New Publication: The Commercial Space Marketplace in Flux

You might have an interest in my deep dive on the promises and pitfalls in the space commerce gold rush. The paper will appear in the an edition of Telecommunications Policy celebrating its 50th year of publishing.

See: https://authors.elsevier.com/a/1mcHj16AgYU2H2

SpaceX Proposes a Million More Satellites on Paper

           SpaceX has filed a groundbreaking proposal to launch and operate one million small satellites as a data center in space. See https://fccprod.servicenowservices.com/icfs?id=ibfs_application_summary&number=SAT-LOA-20260108-00016. 

          My two immediate reactions: Wow! and Is There Less Than Meets the Eye?

          First the Wow!  In the spirit of moving fast and subverting conventional wisdom, SpaceX and Elon Musk have turned the AI and Data Center topography upside down.  Launch a massive constellation of small satellites in Low Earth Orbit and the gravitational pulls from water, electric power, and real estate issues, as well as many unresolved regulatory, international law, and U.S. treaty commitments evaporate. Poof!

          Is this a great country or what?

          With this filing, Space X proposes to increase the number of orbiting spacecraft from about 12,000 to 1,112,000 (European Space Agency non space data center forecast of 100,000 satellites by 2030 (see https://www.esa.int/ESA_Multimedia/Sets/Space_Debris_Is_it_a_Crisis).

LEO orbiting satellites will not deplete any scarce terrestrial resources. Surely Artificial Intelligence applications will get a boost as will U.S. competition to maintain global technological, military, and commercial space supremacy.  At least conceptually, we consumers of data center and broadband service should benefit from faster, better, smarter, cheaper, and sustainable cheaper goods and services.

          What’s not to like?

          A lot, which leads me to: Is There Less Than Meets the Eye?

          While admiring the quest to capture first mover market advantages and public imagination, I hereby throw cold water, aluminum particles and gas from vaporizing space junk, and other inconvenient, but not easily ignored issues, making the project far less than it appears from recent headlines and social network posts.

          First, consider the number of exceptions SpaceX wants the FCC to issue.  For a summary of the waiver requests, see https://www.fcc.gov/document/sb-accepts-filing-spacexs-application-orbital-data-centers. In simple English, SpaceX wants the FCC to treat the application exclusively and not in the customary filing window where other similar applications would get considered at the same time.    

            SpaceX also wants exemption from all milestone requirements and deployment obligations meaning that it has no deadlines and benchmarks to satisfy as proof of ongoing progress toward complete deployment of satellites and the start of service. Contrast that request with Elon Musk’s forecast that the data center in space will reach a critical mass in 30-36 months from now with more AI space launches than terrestrial expansion within 5 years. See https://finance.yahoo.com/news/elon-musk-getting-serious-orbital-185049655.html.

          Despite its considerable access to internal and external funding befitting a venture with an estimated value of $1 trillion, SpaceX seeks the waiver of all surety bond requirements and obligations. Lastly, SpaceX wants to work on its ambitious project without disclosing technical details such as channel plans for licensed beams, uplink and downlink beams, command beams, and orbital plane configurations.

          If the FCC were to grant such an extensive waiver wish list, SpaceX would have quite limited obligations to disclose how its space data center would operate and whether other competing satellite constellations could share that part of LEO having the right combination of solar power potential and heat discharge.

          There is a growing list of chronic and emerging issues that call into question whether space, as enormous as it is, can accommodate 1 million more LEO satellites in relatively close proximity to each other. Space tourism, asteroid mining for scare minerals, and the colonization of the Moon and Mars, also will require shared access.  A massive increase in spacecraft, coupled with an expectation that earth hostilities will have a space surveillance, military, and warfare component substantially raise the odds for collisions, as well as an increase in toxicity from spacecraft launches and vaporization when falling back to earth.

          The SpaceX grand proposal reminds me of the absolute necessity of having both full disclosure of technical, operational, radio spectrum, and orbital plane usage, coupled with a realistic timeline for starting service.  Without these requirements, and “skin the game” financial commitments, subject to forfeiture, SpaceX can, worse case, propose nothing more than a paper satellite constellation that could chill investment in competing, perhaps less ambitious but more timely and practical projects.

          It makes sense to consider the six pages of conditions imposed by the FCC for StarLink’s second generation broadband network. See https://docs.fcc.gov/public/attachments/DA-26-36A1.pdf.

          If the FCC wants to remain true to its “Open Skies,” procompetitive ethos, it has to offer flexibility in its processing of innovative service applications, but also guard against ambitious paper satellite proposals designed to preempt competition and corner a market years before the first of one million satellites reaches orbit.

              

Might I Have Identified an Editorial Flaw in a New Yorker Article?

          Readers of the New Yorker probably know that everyone affiliated with production of the magazine takes extreme pride in the editing and fact checking process. Surprisingly, I think I may have found an error.

          The  Dec. 8, 2025 edition of The New Yorker contains an article on sports stadium cost and design. https://www.newyorker.com/magazine/2025/12/08/how-the-sports-stadium-went-luxe (probably fire walled to non-subscribers). At p. 38, the article contains a sentence that appears to have evaded a necessary edit to remedy a near certain reader misinterpretation.  The states that in light of the paucity of available NFL football games at a sports venue, "limited demand has pushed prices up."

           Under conventional economics, limited prospective consumer demand would force a reduction in price to fill seats that would go unpurchased at the supplier desired full price.  Vendors of various goods and services typically discount prices when demand does not clear out available capacity. In most instances, vendors would rather accrue some revenues by selling a good or service at lower price than have it unpurchased.  This includes stadium seats, particularly when NFL owners needed a "sold out" stadium to secure the right to broadcast the game locally. 

           I believe author John Seabrook intended to convey the point that when demand for a seat at an NFL football game exceeds the available 10 opportunities at a single venue, with 20 in Sofi in light of two different home teams, exceeding available seating capacity and viewership opportunities would trigger an increase in price.

           In other words, too much demand chasing a limited number of available seats in the 10 or 20 available games per year drives prices sky high to satisfy robust demand.  In economic vernacular, this type of demand is inelastic, because there are limited, if any, substitute products or experiences.  Attending a pre-season game, or a conference "away" game is not "functionally equivalent," because the stakes and crowd vibe are not the same as an in-season, home game.

           Might I have convinced the author, editor, and fact checker that the sentence should read in part limited seat availability and robust demand for tickets push prices sky high?

 

 

 

           

 

 

The National Security Trump Card in Spectrum and Wind Farm Policy

          National security concerns often provide a “first among equals” status for government agencies having both justifiable and questionable radio spectrum exclusivity demands.  In some choice frequency bands, U.S. federal government users control over 50%.  See, e.g., Westling, J. (2024). 2024 State of Spectrum. American Action Forum; https://www.americanactionforum.org/insight/2024-state-of-spectrum/.

           Even existing government spectrum users will make do with less bandwidth and even share frequency bands when the FCC creates sufficient financial incentives, such as providing ample funds for incumbents to “refarm” spectrum with more efficient equipment using software and other techniques.

           Suddenly out of nowhere, national security concerns apparently warrant abrogation of 5 ocean leases for wind farms, with an immediate cessation of operations or construction. https://www.reuters.com/business/energy/us-pausing-five-offshore-wind-projects-over-national-security-concerns-burgum-2025-12-22/.  Apparently, there is no compromise and mutual accommodation possible like that brokered between public and private spectrum users.  Despite a growing gap between available electricity supply and demand, even operational wind farms on the east coast must shut down immediately.

           Currently, the national security justification has not been extensively articulated.  Apparently, there are concerns that wind warms might interfere with the functionality of radars used in aviation and other essential functions.  Hmm.  Has any expert considered the possibility of routing around the wind farms?  For example, commercial airlines typically use specific routes, known as vectors.  They can deviate from the vector to avoid turbulence and other challenges, and of course, the vectors, as constructs of airspace, can be adjusted.

           I cannot help but notice some factors that may or may not have applicability.  For example, the 5 shut down wind farms are operated in states with a Democratic Party majority.  Danish investors participate in 2 of the farms and their government has balked at ceding control of Greenland to the U.S.  Our President does not like wind power, particularly when located in close proximity to a Scottish golf course he owns.

           Of course there are plausible concerns about wind farms.  But one would think the tendency toward over-regulation and red tape would have considered all possible problems. It takes years for a wind farm proposal to secure all necessary permits.

           Is national security a plausible, and solvable factor in wind farm policy?  The similarly contentious, high-stake radio spectrum market shows compromise is achievable.

The Federal Communications Commission and the Unitary Executive Doctrine

        In a rational and intellectually honest jurisprudential world, the FCC’s jurisdictional wingspan would invalidate any grand expansion of Presidential powers. Like the Federal Reserve and other independent regulatory agencies, such as the FTC,  the FCC clearly integrates, judicial, and legislative functions as explicitly set out by law, the Communications Act of 1934, https://www.govinfo.gov/app/details/COMPS-936/.

           There are several inconvenient truths that should thwart a further erosion of the legislative branch’s separate and equal powers, consistent with the three-branch governmental model established in the Constitution. Congress decided to create an independent communications regulatory authority instead of continuing to rely on an Executive Branch agency, the Commerce Department.  The Communications Act of 1934, as amended, authorizes the FCC to serve the “public interest convenience and necessity,” not whatever goals, motivations, and strategies the Executive Branch might have in communications law, policy, regulation, strategy, etc.

           The Communications Act authorizes the FCC to execute judicial and statutory interpretation functions. Sec. 501 of the Act empowers the Commission to impose fines and jail time for certain violations. https://www.law.cornell.edu/uscode/text/47/501.  How could this not be an independent, judicial function, particularly in light of the fact that NTIA cannot impose such sanctions?

           The Executive Branch implicitly recognizes the legitimacy of the FCC in several ways. Most important, there exists a division of responsibilities between the Executive Branch and the FCC.  The National Telecommunications and Information Administration is an agency within Commerce Department.  https://www.ntia.gov/book-page/national-telecommunications-and-information-administration.

           NTIA clearly articulates its responsibility as the “President's principal advisor on telecommunications and information policy issues, and in this role frequently works with other Executive Branch agencies to develop and present the Administration's position on these issues.” See Executive Order 12046;  https://www.archives.gov/federal-register/codification/executive-order/12046.html; and the National Telecommunications and Information Administration Organization Act, P.L. 102538, 106 Stat. 3533 (codified at 47 U.S.C. 901-904); https://www.congress.gov/102/statute/STATUTE-106/STATUTE-106-Pg3533.pdf.

           I worked at NTIA and devoted much time in helping prepare filings in FCC proceedings articulating the Executive Branch’s positions.  The FCC had complete authority to embrace, reject, or even ignore such recommendations.

           The FCC and NTIA have different responsibilities and constituencies.  For example, NTIA serves as the primary advocate for, and articulator of Executive Branch radio spectrum policy.  The federal government has substantial and exclusive access to 50% or more of the frequencies in many portions of the usable spectrum.  NTIA largely seeks to sustain federal government spectrum exclusivity, while the FCC’s public interest mandate requires an assessment of many factors, including those that would promote competitiveness, employment, and commercial success, by requiring federal spectrum users to make do with less spectrum, or share it with non-interfering private ventures.

           Once upon a time, the Supreme Court opted to act with humility, on a nonpartisan basis.  Its Chief Justice vowed to “call balls and strikes” as an umpire, and not an interventionist intent on legislating from the bench. Now the Court majority seems hellbent to reach preordained outcomes regardless of the facts. 

           Where did judicial restraint and conservatism go? 

A Three Second Appearance on the Today Show

             Today, I achieved a dubious new record for the shortest appearance in a national media news report.  See https://www.today.com/video/why-more-companies-are-hanging-up-on-landline-phones-254027845824.  

          On an NBC Today Show story about the imminent shut down of copper wireline telephone service, I stated: “The concern is: at the worst possible time, the phone doesn’t work.”  

          Ironically, just as I was online to participate in the Zoom interview, my microphone inexplicitly stopped working.  An hour later, I managed to repair the problem without a premises visit, or telephone coaching from an expert.  Estimates on current Illinois landline subscribers, scheduled to lose service in 2027, range from 1-3 million. See https://www.nbcchicago.com/news/local/att-to-end-landline-service-in-illinois/3859156/.  

          What could possibly go wrong with the migration from wireline service to AT&T’s proposed combination of broadband delivered Voice over the Internet Protocol (“VoIP”) backed up by a wireless, cellular service link?  See https://www.att.com/home-phone/phone-advanced/.  

          I have addressed this issue through extensive legal and policy analysis.  See, e.g.:  

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/;  

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;  

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;  

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.  

          On occasion, I have tried to explain the considerable costs and benefits from the transition, see e.g., https://www.npr.org/sections/alltechconsidered/2013/11/18/246001725/have-we-reached-the-end-of-the-landline.  

          But today, perhaps the best question to ask and answer is: Have you ever lost the ability to make or receive wireless telephone calls? Has you broadband access stopped working for no apparent reason?  

          I suspect everyone has encountered a problem.  My worst case occurred when a garden variety thunderstorm created a four-day electrical outage largely due to the failure of the public utility to replace old poles and transformers.  

          Some other questions: What could possibly go wrong for 3 million involuntary participants obligated to install a VoIP device that AT&T estimates will only take 15 minutes to activate?  Has anyone encountered a problem installing their cable modem, wireless router, and other so-called peripheral devices? Did you end up paying for someone to finish the job, just as AT&T is willing to do for an additional charge?  

          I explained that AT&T and other local exchange carriers have pursued a multiyear campaign to shut down landline service.  No flash cut strategy like that pursued by Verizon after Superstorm Sandy decimated the local loop in parts of Connecticut, New Jersey, and New York.  

          All Good Things apparently must come to an end.  In the case of wireline service: 99.999+% reliability, in light of phone company provided electricity and lots of underground conduit, and relatively low prices, certainly less than AT&T’s $45 plus taxes and fees rate for its Phone-Advanced replacement of Plain Old Telephone Service.  

          I appreciate that AT&T, Verizon, and other local exchange carriers incur a substantial financial burden maintaining the copper wireline network. However, I do not think the carriers, legislative and regulatory officials and other stakeholders appreciate what kind of burden will shift onto the wireline holdouts.  

          Current POTS subscribers are disproportionately rural, elderly, and solitary occupants. As well, they are mostly are so-called Digital Immigrants, not younger Digital Natives.  They fervently believe: “if it is not broken, do not fix it.”  

          By disposition and circumstance, POTS subscribers are the most vulnerable to outages and calamities. Fiber optic links are rarely located in rural locales and cell towers are more widely spaced.     

          On a personal note, I gave up wireline service in 2025 and have determined that I live in a dead zone where cellphone service is not ideal.  Can you hear me now?  

          Not necessarily.

 

           

 

         

 

 

 

 

 

 

 

 

 

 

 

 

         

 

Courts Approving Algorithmic Pricing Without Explicit Agreement Ignore Reality

Yet again, a federal court has embraced sponsored research and advocacy to legitimize an obvious case of implicit collusion that results in higher prices for consumers. See  https://business.cch.com/ald/GibsonvCendynGroupLLC8182025.pdf.  In the 9^th Circuit’s rationale, if any and all hotels in Las Vegas use the same software to determine profit maximizing rates, antitrust law is not violated, because each hotel owner voluntarily opted to use the software and made no commitment to comply with its pricing recommendation.

In the real world, ventures would rather not devote sleepless afternoons enhancing consumers’ value proposition, if an expedient and less profit risky alternative exists.  This used to be called “conscious parallelism,” a horizontal restraint of trade when competitors collude.

Collusion can occur outside of smoke-filled room occupied by competitors.  The algorithm makes the calculation, and the competitors buy into the premise that higher prices will not encourage market entry and greater supply, which typically would create downward pressure on prices.

All Las Vegas hotels, wireless carriers, airlines, et al cannot possibly have the same operating costs, so that they all are bound to accept the same market-driven price, so-called price taking.  Until algorithmic pricing became the go-to strategy, a wider range of prices typically arose. Now, it’s easier and more profitable for just about every hotel to tack on a resort, amenity, or destination fee, in addition to items like parking that used to be free or bundled in the base rate.

Why should Southwest Airlines offer free baggage, open seating and other components that can be separately priced by an algorithm?  For that matter, why have a publicly available rate for carriage when an algorithm can “size up” individual potential passengers and determine a customized rate based on calculated demand and price elasticity?

Why should TMobile offer anything cheaper and innovative when a higher price umbrella offers higher profits?

Where have all the marketplace mavericks gone?  It looks like shopping for algorithms and clever antitrust lawyers and economists.            

Strategic Capitulation to Speech Threats at Great Public Expense

Never in my 45-year career in telecommunications law and policy, have I witnessed a cascade of public and private tactics and stunts that collectively chill lawful speech and the robust rights of free speech and expression for both public officials and private citizens. Major broadcast networks have agreed to pay millions for the termination of litigation, and impeding, but unspecified, government “investigations.” 

These payments might amount to a small insurance premium guaranteeing necessary government approvals of a multi-billion dollar acquisition, or termination of black sheep status.  However, they severely dilute the value of our First Amendment right of free expression and what a civil society must tolerate. Bear in mind that hateful words and deeds qualify for First Amendment protection, even if many of us would consider such them deplorable and extremely inappropriate.  

I see nothing in what Jimmy Kimmel and other popular commentators have uttered coming close to unlawful “true threat” speech likely to trigger, near term violence. Our government, including the Federal Communications Commission, has no lawful authority to thwart, sanction, censor, chill, and threaten costly investigations of speech that many of us might find hateful, inappropriate, and in poor taste. 

An employer can lawfully terminate someone who makes such expressions in the context of her employment, but who among us wants a government able to intervene in employment and substantive content preparation by private parties? How would the right wing handle more than “regulation by lifted eyebrow” by a Democratic FCC Chairman?  

How close to an official governmental shake down would it take to cry foul? President Obama’s keen interest in network neutrality regulation and President Biden’s concern about Big Tech self-censorship do not come close. 

Now we have private and public censorship masquerading as a demand for fairness and viewpoint diversity.  ABC has to assuage a disgruntled network affiliate demanding financial contributions and other reparations for perceived unacceptable, but clearly legal speech of an “at will” employee.  

What do you make of the millions demanded and paid in cash and billable hours to draw down threats and withholding already congressionally allocated research funds? When does a strategic lawsuit dampen public participation in governance and enrich public and private players?

I understand how uncivil society has become. There are many culprits and not a clear path to civility, humility, and agreeing to disagree.  But demanding financial reparations, firing employees expressing personal viewpoints, and shaming to the point of cancelling discourse is not the way forward.

Just last year, a unanimous Supreme Court endorsed a decision written by Justice Sotomayor, in NRA v. Vullo; https://www.supremecourt.gov/opinions/23pdf/22-842_6kg7.pdf.

The Court unanimously rejected threats of regulatory sanctions and investigations by a New York state governmental official against lawful Second Amendment advocacy by the National Rifle Association. Sadly, I do not have confidence that when the shoe is on the other foot, currently at the FCC and elsewhere, the Court unanimously would apply its newly minted precedent that builds on decades of universally supported First Amendment jurisprudence.

Sad.

Mistruths and Snark Combined in Andy Kessler’s Good Riddance to Public Media

Rarely does a Wall Street Journal op-ed eschew snark, righteous indignation, sanctimony, and arrogance. It comes with the territory, but I would not expect writers to get away with mistruths and overstatements to make their assertions more credible and vivid.

Along comes today’s good riddance to government subsidized public media from a hectoring Andy Kessler: We Won’t Miss Government Media; available at:  https://www.wsj.com/opinion/we-wont-miss-government-media-ce321e65 (may be firewall protected). While I agree with Mr. Kessler on the need for a robust First Amendment and quite limited government involvement in speech, the op-ed contains unnecessary hyperbole and worse added to prove his point.

Mr. Kessler refers to a surely unscientific, if not fictitious, survey of the political affiliation of NPR’s Washington, D.C. editorial staff, as reported by a senior editor there. Mr. Kessler, must have the damaging survey results right on his desk: 87 Democrats, presumably including Mr. Kessler’s source, and 0 Republicans. 

Mr. Kessler assumes that such skewed results directly impact the substance of NPR’s reporting.  Who can be “fair and balanced” if everyone has an affiliation with the Democrats?  Mr. Kessler asserts that NPR is awash with politicization and “swamp support,” easily inferred as Democrats, who also are card carrying members of the scum that he so loathes.

Mr. Kessler sees no need for taxpayer funded public media, but I wonder whether he objects to other forms of financial support for conservative radio voices, including nonprofit status that reduces or eliminates tax liability. He also sees no need for radio, at least public media, given the cornucopia of podcasts.

This independent, far from liberal, rural resident listens to and supports public media, because I seek a fair, balanced, and journalistically superior product.

I know it when I hear it.

 

 

New Publication: Rob Frieden, Dangers from Regulatory Vacuums in Outer, Inner, and Near Space, 90 J. AIR L. & COM. 3 (2025)

 

ABSTRACT 

            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.

 

 

Proof Wireless Carriers Would Rather Not Compete on Price

          For years, I have expressed an educated opinion that wireless carriers would rather not “devote sleepless afternoons competing.” While I may have reached the boundary line of snarkiness, which I try hard not to breach, the point stands: carriers can better enhance share prices, profit margins, and bonus likelihood if they implicitly agree not to sharpen their pencils too often. Consumers pay a higher price for service.

          I also have frequently stated that industry consolidation enhances the likelihood of a mutual non-compete pact.  Specifically, the acquisitions of Sprint and other wireless carriers have so concentrated the market that the triopoly of AT&T, Verizon, and TMoble now collectively share a 96% market share. See https://blog.telegeography.com/2025-mobile-market-summary.

          I predicted the TMobile’s acquisition of Sprint eventually would eliminate TMobile’s iconoclastic, market disrupter posture.  See, e.g., https://telefrieden.blogspot.com/2018_06_17_archive.html.  The Judge who approved the merger disagreed, confidently concluding that TMboble would never relinquish its “uncarrier” maverick character.  He anticipated a “company reinforced with a massive infusion of spectrum, capacity, capital, and other resources, and chomping to take on its new market peers and rivals in head-on competition.” See https://storage.courtlistener.com/recap/gov.uscourts.nysd.517350/gov.uscourts.nysd.517350.409.0.pdf; https://telefrieden.blogspot.com/2018_06_17_archive.html.

          I was not surprised to read that several industry analysts have consider TMobile as a go along, get along, no so innovative and aggressive competitor, having its uncarrier disposition.  See Monica Alleven, What happened to T-Mobile's ‘un-carrier’ edge?, Firece Network (May 6, 2025); https://www.fierce-network.com/wireless/what-happened-t-mobiles-un-carrier-edge.

          Only a coined operated, sponsored researcher can unconditionally assert that industry consolidation “enhances competition.” Mergers make it more likely that the remaining ventures engaged in what antitrust economists term conscious parallelism. Rather than compete on price, the wireless carriers offer roughly the same rates.

          Apparently, AT&T, TMobile, and Verizon have identical costs of doing business, so much so they become price takers.  Lacking any efficiency cost advantage, the carriers set prices based on what the other two offer.  The highest rates offered by one of the three carriers becomes an  cap.  The carriers’ rate fit snugly at or slightly below the umbrella cap.

          Less is More? No, less is less: less innovation, little price competition, and reduced consumer welfare.

 

 

         

 

 

 

           

 

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.