The Senate confirmed Howard Lutnick as commerce secretary Tuesday night on a 51-45 party-line vote. Senate Commerce Chairman Ted Cruz, R-Texas, hailed the vote, as did several communications sector groups, including CTIA, NTCA, USTelecom and the Wireless Infrastructure Association. Senate Commerce Committee ranking member Maria Cantwell, D-Wash., opposed Lutnick on the floor, citing concerns that he “would not commit” during his confirmation hearing “to standing by” Commerce Department commitments for disbursing Chips and Science Act funding (see 2501290047). Other Senate Commerce Democrats objected to Lutnick because he refused to say he would defy a potential directive from President Donald Trump to halt or alter distribution of $42.5 billion in BEAD funding and wouldn't commit that NTIA would maintain its approval of jurisdictions’ plans for that money. House Commerce Committee Chairman Brett Guthrie, R-Ky., said Lutnick “is the right person to run the Commerce Department” as it “plays a central role in promoting American leadership in AI and other cutting-edge technologies, along with closing the digital divide and utilizing the full range of communications technologies.”

The National Federation of Independent Business’ Small Business Legal Center joined Consumers’ Research in asking the U.S. Supreme Court to reject how the FCC handles USF. FCC v. Consumers' Research, which SCOTUS will hear March 26, challenges the 5th U.S. Circuit Court of Appeals’ 9-7 en banc decision invalidating how the USF program is funded (see 2501090045).

CTIA, NCTA and USTelecom on Wednesday asked the FCC to reconsider a January declaratory ruling by the FCC in response to the Salt Typhoon cyberattacks, which now-FCC Chairman Brendan Carr had opposed (see 2501160041). The ruling concluded that Section 105 of the Communications Assistance for Law Enforcement Act (CALEA) “affirmatively requires telecommunications carriers to secure their networks from unlawful access or interception of communications.” An accompanying NPRM seeks comment “on ways to strengthen the cybersecurity posture of our nation’s communications systems and services.” Members of the associations “were early adopters of cybersecurity risk management practices, collaborate on these issues with government agencies, and participate in public-private partnerships,” said a petition for reconsideration in docket 22-329. The ruling, “adopted in the waning days of the prior administration without any opportunity for public comment, supplants this longstanding collaborative approach,” the groups said. It also established “an ‘uncoordinated … and counterproductive’ policy based on an expansive reading” of CALEA “that imposes onerous network-wide duties on covered entities.” The ruling is inconsistent “with CALEA’s text, structure, and purpose,” they said: “Congress did not intend for CALEA to evolve into a general cybersecurity statute over three decades after its enactment.”

The 4th U.S. Circuit Court of Appeals' 2024 decision that Cox Communications was liable for contributory copyright infringement "poses an existential threat" to federal efforts to close the digital divide, USTelecom told DOJ's Solicitor General's Office last week. In a letter Friday, USTelecom urged the solicitor general to file a brief with the U.S. Supreme Court, asking it to grant Cox Communications' cert petition that seeks to reverse the appellate court decision. In addition, USTelecom said the 4th Circuit decision serves as "a direct threat to the internet service providers investing in and building broadband networks" to close the digital divide. Broadband providers "focus on connecting customers to the internet; they do nothing to encourage, nor do they benefit from, rogue users’ infringement of content owners’ copyrights." Music labels suing Cox "wish to turn broadband providers into their own internet content police." Moreover, it said, copyright holders' threats of massive lawsuits for not terminating internet access "are chilling." Absent a reversal of the 4th Circuit decision, "broadband providers have no choice but strict adherence to content owners’ increasingly draconian demands, taking thousands of households and businesses offline or otherwise face crushing liability."

Senate Commerce Committee Democrats are already signaling that they're unlikely to give new NTIA administrator pick Arielle Roth a free pass through her confirmation process, particularly given their amplified doubts about how the agency-administered, $42.5 billion BEAD program will fare under Howard Lutnick, the commerce secretary nominee (see 2501290047). Several Senate Commerce Democrats are likely to vote against Lutnick at a Wednesday panel meeting, but lobbyists told us he is all but certain to advance to the floor with unified GOP support.

If the U.S. Supreme Court uses the FCC USF case as a route for establishing a judicial test about the nondelegation of power, that test should consider the nature of the power being delegated, legal academics say. A Federalist Society panel discussion about the 5th U.S. Circuit Court of Appeals’ 9-7 en banc decision invalidating part of the USF program and subsequent SCOTUS appeal (see 2411220050) saw speakers discussing how courts have looked at Congress' delegation of its powers to other branches or agencies and the high court's available options.

AT&T CEO John Stankey said Monday the carrier will move aggressively to shutter more of its legacy copper network in coming months, filing applications at the FCC to stop selling legacy products in about 1,300 wire centers. That is about a quarter of AT&T’s footprint, officials said on a call discussing Q4 results. AT&T also announced that its growth is continuing, with 482,000 postpaid phone subscription net adds in the quarter and 307,000 AT&T Fiber adds.

USTelecom urged legislative action to shore up lawmakers’ mandate for the USF amid the “existential threat” posed by the 5th U.S. Circuit Court of Appeals’ 2024 en banc decision that the program’s contribution factor is unconstitutional (see 2407240043). The U.S. Supreme Court is reviewing the 5th Circuit’s ruling (see 2501170046). In an open letter Friday, USTelecom said Congress should “reaffirm” its bipartisan will to maintain USF “and reform how the program is funded.” It added, “Reform must begin by requiring Big Tech companies that benefit massively from universal connectivity to join in contributing to this vital national commitment.” Some lawmakers and other observers believe Senate Commerce Committee Chairman Ted Cruz, R-Texas, may move Congress’ USF revamp toward making the program subject to the federal appropriations process (see 2411270060). In addition, USTelecom said NTIA, under President Donald Trump, “should roll back rate regulation and other requirements” for the $42.5 billion BEAD program “that Congress never asked for, while retaining a significant role for fiber, the high-speed broadband gold standard.” Removing BEAD requirements Congress didn’t mandate in the 2021 Infrastructure Investment and Jobs Act “would shed the unwanted baggage and accelerate what matters most -- getting the work of connecting everyone done,” USTelecom said. “Restoring a tight focus on the mission -- broadband deployment – can dramatically accelerate efforts to fill gaps in high-speed service, helping unlock economic opportunities and access to innovation throughout” the country. USTelecom also urged lawmakers to “move again” on the American Broadband Deployment Act permitting package that the House Commerce Committee approved in 2023 (see 2305240069). The measure, which groups together more than 20 GOP-led connectivity permitting bills, drew unanimous opposition from House Commerce Democrats, and local government groups continued lobbying against it last year (see 2409180052). “Congress should green light speeding up approvals for more broadband projects on federal lands,” USTelecom said: “With a third of our nation’s land under federal control, federal permitting reform would provide an immediate adrenaline shot to the capacity, sophistication, reach and security of our nation’s information infrastructure.”

President-elect Donald Trump said Thursday he plans to nominate Senate Armed Services Committee Republican staffer Olivia Trusty to the FCC seat that current Chairwoman Jessica Rosenworcel will vacate Jan. 20. Multiple former FCC officials and communications sector lobbyists told us they expected Trump would also announce as soon as Thursday that Senate Commerce Committee Republican Telecom Policy Director Arielle Roth is his pick for NTIA administrator. A range of ex-FCC officials and other observers previously named Trusty and Roth as top contenders for the Rosenworcel seat, although some believed Roth’s ties to Senate Commerce Chairman Ted Cruz, R-Texas, made her a slight front-runner (see 2412110046).

NTCA joined other industry groups in opposing a Fine Point Technologies' request (see 2411270048) that the FCC launch a rulemaking on standardized broadband speed testing protocols. USTelecom, NCTA and the Wireless ISP Association opposed the ask in initial comments last month (see 2412300034). “The final performance testing rules recognize the diversity of the marketplace and accordingly permit covered providers to select pathways toward performance measurements that best meet the individual needs of the company, whether based on company size, technology specifications, or other considerations as may be relevant to the provider,” NTCA said in reply comments this week in RM-11991. “The Petition’s request to impose ‘standardized broadband speed testing protocols’ is unnecessary and would moreover introduce vast and costly ramifications to a program that has demonstrated success in the half-decade since the rules were promulgated,” NTCA said.