markets and even weaponize space.  The five international treaties on space-related activities cannot foreclose weaponization of space as a likely new theater of warfare.

      So-called Great Power Competition has generated high stakes rivalry to retain or secure supremacy in military, political, economic, and societal spheres. The battle for a competitive advantage has the potential to reduce or even thwart continuing success in space markets, because conflict and rivalry on earth includes an increasingly volatile above ground component.

      This paper assesses two conflicting trends.  On one hand, space commerce in 2023 generated an estimated $630 billion in economic activity, rising to a potential $1.8 trillion by 2035. Low Earth Orbiting satellite constellations have the potential to bridge the Digital Divide by providing a reliable infrastructure for widely available and affordable broadband access, even in remote, rural, and impoverished locales throughout the world. Other developing market opportunities include development of a vibrant space launch and tourism industry, space exploration, colonization of the Moon and Mars and an expanded array of services via commercial satellites.

           On the other hand, longstanding and emerging challenges in outer space may shift from chronic and unresolved, to acute and potentially catastrophic. National governments and private ventures can avoid triggering worst case scenarios only if they accept compulsory limits on space weapons testing and use, coupled with effective measures to reduce the risk of collisions with discarded or active spacecraft.  

          The paper identifies the most pressing and emerging quandaries, many of which result from a nation’s failure to comply with limitations on space activity broadly framed by space treaties entered into force over 40 years ago. Because governments of the world have not reached consensus on whether and how to modernize the treaties, the currently in force agreements do not address market entry by private ventures, lack an enforcement mechanism to compel compliance, and rely primarily on the good will of all countries to support noble aspirations that increasingly deviate from individual national interests.  

          Recent deployment of unconventional space objects by China and Russia point to near term use of technologies for enhanced surveillance, and disruption, or even destruction of quite valuable in-space assets.  A national campaign to promote the acquisition of comparatively more power and leadership in space, by both the public and private sectors, can have consequences underappreciated in their severity.  

          The paper also explains how emerging technologies and business plans contribute to both revenue enhancement and greater risk of calamity. It offers specific recommendations on what unconditional and immediate commitments national governments and private ventures must make to avoid potential ruination of space.

            

The Deeply Baked First Amendment Rights and Limited Responsibilities of Information Service Providers

The network neutrality tennis match has been called in favor of the Republican Information Service team over Network Neutrality Democrats. Ventures providing broadband Internet access have no obligation to operate neutrally. And they have robust, unimpeachable First Amendment rights.

Information Service Providers, have every legal right to act as unneutral and biased as they want to be. That means no one—in a personal capacity, or on behalf of the federal government—can sanction participants in the Internet ecosystem on grounds they aren’t being fair and balanced, to repeat a past slogan.  They hold themselves out as family friendly, truth agents, and block (censor!) any content they deem harmful to children, snowflakes, wokeheads, anti-wokeheads, et al.

This may come as a newsflash to some, but it should not for anyone with a baseline sense of what the First Amendment protects. Someone surely in the know, is upcoming FCC Chairman Brendan Carr. Yet he appears to have promised President Trump and Elon Musk that the FCC, under his leadership, will push the envelope on official disregard for the First Amendment.

Surely Chairman Carr knows the FCC has no statutory authority to punish broadcasters, social networks, or broadband operators from being woke, too liberal, anti-Trump, anti-Musk and whatnot.

Back in the day, First Amendment advocates did not cleave on a Democrat/Republican fulcrum. Now it appears that people who should know and embrace the First Amendment seem clueless.

Unintended Consequences When the FCC Cannot Use Its Expertise and Respond to Changed Circumstances

          The conservative majority in the Supreme Court has worked tirelessly to prevent regulatory agencies from using their expertise to assess how changed circumstances affect statutory authority.  See, e.g., Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2266 (2024); available at: https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf; (overruling Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984); available at: https://supreme.justia.com/cases/federal/us/467/837/.       

          While I appreciate that the FCC can overreach, I worry that the Court has blithely ignored two serious problems it has created:

1)       It looks like the impact of non-deference forecloses even independent regulatory agencies, like the FCC, from interpreting laws that Congress did not, or could not future proof.  For example, the last major amendment to baseline telecommunications law occurred in 1996, with no assessment of how broadband and the Internet fundamentally change information, communications, and entertainment markets.

          Rather than defer to the FCC’s interpretation of ambiguous statutory authorization, the Court requires explicit and properly tailored legislation.  Congress has developed a loathsome reputation for not assessing what legislative amendments and additions are necessary and overdue.  If Congress predictably fails to act, then obsolete and quite probably harmful statutory language persists.

2)       Court appears more inclined to use non-deference as a basis for preventing regulatory agencies from expanding jurisdiction to address new and potentially severe quandaries.  It is easy to reverse an expansive or re-regulatory initiative as the 6th Circuit Court of Appeals did in its rejection of the Democratic majority FCC’s effort to interpret broadband access as a telecommunications service. See https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0002p-06.pdf.

          Going forward, will courts apply non-deference to regulatory expansion clearly responding to a problem, which not addressed would trigger severe, quantifiable harm?  

          For example, the FCC has limited and ambiguous authority to assess the environmental impacts of telecommunications service providers.  See https://www.fcc.gov/general/nepa-faq. Reviewing courts and sponsored advocates already consider the scope of FCC space environment oversight quite limited, See, e.g., https://law.justia.com/cases/federal/appellate-courts/cadc/22-1337/22-1337-2024-07-12.html; https://techfreedom.org/fcc-lacks-statutory-authority-and-expertise-for-outer-space-activities/, despite the irrefutable fact that spacecraft reentry has significant, adverse impact on the earth’s atmosphere and the pace of global warming. See, e.g., https://indico.esa.int/event/493/timetable/?view=standard_inline_minutes.

          The vast increase in space launches and injection of toxic gases and particles, including aluminum oxide, from space objects reentering earth’s atmosphere raise questions about future sustainability of space and the impact of on earth’s atmosphere. Even the complete vaporization of space objects appears to have potentially hazardous impacts on the environment below. “In a series of high-altitude research flights over Alaska and the U.S. Midwest in March and April, researchers sampled stratospheric air using specialized mass spectrometers. They discovered surprising amounts of many metals commonly used in rockets and satellites, often in ratios mirroring those found in specific high-performance aerospace alloys. The investigation revealed that the metals are accumulating within sulfuric acid particles, which constitute most of the stratosphere’s particulates and influence our world’s ozone layer and climate.” Leonard David & Lee Billings, Space Junk Is Polluting Earth’s Stratosphere with Vaporized Metal, Scientific American (Oct. 26, 2023); https://www.scientificamerican.com/article/space-junk-is-polluting-earths-stratosphere-with-vaporized-metal/.

          Would any reviewing court affirm a decision of the FCC to expand its regulatory oversight and require space ventures to assess the environmental impact of its vastly expanded launch and spacecraft vaporization activities?  I do not think so, particularly for any venture led by Elon Musk. See https://ehtrust.org/federal-court-rules-in-favor-of-fcc-space-x-can-launch-thousands-of-satellites-without-environmental-review/

          What court would risk being overturned by the Supreme Court for considering it rational and consistent with statutory authority for the FCC to make some assessment of the impact on earth from toxic emissions above?