The White House's directive that all construction materials used in federal infrastructure projects, including fiber cable, be American made shouldn't cause big delays in or cost run-ups for fiber for broadband equity, access and deployment (BEAD) projects, we were told. It's less clear whether the directive could cause challenges in obtaining the electronics -- typically made overseas -- used to light the fiber.

The FCC appears close to releasing a Further NPRM on authorizing fixed-wireless and Wi-Fi outdoors, at standard power levels, in the 5.9 GHz band, industry officials said. More than 200 wireless ISPs and others have received FCC permission to use the band since the start of the COVID-19 pandemic under grants of special temporary authority (STA), but the Wireless ISP Association pressed the FCC to act on final rules.

The Biden administration shouldn’t block U.S. companies from providing supplies to China’s Huawei by tightening export controls, the Information Technology and Innovation Foundation said Tuesday. Various news outlets, citing unnamed sources, report the administration is considering that. The White House didn't comment. “The administration’s ongoing efforts to bolster U.S. technology competitiveness have been commendable, but fully cutting off Huawei from U.S. suppliers would likely have the opposite effect,” said Stephen Ezell, ITIF vice president-global innovation policy. “Huawei technologies are already banned from U.S. telecommunications networks, which undercuts the national security rationale for cutting it off” and “there is a strong economic rationale not to cut off Huawei,” he said. China is a critical market for U.S. technology vendors, accounting for 36% of U.S. semiconductor sales as recently as 2019, Ezell said: “Every dollar a U.S. technology company earns in the Chinese market is one that Chinese competitors don’t earn, so banning exports to Huawei helps Chinese technology suppliers and hurts their U.S. counterparts.”

The Information Technology and Innovation Foundation recommended market mechanisms to promote more efficient use of federal spectrum. “There are good reasons for the federal government to have access to spectrum,” ITIF said in a report released Monday: “Everything from weather satellites to military radar relies on reliable access to radio frequencies, and we all have an interest in these systems working well. But there are also good reasons to approach federal spectrum holdings with a degree of skepticism.” Federal users don’t face “market discipline because their spectrum is unpriced,” ITIF said. “While NTIA evaluates potential trade-offs and charges a nominal fee to spectrum users, there is nothing close to a market-based usage fee to incentivize agencies’ economization of their spectrum use, either by using a smaller range of frequencies to accomplish the same goals or by reducing the number of goals for which they rely on spectrum,” the report said. ITIF urges Congress and the Office of Management and Budget to make the spectrum relocation fund (SRF) more flexible so it can be used to upgrade equipment and for longer-term planning and research on spectrum efficiency gains. The government should auction more overlay giving the licensee “a right to use a federal agency’s spectrum if that agency agrees,” the report said. It also asks the federal government to reduce its “spectrum footprint” by using higher quality receivers and migrating services to commercial 5G networks when possible. As the FCC is “reviewing ways to improve the interference immunity of receivers operating in spectrum under its jurisdiction, the federal government should do the same,” the report said. “While it is more difficult to objectively characterize the performance of a receiver than that of a transmitter, working toward technological developments that can improve the status quo is essential. The alternative is receivers that are vulnerable to interference from nearby bands, which either threatens the integrity of the federal service or precludes commercial operations well outside the federal agency’s band.” The administration should also take a more active role in managing agencies’ spectrum use, “both through better accounting for the costs of federal uses and by making increasing commercial spectrum capacity a high-level priority,” ITIF said.

The Free State Foundation and the Information Technology and Innovation Foundation applauded Tuesday's unanimous decision by the U.S. Court of Appeals for the D.C. Circuit in Green v. U.S. for upholding the constitutionality of the anticircumvention provisions in Section 1201 of the Digital Millennium Copyright Act. The two plaintiffs in Green wanted to publish works or create and sell devices intended to bypass security measures for accessing copyrighted works. They raised pre-enforcement First Amendment challenges to Section 1201, claiming the law is a facially overbroad restriction on protected speech and its application would unconstitutionally restrict their rights to engage in their projects relating to the bypassing of "technological protection measures.” The question before the court was whether the DMCA “is likely to violate the First Amendment rights of two individuals who write computer code designed to circumvent those measures,” said the D.C. Circuit opinion (docket 21-5195). “The district court answered no, and we agree.” The D.C. Circuit “was absolutely right to reject the flimsy First Amendment claims raised in Green,” Seth Cooper, FSF director-policy studies and senior fellow, blogged Wednesday. Constitutionally protected free speech “is an indispensable part of American freedom,” but those bedrock rights “were nowhere jeopardized by Section 1201,” he said: “The case was not a close call.” The decision was “an important vindication of copyright owners' right to exercise control over who can access their valuable creative content,” said Cooper. The ITIF agrees the court “reached the right decision” because the public “does not have a right to circumvent subscription-based platforms to gain unfettered access to creators’ works free of charge,” said Senior Analyst Jaci McDole Tuesday. The Constitution “provides creators intellectual property rights for a reason,” she said. “Creators’ livelihoods depend on controlling how their works are distributed and sold. It’s welcome news that the court upheld those constitutional rights in the Green case.”

The U.S. fixed and mobile broadband markets are "competitive" and the "central remaining challenge" is broadband adoption, said the Information Technology and Innovation Foundation's Jessica Dine and Joe Kane in a new report Monday. Promoting adoption "means a better explanation of the benefits and importance of the Internet, widespread education in digital literacy, and better access to both affordable internet plans and the necessary technology," the authors wrote. The report said about 98% of Americans have access to a fixed connection, but only 62% of households subscribe to a connection of at least 25/3 Mbps "despite its wider availability." The report "not only highlights the state of the Internet ecosystem but also the many complexities and shortcomings with data used to evaluate it," Kane said: "That’s why it’s important to steer clear of a myopic focus on a single dataset or aspect of the broadband."

Trade Law Daily is providing readers with the top stories from last week in case you missed them. All articles can be found by searching on the title or by clicking on the hyperlinked reference number.

Sen. Mark Warner, D-Va., one of the primary movers behind the Chips Act, told an audience that more domains need policymakers' attention so that they don't wake up to find that China has become dominant in an important emerging technology. He noted that before becoming a politician, he "was in the telecommunication space," and said that realizing that China is dominating 5G with two heavily subsidized champion companies was the "final wake-up call" that engagement and deeper trade with China is not the right way to go.

Sen. Mark Warner, D-Va., one of the primary movers behind the Chips Act, told an audience that more domains need policymakers' attention so that they don't wake up to find that China has become dominant in an important emerging technology. He noted that before becoming a politician, he "was in the telecommunication space," and said that realizing that China is dominating 5G with two heavily subsidized champion companies was the "final wake-up call" that engagement and deeper trade with China is not the right way to go.

The Information Technology and Innovation Foundation says the Section 301 tariffs on Chinese imports have been fruitless, and antidumping and countervailing duty laws also are inadequate to counter the wide variety of abuses from China -- industrial espionage, forced technology transfer, discrimination against foreign sales in China, as well as enormous subsidies. "It is time for the U.S. government, ideally working with allies, to craft and implement a new set of trade defense instruments," ITIF Founder Robert Atkinson wrote in a white paper released Nov. 21.