ICLE Comments to the FCC on the State of Competition in the Communications Marketplace
I. Introduction and Overview
The International Center for Law & Economics (ICLE) submits these comments in response to the Federal Communications Commission’s (FCC) Public Notice seeking comment on the state of competition in the communications marketplace.[1] ICLE is a nonprofit, nonpartisan research center that applies law & economics methodologies to public policy. Its work promotes sound economic analysis and consumer welfare, particularly in dynamic, technology-driven markets such as telecommunications.
Competition in communications markets has never been more dynamic. The traditional service categories reflected in the Communications Act no longer map neatly onto distinct technologies or consumer use cases. As the boundaries among fixed broadband, mobile broadband, satellite, and video services continue to erode, consumers have more options than ever. A household dissatisfied with cable broadband may switch to fiber, fixed wireless, mobile service, or Low Earth orbit (LEO) satellite.[2] That substitutability constrains firms’ ability to raise prices, reduce quality, or otherwise exercise market power without competitive consequences.[3]
But convergence does not eliminate the basic economics of broadband deployment. Broadband networks require substantial upfront investments, much of which are sunk once infrastructure is deployed.[4] Providers must therefore capture enough revenue over time to justify network expansion and upgrades.[5] Competition policy that focuses only on maximizing the number of firms in a market risks undermining the investment needed to support next-generation applications such as artificial intelligence (AI), augmented reality (AR), and virtual reality (VR). The FCC should instead promote sustainable competition by lowering deployment costs, streamlining permitting, and applying merger policy that weighs investment benefits alongside potential competitive harms, while avoiding conditions unrelated to genuine transaction-specific concerns.
The FCC should bring the same holistic approach to video markets.[6] Technological change has disrupted the assumptions underlying broadcast ownership rules, retransmission consent, content regulation, and sports-distribution policy.[7] Traditional broadcasters increasingly compete with streaming platforms, social media companies, and digital-video providers that face different and often lighter regulatory burdens. ICLE has long supported reforms to media-ownership and broadcast-content rules,[8] but those reforms should not proceed in isolation.[9] Legacy retransmission-consent rules can distort bargaining, raise costs for multichannel video programming distributors (MVPDs), and amplify broadcaster leverage in ways that may not benefit consumers. At the same time, the FCC should recognize the limits of its authority over non-broadcast streaming platforms and private sports-distribution agreements.[10]
As traditionally distinct services converge into a broader communications marketplace, the FCC should avoid regulatory frameworks that treat functionally competing technologies differently. The agency’s guiding principle should be to reduce regulatory distortions, preserve investment incentives, and allow competition—not legacy silos—to discipline communications markets.
II. Convergence and Competition in Communications Markets
At the outset, the FCC should evaluate competition in a holistic manner. The Public Notice seeks comment on competition across a variety of communications markets, but framing those markets as distinct silos—such as fixed, mobile, and satellite broadband—fails to account for the increasingly dynamic and converged nature of communications technologies.[11] As substitutability across technologies grows, traditional market boundaries become less economically meaningful.
The FCC should instead focus on the capabilities consumers seek and the range of technologies capable of providing them. That approach would better capture the competitive constraints firms actually face, allow the agency to assess market power more accurately, and improve its evaluation of how competition affects consumers, pricing, innovation, and network investment.
A. Substitutability Defines Communications Markets
Communications technologies are increasingly substitutable, and that substitutability defines the markets in which firms actually compete.[12] Products are substitutes when consumers can switch between them in response to changes in price or quality. The easier that switch becomes, the greater the competitive pressure firms exert on one another.[13] Near-perfect substitutes create intense price competition because consumers will quickly defect if one provider raises prices or degrades service. Weaker substitutes impose less competitive discipline.
Substitutability is therefore central to market definition and the assessment of market power.[14] Regulators commonly use tools such as the SSNIP (small but significant non-transitory increase in price) test to determine whether enough consumers would switch to alternatives to render a price increase unprofitable.[15] Where consumers lack meaningful substitutes, a firm may be able to raise prices or reduce quality without losing substantial market share.
Substitutability analysis also helps identify the most likely sources of competitive disruption.[16] Incumbent firms are often displaced not by traditional rivals within the same market, but by substitute products emerging from adjacent technologies or industries.[17]
B. Technological Convergence Is Reshaping Communications Markets
The Communications Act treats communications technologies as distinct silos, each with its own infrastructure, customer base, and competitive logic.[18] That framework made sense when technologies such as cable broadband, mobile service, home telephony, and dial-up internet served clearly differentiated functions. In 2005, for example, consumers did not meaningfully view a cellular data plan as a substitute for a home coaxial broadband connection. The products differed substantially in price, performance, and use case, and households often purchased them for entirely separate purposes.
Technological convergence has eroded those distinctions. As network capabilities increasingly overlap, consumers can now substitute among communications technologies in ways that were previously impractical. Consumers increasingly expect ubiquitous, high-quality connectivity, regardless of the underlying technology. As a result, the traditional boundaries between fixed and mobile broadband—and among fixed broadband technologies themselves—are breaking down and reshaping competition across communications markets.[19]
The most significant example is the collapse of the traditional distinction between fixed and mobile broadband. For years, mobile service complemented fixed home broadband by providing connectivity outside the home, while consumers relied on home Wi-Fi for bandwidth-intensive applications.[20] That relationship reflected the technical limitations of earlier mobile networks, including higher latency, data caps, and lower throughput, which made them poor substitutes for cable or fiber connections.
That is no longer true. Fifth-generation (5G) wireless networks increasingly provide functionally comparable services both inside and outside the home.[21] Fixed wireless access (FWA) delivers home broadband using cellular spectrum rather than a traditional last-mile wireline connection, and its performance increasingly competes directly with cable and fiber offerings. At the same time, wireline broadband providers have entered mobile markets through mobile virtual network operator (MVNO) agreements and direct wireless investment, allowing cable companies and other fixed providers to compete for customers who historically purchased mobile service only from traditional wireless carriers.[22] The once-clear fixed/mobile distinction now resembles a continuum rather than a binary divide.
Convergence is also reshaping competition within fixed broadband markets themselves. Cable operators historically operated in geographically franchised territories with limited overlap and relatively little competition from alternative technologies.[23] Fiber providers increasingly compete directly within those territories by deploying networks into areas previously served by cable monopolies or duopolies.[24] Low Earth orbit (LEO) satellite broadband has likewise emerged as a credible high-speed option in many rural and remote areas that previously lacked meaningful alternatives. Together, these developments have weakened traditional geography- and technology-based market boundaries.[25]
Market evidence reflects these changes. T-Mobile’s Home Internet service, launched at scale around 2021, now serves approximately 8.5 million fixed wireless customers.[26] Investor reports indicate that many of those customers view FWA as a direct replacement for traditional coaxial broadband service.[27] Cable providers correspondingly began reporting elevated subscriber churn as FWA adoption accelerated.[28] In response, cable operators expanded into wireless markets through MVNO offerings. Collectively, cable providers now account for roughly 45% of industry postpaid-phone net additions, while Charter and Comcast alone serve well more than 20 million mobile lines.[29] By bundling broadband and wireless service at aggressive prices, cable providers increasingly compete for revenue streams that historically belonged to wireless carriers.
These developments make silo-based market definitions increasingly difficult to sustain.[30] If a cable customer facing a price increase can credibly switch to FWA, fiber, or LEO satellite broadband, those technologies all belong within the same competitive framework. Increasing substitutability across communications technologies constrains providers’ pricing power more than traditional market definitions often recognize. As convergence accelerates, firms increasingly compete through integrated, multi-product offerings that combine broadband, wireless, and related services to retain customers and preserve margins in a more competitive environment.
C. Substitutability Is Constraining Market Power
The FCC’s competition framework seeks to “foster innovation and offer consumers reliable, meaningful selections in affordable services” by removing regulatory, economic, and operational barriers to entry and deployment.[31] In the past, however, the FCC has sometimes relied on flawed competitive analysis to justify broad regulatory interventions ostensibly designed to promote competition, most notably network-neutrality regulations.[32]
The traditional concern underlying those interventions is familiar: consumers in many broadband markets historically faced limited provider choice, allowing incumbents to extract monopoly or near-monopoly rents.[33] That concern retains some force in the most concentrated markets, particularly in certain rural and tribal areas. But the competitive dynamics discussed above increasingly constrain even dominant local providers. When cable operators know consumers can credibly switch to FWA, fiber, or other alternatives, their ability to raise prices or degrade quality without consequence narrows considerably.
Importantly, this competitive discipline operates through the threat of switching as much as through actual switching.[34] A cable provider need not lose millions of subscribers before adjusting its behavior. The credible possibility of subscriber loss can itself constrain pricing and service-quality decisions.[35] Even a relatively small group of price-sensitive consumers can discipline firm behavior across the broader customer base because providers generally cannot distinguish perfectly between consumers who would switch and those who would not.[36]
These competitive pressures increasingly shape market outcomes. Broadband providers operating in markets with meaningful cross-technology competition tend to raise prices more slowly, offer more aggressive promotional discounts, and invest more heavily in network quality than providers facing weaker competitive constraints.[37] Cable operators, for example, have moderated broadband price increases and accelerated network upgrades in response to growing competition from FWA and fiber providers.[38] Potential LEO satellite competition in rural markets has similarly pressured incumbent providers to improve service quality and pricing in areas where they previously faced limited competitive discipline.[39]
The rapid pace of broadband-network improvement reflects these competitive realities. Cable providers have accelerated Data Over Cable Service Interface Specification (DOCSIS) upgrades, fiber deployment has expanded beyond the most densely populated markets, and FWA performance has improved dramatically in speed and capacity. These developments are at least partly attributable to the growing availability of credible substitutes across technologies. Providers increasingly cannot afford to allow their networks to stagnate.[40] As a result, inflation-adjusted broadband prices have declined over time even as service quality and network performance have improved.[41]
III. Broadband Competition Depends on Sustainable Investment
The FCC should avoid policies aimed primarily at maximizing the number of firms in broadband markets. Competition is critical to improving service quality, expanding consumer choice, and constraining prices. But broadband markets are shaped by high fixed and sunk deployment costs, substantial economies of scale, and strong investment incentives that may support only a limited number of sustainable competitors.
These structural realities persist even as technological convergence expands consumer choice and intensifies competition among cable, fiber, fixed wireless, and satellite providers. The FCC should therefore focus less on firm counts and more on policies that promote sustainable competition, encourage long-term investment, reduce deployment costs, and support widespread, high-quality broadband deployment.
A. Broadband Markets Are Defined by High Fixed and Sunk Costs
Broadband deployment requires extraordinarily high fixed and sunk costs[42] Building the physical infrastructure needed to deliver high-speed internet demands substantial upfront investment in trenching, conduit, equipment, and rights-of-way—all before a provider connects a single subscriber or earns any revenue. Most of these costs are sunk: once infrastructure is deployed, providers generally cannot recover those investments by redeploying assets elsewhere.[43] Industries with high sunk costs therefore tend toward greater concentration, because the scale of investment required for entry limits the number of firms that can profitably operate in a market.[44] Broadband infrastructure fits squarely within this framework. Estimates of per-home fiber-deployment costs range from roughly $700 to $2,700, depending on population density and geography.[45]
These cost structures also generate substantial economies of scale. Because fixed costs do not vary with the number of subscribers served, a provider’s average cost declines sharply as it adds customers. Where scale economies are significant, social welfare is often maximized by a finite—and sometimes small—number of firms. Entry beyond that level may not merely prove unprofitable; it can reduce welfare by duplicating infrastructure and dissipating the revenues needed to sustain efficient networks.[46] In industries with declining average costs, market equilibrium may therefore produce either too few or too many entrants relative to the socially optimal number, depending on the balance between productive efficiencies and the “business-stealing” effect.[47]
Providers must also price broadband services to recover these substantial upfront investments over time. That cost recovery is essential to continued investment, maintenance, and network upgrades. Decisions about additional entry and service quality similarly depend on whether providers can earn sufficient returns across census blocks to justify deployment costs. As a result, the profitability of incremental deployment is highly sensitive to local demand density and competitive conditions. Where revenues are divided among multiple providers, the return on infrastructure investment may fall below the threshold necessary to justify deployment at all. These economic realities historically left many parts of the country—particularly lower-density areas—with only one or two wireline broadband providers, because the available subscriber base could not support cost recovery for additional networks.[48]
B. Convergence Reshapes Broadband Concentration
Technological convergence can expand consumer choice by allowing consumers to substitute among previously distinct products and services. But convergence does not eliminate the underlying economic constraints that shape broadband markets. Providers that invested on the assumption of a particular market share may suddenly find that new forms of competition undermine the returns needed to justify those investments. Counterintuitively, this temporary increase in competitive pressure does not necessarily increase the number of firms that can sustainably operate in the market.
The reason is straightforward: the cost structure of broadband deployment remains largely unchanged. The high fixed and sunk costs associated with building and maintaining networks do not disappear when new technologies emerge. In many cases, those costs reappear in each successive generation of infrastructure. As a result, the concentration floor imposed by sunk costs tends to persist even as technologies evolve. Convergence therefore reshuffles which firms compete more often than it changes how many firms can compete sustainably.[49]
Empirical evidence supports this conclusion. Studies of broadband entry find that the incremental competitive benefit of a fourth provider is modest at best, suggesting that broadband markets often reach competitive equilibrium well before they resemble atomistic competition.[50] Too little competition can weaken incentives to improve service and invest in network upgrades, although dominant firms may sometimes invest above competitive levels.[51] At the same time, too much fragmentation can reduce per-firm revenues below the level necessary to sustain the substantial capital expenditures required to maintain and upgrade broadband infrastructure.
These dynamics are especially important for next-generation deployment. A provider considering investment in fiber-to-the-home (FTTH), 6G wireless infrastructure, or other advanced technologies must weigh the expected return against the substantial upfront cost. In markets with intense competition and thin margins, the expected return may not justify deployment, particularly in lower-density or uncertain markets. The profitability of incremental broadband deployment is therefore highly sensitive to competitive conditions. In industries with declining average costs, unrestricted entry can deter socially valuable investment because no individual firm can capture enough of the resulting gains to justify undertaking the investment in the first place.[52]
C. Broadband Policy Should Promote Investment and Deployment
The FCC’s objective should not be to maximize the number of competitors in broadband markets. Rather, it should pursue policies that ensure competition disciplines providers, while preserving the returns necessary to sustain long-term investment in broadband infrastructure.
Broadband connectivity creates enormous social value that extends far beyond what providers recover through monthly subscription fees.[53] High-speed internet access enables remote work, telemedicine, online education, civic participation, and e-commerce.[54] These services generate substantial spillover benefits for employers, healthcare systems, schools, local economies, and consumers that broadband providers cannot fully monetize. As a result, the social value of broadband deployment systematically exceeds the private return available to network operators.[55]
That gap between social value and private return becomes even more important as technological convergence intensifies competition. Cable, fiber, fixed wireless, and satellite providers increasingly offer functionally comparable services, placing greater pressure on providers’ margins and reducing the per-subscriber revenues that ultimately fund network investment. In moderately concentrated markets, new entry can spur firms to invest and improve service quality. At some point, however, additional fragmentation can undermine investment incentives by reducing expected returns below sustainable levels. In markets where consumers can choose among multiple broadband technologies, each additional provider faces a smaller and less predictable share of the available revenue pool.
One way to mitigate this problem is to reduce deployment costs.[56] Lower costs reduce the subscriber base necessary to earn an adequate return, allowing more firms to compete sustainably. Permitting reform offers one of the clearest avenues for doing so.[57] Broadband deployment requires providers to navigate a fragmented and often unpredictable web of federal, state, and local approvals. Rights-of-way negotiations, pole-attachment disputes, zoning approvals, environmental review, and historic-preservation requirements can each add substantial delays and costs to deployment projects.[58] These delays compound the burden of sunk-cost investment by extending the period between capital outlay and revenue generation, effectively increasing deployment risk. In lower-density or economically marginal areas, those added costs can determine whether deployment proceeds at all. Streamlining approval processes would not eliminate the underlying economics of broadband deployment, but it would lower the threshold necessary to justify investment.
The FCC has already adopted reforms intended to streamline deployment. Most notably, the agency limited local governments’ ability to impose excessive rights-of-way fees and accelerated review timelines for small-cell deployment under Section 332 of the Communications Act.[59] More remains to be done, particularly through congressional action, to ensure that permitting and zoning requirements do not impose costs that lack offsetting public benefits.[60] If the FCC seeks to encourage additional broadband competition while preserving the relatively low prices consumers currently enjoy, it should continue pursuing policies that make deployment faster, less costly, and more predictable.
The FCC should likewise account for deployment incentives in merger policy. Regulators understandably focus on potential harms when broadband or wireless providers propose to merge, including the risks of higher prices, reduced output, or diminished competitive pressure. Those concerns are legitimate and warrant careful scrutiny. But merger review in communications markets should also account for the substantial procompetitive benefits that consolidation can generate in capital-intensive network industries.
Mergers can improve investment incentives by increasing scale, stabilizing revenues, and strengthening firms’ financial capacity.[61] Greater scale can reduce per-unit costs by eliminating duplicative infrastructure, administrative overhead, and network operations.[62] In industries where high fixed costs and uncertain revenues constrain deployment, these efficiencies can materially improve firms’ willingness and ability to invest in network expansion and upgrades.[63] Improved networks, in turn, place competitive pressure on rivals to invest as well, or risk losing subscribers and revenue.
Those investment effects can extend beyond broadband markets themselves. More ubiquitous high-speed connectivity supports downstream innovation by enabling new applications, services, and business models that depend on robust broadband infrastructure. Improved deployment and network quality therefore generate dynamic competitive benefits that static market-concentration metrics often fail to capture.
These realities should shape how the FCC and the Department of Justice (DOJ) evaluate mergers in broadband and wireless markets. Merger review should account not only for potential anticompetitive harms, but also for how transactions affect investment incentives within the economic structure of communications markets. Conditions imposed on transactions should remain narrowly tailored to address demonstrated, transaction-specific harms, rather than serving as vehicles for unrelated policy objectives.[64] Overbroad conditions impose real costs on merged firms, dilute the efficiencies that motivate consolidation, and may deter transactions that would otherwise generate substantial consumer benefits and expand high-quality broadband deployment.
IV. Competition and Regulatory Reform in Video Markets
Technological change is transforming not only broadband markets, but video markets as well. Broadcasters, cable providers, streaming platforms, social media companies, and other digital distributors increasingly compete for the same audiences, advertising revenues, and programming rights. Yet many legacy regulations continue to impose asymmetric burdens on certain technologies while leaving newer competitors largely unregulated.
As the FCC considers reforms to broadcast ownership rules, retransmission consent, content regulation, and sports-distribution policy, it should focus on reducing regulatory distortions that prevent firms from competing on equal terms. The FCC should seek to modernize outdated rules, narrow unnecessary content-based regulation, and avoid expanding agency authority into markets where Congress has not clearly authorized federal oversight.
A. Broadcast Ownership Rules No Longer Reflect Market Realities
The video marketplace that broadcast-ownership rules were designed to govern no longer exists. Local television stations, once presumed dominant within geographically defined markets, now compete against streaming platforms, social media companies, and digital news outlets that face no comparable restrictions on scale or reach.[65] The FCC’s national ownership cap rests on assumptions about spectrum scarcity and broadcaster market power that technological change has largely overtaken.[66]
Streaming platforms can effectively reach the entire national market, while broadcast ownership rules still limit a parent company’s reach to 39% of U.S. households. Yet broadcasters increasingly compete with those national platforms for the same audiences and advertising revenues. Modern broadcasters therefore face competitors whose scale far exceeds anything broadcasters may legally achieve under existing ownership restrictions. In many markets, broadcasters no longer possess the degree of market power the rules originally assumed.
These competitive pressures are reshaping the economics of local broadcasting in ways that undermine the traditional rationale for ownership restrictions. The decline of syndicated daytime programming has eroded the cross-subsidies that historically funded local-news operations, forcing stations into divergent strategies for survival.[67] Larger or better-capitalized stations increasingly emphasize local content as a competitive differentiator. Smaller or financially weaker stations, by contrast, often reduce or eliminate local production entirely, replacing locally produced programming with lower-cost centralized content.[68]
Under these conditions, the greatest threat to localism is not consolidation itself, but the financial deterioration of stations constrained by outdated ownership rules. Consolidation may instead preserve local journalism by generating economies of scale that make local-news production financially sustainable through shared investigative teams, weather infrastructure, production facilities, and administrative operations.
At the same time, any ownership reform must account for the retransmission-consent framework established by the Cable Television Consumer Protection and Competition Act of 1992.[69] Under that regime, broadcasters choose every three years between must-carry status and retransmission consent, which requires MVPDs to negotiate carriage rights—typically in exchange for substantial fees.[70] Retransmission revenues now approach the scale of advertising revenues and play a central role in funding broadcast operations and local news production.
But retransmission consent was designed to address a cable-distribution bottleneck that has weakened substantially in an era where broadcasters can distribute programming directly through websites, applications, and streaming platforms.[71] The result is a regulatory asymmetry: broadcasters retain regulatory negotiating advantages unavailable to most other content creators. Consolidation can magnify that leverage, potentially increasing carriage fees and encouraging distributors to drop smaller independent networks to control programming costs.[72]
This interaction between ownership restrictions and retransmission consent makes piecemeal reform problematic. Relaxing ownership caps without reforming retransmission consent could strengthen broadcasters’ bargaining leverage over MVPDs without necessarily producing offsetting consumer benefits such as lower prices, improved programming, or more reliable service. Reforming ownership rules alone would therefore risk amplifying distortions already embedded in the retransmission framework while leaving broadcasters’ regulatory advantages over streaming competitors largely intact.
The FCC should instead pursue comprehensive reform that addresses ownership restrictions and retransmission consent together.[73] The most coherent long-term solution would phase out retransmission consent entirely and treat broadcasters like other content creators, relying on copyright law and voluntary commercial agreements to govern distribution relationships.[74] Doing so would reduce the regulatory asymmetries that currently advantage broadcasters relative to streaming competitors and independent networks.
If full repeal proves politically infeasible, the FCC should at minimum pair ownership deregulation with meaningful retransmission reform. Potential reforms could include stronger good-faith bargaining requirements, limits on automatic fee-escalation clauses tied to acquisitions, and arbitration mechanisms designed to reduce consumer harm during blackout disputes involving high-value programming.[75] The FCC should seek reforms that reduce multiple distortions simultaneously, rather than replacing one set of market imbalances with another.
B. Spectrum Scarcity No Longer Justifies Broad Content Regulation
The FCC occupies a uniquely powerful position in the media landscape because its authority over broadcast licensees extends well beyond technical and engineering matters into the content broadcasters air. Unlike regulators overseeing cable networks, streaming platforms, newspapers, or social media companies, the FCC may fine broadcasters, condition license renewals, or revoke licenses under the Communications Act’s broad “public interest, convenience, and necessity” standard.[76] That authority gives the FCC leverage over broadcasters that has few parallels elsewhere in media regulation.[77]
As a result, even informal regulatory pressure can significantly influence broadcasters’ editorial decisions. When FCC officials publicly suggest that particular programming choices may create regulatory risk, broadcasters face strong incentives to alter their conduct regardless of whether any formal enforcement action is ever initiated—or would survive judicial review.[78] This practice, commonly known as jawboning, allows government officials to shape private editorial decisions through implicit or explicit threats, while avoiding the procedural and constitutional scrutiny associated with formal enforcement or rulemaking.
The constitutional justification for this content-based regulatory authority rests largely on the Supreme Court’s decisions in Red Lion Broadcasting Co. v. FCC and FCC v. Pacifica Foundation, which relied heavily on the theory of spectrum scarcity.[79] But technological developments have substantially undermined the factual assumptions underlying those decisions.[80] Broadcasters now compete in an intensely crowded media environment alongside cable networks, streaming platforms, podcasts, social media companies, and countless online-content providers. Yet broadcasters alone remain uniquely vulnerable to government pressure over lawful programming decisions because they transmit content over spectrum licensed by the FCC.
That asymmetry carries significant competitive consequences. Broadcast stations and affiliate groups must weigh editorial decisions not only against audience preferences, advertiser relationships, and market competition, but also against the potential reaction of an agency empowered to deny license renewals or initiate costly proceedings.[81] This additional layer of regulatory risk distorts editorial incentives in ways unrelated to consumer demand or effective competition in modern media markets. So long as the FCC retains broad discretionary authority over broadcast licensees under the public-interest standard, officials in any administration may face incentives to reward favored speech or pressure disfavored viewpoints.
The FCC cannot eliminate its statutory obligation to regulate broadcasters in the public interest, and its authority will likely persist so long as Red Lion and Pacifica remain binding precedent.[82] But the agency can narrow the scope of its content-based authority by repealing unnecessary speech-related regulations and constraining the use of those that Congress expressly requires. Policies such as the FCC’s news-distortion doctrine risk extending agency authority into areas involving lawful editorial judgment and protected speech. Future administrations could use such policies more aggressively or selectively.
The FCC should therefore reduce or eliminate content-based broadcast regulations wherever possible. Doing so would better align broadcast regulation with modern constitutional and technological realities while allowing broadcasters to compete more effectively on the merits against streaming, cable, and other digital-video platforms.
C. The FCC Lacks Authority to Regulate Sports Streaming
Recently, consumers and advocates have raised concerns that an increasing number of live sporting events are moving behind paywalls.[83] Much of the legal debate centers on the National Football League’s (NFL) antitrust exemption under the Sports Broadcasting Act of 1961, which allows the league to negotiate national broadcast agreements collectively.[84] Because the exemption applies only to broadcast television rights, some have questioned whether league-wide streaming agreements fall outside its protection. But the core policy concern is not fundamentally about antitrust law. Rather, it is whether consumers are losing reasonable access to live sports as distribution shifts toward subscription-based platforms. As Chairman Brendan Carr observed, “there is a point at which you sort of tip the scale, and they’ve put too many games behind aa paywall, and then that whole exemption collapses.”[85]
The marketplace underlying this debate has changed dramatically since the relevant legal frameworks were enacted. Consumers once depended on a relatively small number of local broadcast stations to access entertainment and live sports programming. Technological innovation has since transformed the distribution landscape. Cable, satellite, fiber, and streaming platforms now provide leagues and content producers with numerous pathways to reach viewers, while consumers increasingly prefer on-demand, device-agnostic viewing experiences.
Live sports remain uniquely valuable because audiences strongly prefer real-time viewing and the shared experience surrounding live events.[86] Even there, however, the distribution ecosystem has diversified substantially. Streaming platforms now compete directly with broadcasters and cable networks for sports rights in order to attract and retain subscribers.[87] Netflix and Amazon have carried NFL games on Christmas Day, Amazon holds exclusive rights to Thursday Night Football, NBCUniversal streams Premier League matches on Peacock, and Apple TV distributes Major League Soccer.[88] The market for sports distribution has therefore expanded rather than contracted.
That competition has generated substantial consumer benefits. Many consumers actively prefer streaming services because they offer greater flexibility, portability, and device compatibility.[89] Consumers can watch games from virtually any location without relying on a traditional television set or cable subscription. Streaming services also often provide lower-cost or more targeted viewing options. Consumers interested primarily in one league or sport may purchase a single subscription rather than a large cable bundle containing unwanted channels.
At the same time, MVPDs have adapted to this competitive pressure by integrating streaming services such as Disney+, Peacock, and ESPN into broader distribution packages. Those bundles often provide lower-latency video quality and simpler access than standalone streaming subscriptions.[90] Competition from streaming services has therefore forced traditional distributors to innovate, improve pricing, and enhance service quality, benefiting consumers regardless of which platform they ultimately choose.
Critics nevertheless argue that consumers are losing access to games they previously watched for free.[91] That concern is often overstated. Much of the content now distributed through streaming platforms was never previously available through free over-the-air television. The NFL’s expansion into Thursday-night games, Christmas Day programming, and international broadcasts created new inventory that historically would not have aired on local broadcast television at all.[92] Before streaming platforms acquired rights to those games, most consumers simply could not watch them.
Other leagues have followed similar models. The National Basketball Association’s (NBA) League Pass service, for example, gives fans access to out-of-market games that were historically unavailable outside a team’s local market.[93] Many streaming agreements also preserve local broadcast access for in-market consumers. The NFL, for example, continues to air 100% of games on broadcast television within participating teams’ local markets.[94] In practice, many streaming arrangements expand consumer access by making additional games available that otherwise would not have been distributed broadly.
Whatever the merits of broader policy concerns surrounding sports-fragmentation and paywalls, the FCC’s legal authority to regulate these arrangements is extremely limited.[95] The Communications Act grants the FCC authority over broadcast licensees operating under the public-interest standard, but that authority does not extend generally to streaming platforms, which operate outside the FCC’s licensing framework. Efforts to use the public-interest standard to dictate how leagues or networks allocate content between broadcast and streaming platforms would represent a substantial expansion of agency authority and would likely trigger major-questions concerns.[96]
The FCC might alternatively attempt to rely on ancillary jurisdiction under Title I of the Communications Act.[97] Courts have previously allowed the FCC to regulate certain communications technologies where doing so was ancillary to specifically delegated statutory authority.[98] In United States v. Southwestern Cable Co., for example, the Supreme Court upheld FCC regulation of cable systems because those systems directly retransmitted broadcast television signals already subject to FCC oversight.[99]
But ancillary authority remains limited and closely tied to express statutory powers.[100] In Comcast Corp. v. FCC, the D.C. Circuit rejected the FCC’s attempt to regulate broadband-network-management practices through broad assertions of ancillary jurisdiction.[101] The court emphasized that ancillary authority must remain tethered to specifically delegated statutory responsibilities and that general policy statements alone cannot create regulatory authority.[102] Without such limits, the court warned, the FCC’s jurisdiction could become effectively unbounded.[103]
That reasoning strongly constrains any effort to regulate streaming platforms’ sports-distribution agreements. Streaming services are not broadcast licensees, nor are they merely retransmitting local broadcast signals in the manner contemplated in Southwestern Cable.[104] Instead, they distribute programming through private contractual arrangements that the Communications Act nowhere authorizes the FCC to supervise, condition, or override.
Recent Supreme Court decisions further narrow the FCC’s ability to rely on expansive ancillary-authority theories. In Loper Bright Enterprises v. Raimondo,[105] the Court overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc.,[106] ending the longstanding practice of deferring to agencies’ reasonable interpretations of ambiguous statutes. Courts will now independently evaluate whether the Communications Act actually authorizes the FCC’s asserted authority.
Similarly, West Virginia v. EPA reinforced the major questions doctrine, which requires clear congressional authorization before agencies may regulate issues of major economic or political significance.[107] Nothing in the Communications Act clearly authorizes the FCC to regulate how streaming platforms, sports leagues, or other non-broadcast entities structure programming or distribution agreements.
Taken together, Loper Bright and West Virginia v. EPA make any attempt to regulate sports-streaming arrangements through ancillary jurisdiction highly vulnerable to judicial challenge. Courts are unlikely to permit the FCC to infer sweeping authority over streaming platforms and private-content agreements from broad statutory language enacted long before modern digital-video markets existed.
V. Conclusion
As the FCC evaluates the state of communications markets, it should ground any regulatory intervention in today’s economic and technological realities, not in frameworks inherited from an earlier era. Communications markets are increasingly dynamic, competitive across technological boundaries, and capable of generating substantial consumer benefits through market forces. Fixed and mobile broadband services are increasingly substitutable. Satellite, fiber, fixed wireless, and cable providers increasingly compete for the same subscribers. Streaming and broadcast video compete for the same audiences, advertising dollars, and programming rights.
These developments make outdated analytical frameworks increasingly unreliable. Market definitions built around discrete service silos, assumptions of persistent incumbent dominance, and static measures of competition often fail to capture the constraints firms actually face. Regulatory interventions based on those assumptions risk distorting markets that are already delivering lower prices, improved quality, expanded access, and greater consumer choice.
For broadband, the FCC should account for how market structure affects investment. Policies that seek to maximize the number of competitors without considering deployment economics may sacrifice the long-run network quality and coverage consumers need in pursuit of a static competition metric. The FCC’s goal should be to encourage market conditions that promote private investment while narrowing the gap between what firms can profitably deploy and what society values. That means reducing deployment costs through permitting reform, weighing investment benefits in merger review, and avoiding mandates or conditions that compress the margins needed to justify next-generation network investment.
The FCC should bring the same discipline to video markets. Broadcast ownership rules designed for an earlier media environment, retransmission-consent rules that create regulatory bargaining advantages, and broadcast-content regulations with no analog in cable, streaming, or digital media impose real costs on competition and investment. Reform should be comprehensive and evidence-based, reducing regulatory distortions across the system rather than fixing one problem while preserving adjacent distortions. Where the FCC lacks legal authority—particularly over non-broadcast streaming platforms and private content-distribution agreements—it should say so clearly and leave those policy choices to Congress, rather than stretching the Communications Act beyond what the major questions doctrine and Loper Bright permit.
Ultimately, the FCC’s most important contribution to consumer welfare is not any single intervention, but the quality and consistency of the analytical framework it applies across proceedings. Communications markets work best when policy is predictable, rewards investment, applies equivalent rules to equivalent competitors regardless of technology, and resists using regulatory leverage as a substitute for competitive discipline. ICLE urges the FCC to keep that framework at the center of its work in this proceeding.
[1] The State of Competition in the Communications Marketplace, GN Docket No. 26-78, Public Notice, DA 26-333 (Apr. 6, 2026), https://docs.fcc.gov/public/attachments/DA-26-333A1.pdf [hereinafter Public Notice].
[2] See generally Geoffrey A. Manne, Kristian Stout & Ben Sperry, A Dynamic Analysis of Broadband Competition: What Concentration Numbers Fail to Capture, Int’l Ctr. for L. & Econ. (June 2021), https://laweconcenter.org/wp-content/uploads/2021/06/A-Dynamic-Analysis-of-Broadband-Competition.pdf; Eric Fruits, Geoffrey A. Manne, Ben Sperry & Kristian Stout, Dynamic Competition in Broadband Markets: A 2024 Update, Int’l Ctr. for L. & Econ. (June 4, 2024), https://laweconcenter.org/wp-content/uploads/2024/06/Broadband-Competition-2024-Update.pdf.
[3] See Comments of the International Center for Law & Economics, Safeguarding and Securing the Open Internet, WC Docket No. 23-320, at 19 (Dec. 14, 2023), https://laweconcenter.org/resources/icle-comments-to-fcc-on-title-ii-nprm [hereinafter ICLE Title II Comments].
[4] Eric Fruits, Kristian Stout & Geoffrey A. Manne, The Economics of Broadband Data Caps and Usage-Based Pricing, Int’l Ctr. for L. & Econ. (Oct. 23, 2024), https://laweconcenter.org/resources/the-economics-of-broadband-data-caps-and-usage-based-pricing (“Indeed, these practices may help internet service providers (ISPs) to better manage network congestion, ensure fair allocation of network resources, and provide a means for ISPs to recover the large, fixed costs associated with building, maintaining, and upgrading broadband infrastructure—in part, to enable deployment of more capacity for increased data usage”).
[5] See Manne et al., supra note 2; Fruits et al., supra note 2.
[6] Eric Fruits, Geoffrey A. Manne & Kristian Stout, Broadcast Ownership, Retransmission, and the Case for Comprehensive Reform, Int’l Ctr. for L. & Econ. (Nov. 18, 2025), https://laweconcenter.org/resources/broadcast-ownership-retransmission-and-the-case-for-comprehensive-reform.
[7] Comments of the International Center for Law & Economics, 2022 Quadrennial Regulatory Review—Review of the FCC’s Broadcast Ownership Rules, MB Docket No. 22-459 (Dec. 17, 2025), https://laweconcenter.org/wp-content/uploads/2025/12/FCC-Broadcast-Ownership-NPRM-2025.pdf [hereinafter ICLE Broadcast Ownership Comments].
[8] Id.
[9] Fruits et al., supra note 6.
[10] Comments of the International Center for Law & Economics, Sports Broadcasting Practices and Marketplace Developments, MB Docket No. 26-45 (Mar. 27, 2026), https://laweconcenter.org/resources/icle-comments-to-the-fcc-on-sports-broadcasting-practices-and-marketplace-developments [hereinafter ICLE Sports Broadcasting Comments].
[11] Public Notice, supra note 1.
[12] United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 393 (1956) (“[W]here there are market alternatives that buyers may readily use for their purposes, illegal monopoly does not exist merely because the product said to be monopolized differs from others.”); Herbert Hovenkamp, Antitrust Market Definition: The Hypothetical Monopolist and Brown Shoe, U. Pa. Inst. L. & Econ. Rsch. Paper No. 24-13 (2024), https://ssrn.com/abstract=4746039.
[13] See Gregory J. Werden, Demand Elasticities in Antitrust Analysis, 66 Antitrust L.J. 363 (1998), https://gai.gmu.edu/wp-content/uploads/sites/27/2021/05/Session-5_Werden-Demand-Elasticities.pdf.
[14] Hovenkamp, supra note 12.
[15] U.S. Dep’t of Justice & Fed. Trade Comm’n, Merger Guidelines (Dec. 18, 2023), https://www.ftc.gov/system/files/ftc_gov/pdf/2023_merger_guidelines_final_12.18.2023.pdf.
[16] J. Gregory Sidak & David J. Teece, Dynamic Competition in Antitrust Law, 5 J. Competition L. & Econ. 581, 614 (2009), https://academic.oup.com/jcle/article/5/4/581/755200 (“In dynamic contexts, potential competitors can have much greater importance. What today appears merely to be a potential competitor can obliterate incumbents tomorrow in acts of Schumpeterian creative destruction. To exclude such a competitor from the boundaries of the market would clearly be a mistake”).
[17] Clayton M. Christensen, The Innovator’s Dilemma: When New Technologies Cause Great Firms to Fail (Harvard Bus. Sch. Press 1997).
[18] Communications Act of 1934, Pub. L. No. 73-416, 48 Stat. 1064 (codified as amended at 47 U.S.C. §§ 151–621); see also Comments of the International Center for Law & Economics & TechFreedom, Communications Act for the 21st Century, at 2-3 (June 2014), https://laweconcenter.org/images/articles/icletfcommsactcomments.pdf.
[19] Fruits et al., supra note 2.
[20] ICLE Title II Comments, supra note 3.
[21] Fruits et al., supra note 2.
[22] See Eric Fruits, Ben Sperry & Kristian Stout, The Competitive Effects of the Proposed Charter/Cox Transaction, Int’l Ctr. for L. & Econ. (Sept. 17, 2025), https://www.laweconcenter.org/resources/the-competitive-effects-of-the-proposed-charter-cox-transaction.
[23] Eric Fruits & Gus Hurwitz, Title II: The Model T of Broadband Regulation, Int’l Ctr. for L. & Econ. (June 2024), https://laweconcenter.org/resources/title-ii-the-model-t-of-broadband-regulation.
[24] See Fruits et al., supra note 22.
[25] See Fruits et al., supra note 2.
[26] Michelle Donegan, T-Mobile Says FWA Is Here to Stay and Eyes More Fiber M&A, Light Reading (Feb. 11, 2026), https://www.lightreading.com/5g/t-mobile-says-fwa-is-here-to-stay-and-eyes-more-fiber-m-a.
[27] Mike Dano, Here’s What’s Next for T-Mobile’s FWA Business, Light Reading (Sept. 22, 2022), https://www.lightreading.com/fixed-wireless-access/here-s-what-s-next-for-t-mobile-s-fwa.
[28] Jeff Heynen, 5G Fixed Wireless and the Threat to Cable’s US Dominance, Dell’Oro Grp. (July 31, 2023), https://www.delloro.com/5g-fixed-wireless-and-the-threat-to-cables-us-dominance.
[29] XJ Wang, The Great Convergence: The State of U.S. Wireless Competition, Light Reading (Feb. 6, 2026), https://www.lightreading.com/wireless/the-great-convergence-the-state-of-u-s-wireless-competition.
[30] See Manne et al., supra note 2.
[31] Competition, Fed. Commc’ns Comm’n, https://www.fcc.gov/general/competition (last visited May 18, 2026).
[32] See, e.g., Comments of the International Center for Law & Economics, Restoring Internet Freedom, WC Docket No. 17-108 (July 17, 2017), https://laweconcenter.org/wp-content/uploads/2017/09/icle-comments_policy_rif_nprm-final.pdf.
[33] See generally Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, 2024 Section 706 Report, GN Docket No. 22-270, 39 FCC Rcd. 3247 (2024) [hereinafter 2024 Section 706 Report].
[34] Manne et al., supra note 2, at 9.
[35] Id. at 11.
[36] Steven Salop & Joseph E. Stiglitz, Bargains and Ripoffs: A Model of Monopolistically Competitive Price Dispersion, 44 Rev. Econ. Stud. 493, 494 (1977) (“Those agents who become informed give an external economy to the uninformed; the weight of their search keeps prices lower. In fact, if there are enough informed agents, the market price will settle down to the perfectly competitive price”).
[37] See Yongmin Chen & Scott J. Savage, The Effects of Competition on the Price for Cable Modem Internet Access, 93 Rev. Econ. & Stat. 201 (2011) (finding that, in markets with low preference diversity, competition reduces prices).
[38] Sean Buckley, Comcast Maintains Focus on DOCSIS 4.0, Wireless Amidst Q4 Broadband Subscriber Loss, Lightwave Online (Jan. 30, 2024), https://www.lightwaveonline.com/home/article/55026285/comcast-maintains-focus-on-docsis-40-wireless-amidst-q4-broadband-subscriber-loss (quoting Comcast Cable CEO David Watson: “We are focused on what we can control…. That means segmenting our customer base by offering our customers the right price, including value options at different speed tiers and driving ARPU ahead in an environment where broadband subscriber growth remains challenged. And we’re doing this in the context of aggressive network upgrades and expansion”).
[39] See generally Ellis Scherer & Joe Kane, Broadband Convergence Is Creating More Competition, Info. Tech. & Innovation Found. (July 7, 2025), https://itif.org/publications/2025/07/07/broadband-convergence-is-creating-more-competition; see also LEO Policy Working Group, Low Earth Orbit Satellites: Policies to Promote Spectrum Sharing, Foster Competition, and Close Digital Divides (Oct. 2025), https://laweconcenter.org/wp-content/uploads/2025/10/Low_Earth_Orbit_Satellites_FINAL.pdf.
[40] See Fruits et al., supra note 2.
[41] Id. at 11.
[42] See Fruits et al., supra note 2; Int’l Ctr. for L. & Econ., Guiding Principles & Legislative Checklist for Broadband Subsidies (2022), https://laweconcenter.org/wp-content/uploads/2022/06/ICLE-BEAD-Checklist.pdf.
[43] Jerry A. Hausman, The Effect of Sunk Costs in Telecommunications Regulation, in Economic Policy in the Information Economy 2 (2002) (“the essence of most [telecommunications] investments is an extremely high proportion of sunk costs”); see also Eric Fruits & Geoffrey A. Manne, Quack Attack: De Facto Rate Regulation in Telecommunications, Int’l Ctr. for L. & Econ. (Mar. 30, 2023), https://laweconcenter.org/wp-content/uploads/2023/03/De-Facto-Rate-Reg-Final-1.pdf.
[44] Daniel R. Shiman, The Intuition Behind Sutton’s Theory of Endogenous Sunk Costs (Jan. 15, 2008), https://ssrn.com/abstract=1018804; John Sutton, Sunk Costs and Market Structure: Price Competition, Advertising, and the Evolution of Concentration (MIT Press 1991).
[45] Fiber Broadband Ass’n & Cartesian, Fiber Deployment Annual Report 2023 13 (Jan. 2024), https://fiberbroadband.org/wp-content/uploads/2024/01/Fiber-Deployment-Annual-Report-2023_FBA-and-Cartesian.pdf.
[46] Rabah Amir, Market Structure, Scale Economies and Industry Performance, CORE Discussion Paper No. 2003/65, at 4 (2003), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=995721 (“More precisely, we argue that the slightest amount of scale economies leads to welfare being decreasing at sufficiently high numbers of firms”).
[47] N. Gregory Mankiw & Michael D. Whinston, Free Entry and Social Inefficiency, 17 RAND J. Econ. 48 (1986).
[48] Scott Wallsten & Colleen Mallahan, Residential Broadband Competition in the United States (2013), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1684236; see also Int’l Ctr. for L. & Econ., supra note 42; Fruits et al., supra note 2.
[49] Shiman, supra note 44.
[50] Comments of the International Center for Law and Economics in Opposition to Petitions to Deny, Applications of T-Mobile US, Inc. and Sprint Corporation for Consent to Transfer Control of Licenses and Authorizations, WT Docket No. 18-197 (Sept. 17, 2018), https://laweconcenter.org/wp-content/uploads/2018/09/ICLE-Comments-TMobile-Sprint-Merger.pdf; see also Mo Xiao & Peter F. Orazem, Does the Fourth Entrant Make Any Difference?: Entry and Competition in the Early U.S. Broadband Market, 29 Int’l J. Indus. Org. 547 (2011), https://www.sciencedirect.com/science/article/abs/pii/S0167718710001384.
[51] Andrew Kearns, Does Competition from Cable Providers Spur the Deployment of Fiber? (July 27, 2023) (working paper), https://ssrn.com/abstract=4523529 (finding that “competition reduces providers’ incentive to deploy high-speed service. Specifically, I find that as a monopolist CenturyLink would deploy slightly more fiber (in place of DSL), increasing available broadband quality for approximately 12,000 households, as compared to its deployment under competition”).
[52] Mankiw & Whinston, supra note 47.
[53] Id.
[54] See generally Section 706 Report, supra note 33.
[55] Chad Syverson, Challenges to Mismeasurement Explanations for the U.S. Productivity Slowdown, 31 J. Econ. Persp. 165, 174–75 (2017).
[56] Fruits et al., supra note 2.
[57] Reply Comments of the International Center for Law & Economics, Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, WC Docket No. 17-84 (Nov. 2022), https://laweconcenter.org/resources/icle-reply-comments-on-wireline-broadband-deployment; see also Reply Comments of the International Center for Law & Economics, Build America: Eliminating Barriers to Wireless Deployments, WT Docket No. 25-276 (Jan. 12, 2026), https://laweconcenter.org/wp-content/uploads/2026/01/Build-America-Wireless-infrastructure-Comments.pdf.
[58] See, e.g., Ben Sperry & Kristian Stout, Issue Brief: Pole Attachments and Broadband Build-out, Int’l Ctr. for L. & Econ. (July 2021), https://laweconcenter.org/wp-content/uploads/2021/07/Pole-Attachment-Issue-Brief.pdf.
[59] See, e.g., Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment et al., Declaratory Ruling and Third Report and Order, WT Docket No. 17-79 et al., 33 FCC Rcd. 9088 (2018).
[60] Sperry & Stout, supra note 58 (“arguing that permitting and zoning barriers remain among the most significant and addressable impediments to broadband deployment, and that congressional action to extend FCC oversight to municipally- and co-op-owned poles would materially reduce deployment costs without offsetting public benefits”); see also Ben Sperry, Geoffrey A. Manne & Kristian Stout, The Role of Antitrust and Pole-Attachment Oversight in TVA Broadband Deployment, 29 J. Tech. L. & Pol’y 73 (2025) (documenting how the Tennessee Valley Authority allows local power companies to abuse the pole-attachment process).
[61] Fruits et al., supra note 22.
[62] See ICLE Comments to CPUC on Charter/Cox Merger, Int’l Ctr. for L. & Econ. (Feb. 24, 2026), https://laweconcenter.org/resources/icle-comments-to-cpuc-on-charter-cox-merger.
[63] Fruits et al., supra note 2, at 18 (“Because of these dynamics, mergers and increased concentration can sometimes be associated with increased investment, in that they may allow firms to achieve greater economies of scale and scope”).
[64] Comments of the International Center for Law & Economics, Delete, Delete, Delete, GN Docket No. 25-133, at 12 (Apr. 11, 2025), https://laweconcenter.org/resources/icle-comments-to-fcc-re-delete-delete-delete (“(1) directly related to mitigating specific, transaction-specific harms; (2) narrowly tailored to address those harms; and (3) limited in duration, with specific sunset provisions”).
[65] Id. at 5-6.
[66] Fruits, Manne & Stout, supra note 6, at 2-3.
[67] Id.
[68] Id. at 3-4.
[69] Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, § 6, 106 Stat. 1460, 1469–71 (1992).
[70] Fruits, Manne & Stout, supra note 6.
[71] Id. at 4-5.
[72] Id.
[73] Id. at 5-6.
[74] Id. at 6-8.
[75] Id.
[76] Nat’l Broad. Co. v. United States, 319 U.S. 190, 215-16 (1943) (holding that the FCC’s powers are “not limited to the engineering and technical aspects of regulation of radio communication” and that the Act “puts upon the Commission the burden of determining the composition of that traffic”).
[77] The Supreme Court has extended limited content authority over broadcasting under theories of ancillary jurisdiction, but that authority remains narrower than the broad public-interest standard applicable to broadcast regulation. United States v. Midwest Video Corp., 406 U.S. 649 (1972) (extending ancillary jurisdiction to cable-access requirements); FCC v. Midwest Video Corp., 440 U.S. 689 (1979) (limiting ancillary jurisdiction where cable regulation conflicted with the Communications Act’s treatment of cable as a non-common carrier).
[78] Ben Sperry, Censorship-by-Proxy: Jawboning in the Marketplace of Ideas, Int’l Ctr. for L. & Econ. (May 8, 2026), https://laweconcenter.org/wp-content/uploads/2026/05/The-New-Jawboning-The-Continued-Threat-to-Free-Speech-from-Government-Coercion-Under-the-Trump-FTC-and-FCC.pdf.
[79] Ben Sperry, First Amendment Jurisprudence Should Reflect Economic Reality: Why Red Lion and Pacifica Must Fall, Truth on the Mkt. (Oct. 14, 2025), https://truthonthemarket.com/2025/10/14/first-amendment-jurisprudence-should-reflect-economic-reality-why-red-lion-and-pacifica-must-fall.
[80] Id.
[81] Sperry, supra note 79, at 27-28.
[82] Id. (noting that courts or Congress would likely need to curb jawboning by agencies such as the FCC).
[83] Sports Broadcasting Practices and Marketplace Developments, Public Notice, MB Docket No. 26-45 (Feb. 2026) [hereinafter Sports Broadcasting Notice].
[84] Sports Broadcasting Act of 1961, Pub. L. No. 87-331, 75 Stat. 732 (1961) (codified at 15 U.S.C. §§ 1291–1295).
[85] Chantz Martin, FCC Chairman Questions NFL’s Antitrust Protection as League Shifts to Streaming Services, Fox News (Mar. 27, 2026), https://www.foxnews.com/sports/fcc-chairman-questions-nfls-antitrust-protection-league-shifts-streaming-services.
[86] ICLE Sports Broadcasting Comments, supra note 10.
[87] Id. at 5.
[88] Id.
[89] Id. at 4.
[90] Id. at 6-7.
[91] Sports Broadcasting Notice, supra note 84.
[92] ICLE Sports Broadcasting Comments, supra note 10, at 5-6.
[93] Id.
[94] Alaina Getzenberg & Kevin Seifert, Sources: DOJ Opens Antitrust Investigation of NFL over TV Deals, ESPN (Apr. 9, 2026), https://www.espn.com/nfl/story/_/id/48440303/sources-doj-opens-antitrust-investigation-nfl-tv-deals (quoting the NFL: “With over 87% of our games on free, broadcast television, including 100% of games in the markets of the competing teams, the NFL has for decades put our fans front and center in how we distribute our content. The 2025 season was our most viewed since 1989 and reflects the strength of the NFL distribution model and its wide availability to all fans.”).
[95] ICLE Sports Broadcasting Comments, supra note 10, at 9-14.
[96] The FCC would be asserting sweeping new regulatory authority under a long-extant statute, relying on a broadly worded ancillary provision, even though Congress has repeatedly declined to address the issue legislatively. Id. at 11.
[97] 47 U.S.C. § 151 (2018).
[98] Christopher J. Wright, The Scope of the FCC’s Ancillary Jurisdiction After the D.C. Circuit’s Net Neutrality Decisions, 67 Fed. Commc’ns L.J. 19 (2015).
[99] United States v. Southwestern Cable Co., 392 U.S. 157 (1968).
[100] Midwest Video, 440 U.S. 689.
[101] Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010).
[102] Id. at 653.
[103] Id. at 655.
[104] Southwestern Cable, 392 U.S. at 175-77.
[105] Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).
[106] Id.
[107] West Virginia v. EPA, 597 U.S. 697 (2022).