The Free State Foundation

In a new paper in the Perspectives from FSF Scholars series entitled, "Don't Inflict Analog Era Equipment Regulations on the Digital Age," Randolph J. May, President of the Free State Foundation, urges the Federal Communications Commission to extend the current July 2007 date by which all multichannel video program distributors (MVPDs) –except DBS operators—must stop selling or leasing any navigation device used to access MVPD programming that integrates both security and non-security functions. According to May, in light of the changed technological and marketplace developments, "the case for promptly granting waivers which extend the current implementation date of the navigation device integration ban is compelling in order to avoid imposing significant costs on consumers without countervailing benefits." Indeed, the same technological and marketplace developments, including the increasingly competitive multichannel video marketplace, "should impel the Commission at the same time to begin a review to determine whether the agency's navigation device regulations should be eliminated entirely pursuant to the congressional sunset directive. See the full news release here.

In a commentary published on CNET entitled, "Heading Off A Potential FCC Debacle," Randolph J. May, President of the Free State Foundation, urges the FCC to quickly extend the current July 2007 date by which cable operators and other multichannel video program distributors ("MVPDs") must comply with the agency's regulation banning MVPDs from selling or leasing new equipment that integrates both security and non-security functions. In light of the substantially changed technological and marketplace developments since the integration ban was adopted, including the near term prospect of consumer devices using downloadable security, May contends "implementing the integration ban in the meantime would be very costly to consumers with no real benefits." In the Telecommunications Act of 1996, Congress explicitly granted the FCC authority to waive its MVPD equipment regulations in light of changing circumstances, and May says "this is a case crying out for regulatory relief." Read the commentary here.

In a commentary published in the September 18 edition of Broadcasting & Cable magazine, Free State Foundation President Randolph J. May contends that net neutrality mandates likely would violate the First Amendment free speech rights of the broadband Internet service providers. Most net neutrality mandate proposals require broadband Internet Service Providers to post or send any content presented to them. May stated that: "Such compelled-access mandates are akin to the right-of-reply statute the Supreme Court in 1974 held violated a newspaper's First Amendment rights. Granted, competition among ISPs will likely prevent them from adopting such non-neutral practices. But the government shouldn't." Read the commentary here.

Randolph J. May, President of the Free State Foundation, argues in a new essay, "Net Neutrality Mandates: Neutering the First Amendment in the Digital Age," that the various proposals to impose net neutrality mandates likely would violate the First Amendment free speech rights of the broadband Internet service providers. May concludes: "This strange push for new access mandates under the guise of net neutrality presents a clear case where greater appreciation for the First Amendment's free speech values will lead to sounder communications policy. We should not allow net neutrality to neuter the First Amendment in the digital age." With a full discussion of the pertinent First Amendment jurisprudence, this essay is a significantly expanded version of an opinion column published in the National Law Journal in August. Read the full essay here.

In an essay published in The Examiner, Randolph J. May, President of the Free State Foundation, asserts that Verizon's lawsuit against Montgomery County, Maryland "illustrates why it is time to change the law to establish a national video franchise regime, one that treats telephone companies and incumbent cable television operators alike in all respects." According to May, in today's environment, "there is no reason why either cable operators or other video providers such as Verizon should remain subject to local franchise requirements." In the meantime, the county should get on with the process of granting Verizon permission to enter the "cable television" market.  "More competition means consumers benefit from lower prices and better quality of service," says May. "This simple proposition should not be that hard for Montgomery County's elected leaders to grasp." The PDF is here.

In this essay published in the National Law Journal, Free State Foundation President Randolph J. May contends that net neutrality mandates likely would violate the First Amendment free speech rights of the broadband Internet service providers. May argues: "Even if neutrality mandates made good sense, they should not be imposed if they impinge on constitutional rights. The First Amendment's language is plain: ‘Congress shall make no law . . . abridging the freedom of speech.' ISPs like Comcast and Verizon possess free speech rights just like newspapers, magazines, movie and CD producers or the man preaching on a soapbox. They are all speakers for First Amendment purposes, regardless of the medium used. And under traditional First Amendment jurisprudence, it is just as much a free speech infringement to compel a speaker to convey messages that the speaker does not wish to convey as it is to prevent a speaker from conveying messages it wishes to convey." According to May, although often overlooked, "important constitutional interests are at stake in the raging net neutrality debate. Greater appreciation for these constitutional values, especially freedom of speech, is likely to lead to sounder communications policy." The full essay is here.

The Free State Foundation is proud to republish, courtesy of the San Diego Law Review, the very important article, "Liberty versus Property? Cracks in the Foundation of Copyright Law," by FSF Distinguished Adjunct Senior Scholar Richard A. Epstein. For many years, intellectual property has been under attack by those who argue, among other things, that its protection is inconsistent with liberty. For example, it is contended that protection of copyrights violates the free speech rights of those who wish to use copyrighted material. In this essay, Professor Epstein concedes a natural tension between liberty and property. But ultimately he rejects the position that liberty and property—including intellectual property—are at odds. He does so only after painstaking examination of the strength of the claims of both liberty and property, and there is much wisdom to be gained from Professor Epstein's intellectual discourse. Professor Epstein's full biography may be found here. The full article may be found here.

Richard A. Epstein, the James Parker Hall Distinguished Service Professor of Law at the University of Chicago, has been named a Distinguished Adjunct Senior Scholar at The Free State Foundation.  Professor Epstein will contribute occasional articles for publication by the foundation and speak at FSF events. Upon naming Professor Epstein to this position, Randolph J. May, President of the Free State Foundation, stated: "Professor Epstein is one of the most revered and accomplished law professors in the nation and, indeed, the world. His many groundbreaking articles and books have led to a much greater appreciation for the jurisprudential principles that are the foundation for free markets, protection of individual and property rights, and promotion of the rule of law. It is a distinct honor and privilege to have Richard Epstein associated with the Free State Foundation. His scholarly contributions and insights will add great value to the work we do at FSF." Read more here.

On July 19, a federal judge struck down a Maryland law that would have required Wal-Mart to spend 8 percent of its payroll on employee health care or hand the difference over to the state. In "Wal-Mart Scores a Victory," FSF Research Associate Trevor Bothwell explains why the so-called Wal-Mart bill is ill-conceived and counterproductive. Bothwell declares: "After all, it is low-skill, low-income workers who ultimately pay the greatest price--in wage cuts, shift reductions, layoffs, and even outright termination--when politicians artificially increase the cost of doing business in order to score political points."

In an op-ed published in the July 14, 2006 edition of The Gazette of Politics and Business, a leading journal of Maryland policy and politics, Free State Foundation President Randolph J. May argues that the Maryland General Assembly's rate relief plan summarily dismissing all the Maryland Public Service Commissioners is "wrong-headed". Maryland's highest court presently is considering a lawsuit filed by the PSC commissioners to enjoin the dismissal, and May explains why he hopes they prevail. In the commentary, May concludes: "It is unfortunate that Maryland's consumers face significant rate increases. One way or another, however, after a six-year legislatively imposed rate freeze, consumers ultimately are going to have to pay increased rates to cover BGE's higher wholesale energy costs. But by encouraging the view that Maryland's legal and regulatory regime is unstable and unpredictable, the long-term harm inflicted on the state's consumers may be greater than the impact from this one rate increase. Investment in new facilities and improvements in service quality will be discouraged. And, more fundamentally, by acting rashly to aggrandize its own power at the expense of the power of a co-equal branch, the legislature may have done far more lasting damage to the interest in preserving separation of powers principles that are at the heart of our democratic system of governance." Read the entire commentary here.

Randolph J. May, President of The Free State Foundation, is the co-editor of a new book, Net Neutrality or Net Neutering: Should Broadband Internet Services Be Regulated? The book is a collection of essays by well-known legal and economic scholars discussing the hot topic communications policy issue of Net Neutrality. Read more about the new book here. Net neutrality advocates urge that strict new non-discrimination mandates be imposed on broadband Internet providers. May argues that the new regulations would stifle investment in new broadband networks and retard innovation on the Internet--in other words, neuter the Net. The book presents both sides of the argument. 

Joseph diGenova, former United States Attorney for the District of Columbia, Independent Counsel, Chief Counsel and Staff Director of the Senate Rules Committee, and Administrative Assistant and Legislative Director to U.S. Senator Charles Mathias, has joined the Free State Foundation as an Adjunct Senior Fellow. Mr. diGenova, a Maryland resident and founding partner of the law firm of diGenova & Toensing, is a noted legal scholar and frequent commentator on current legal and public affairs topics. Mr. diGenova's bio is here.   

In an editorial entitled, "Bad Subsidy Call," the June 23 Wall Street Journal quotes Free State Foundation President Randolph J. May regarding the unsoundness of current "universal service" telecom subsidy policies that now add over a 10% tax to your telephone bill. Now the tax to subsidize universal service will be applied to new Internet telephone services. May was quoted in the editorial as follows: "The USF has become a tool for redistributing wealth from urban phone customers to their rural counterparts, says Randolph May, a former FCC lawyer who now heads the Free State Foundation think tank. The irony, says Mr. May, "is that the subsidies tend to flow from more densely populated areas like New York or Baltimore to less densely populated areas. So, in effect, you've got many places where poor people are subsidizing rich people in Aspen."

On June 20, Randolph J. May, Free State Foundation's President, testified at Governor Ehrlich's Veto Hearing on SB 1, the electric industry restructuring bill. In his testimony, May urged the Governor to reject the bill in light of the provision that would terminate all of the current PSC commissioners and replace them with commissioners from a short list put forward by the Senate and House legislative leaders. According to May, the legislature's course will encourage the view that the legal regime and regulatory environment are unstable and unpredictable and not conducive to fostering long term investment and innovation. In sum, May concluded: "Reform of the PSC warrants serious consideration. But it is far more consistent with accepted notions of a government of separated and diffused powers—one in which no branch aggrandizes its own power at the expense of the power of a co-equal branch—for the PSC to be reformed in a way that increases the governor's appointment and removal authority over the agency's commissioners, and, therefore, the governor's accountability for the agency's policymaking actions. Because SB 1's approach is in the opposite direction, it should be rejected."

In "Watch Out We Don't Neuter The Net," published on CNET on June 1 by Randolph May, President of the Free State Foundation, explains that, "in a world of mandated neutrality, the uncertainty and expense of ongoing litigation, coupled with the inability of network operators to enter into business arrangements that enhance demand by differentiating their offerings, will stifle innovation and investment."

Randolph May, President of the Free State Foundation, published this op-ed, entitled "Bygone Should Stay Gone" in the Sunday, March 26 edition of the Washington Post.Randolph May testified before the U. S. House of Representatives Energy and Commerce Committee concerning reform of our communications laws and proper federal-state relationships for communications policy. His congressional testimony is here.