Communications Decency Act Section 230 and similar language shouldn’t be included in trade agreements, House Commerce Committee Chairman Frank Pallone, D-N.J., and ranking member Cathy McMorris Rodgers, R-Wash., wrote U.S. Trade Representative Katherine Tai Monday. It would be “inappropriate” to export such language with ongoing policy discussions about Section 230, they wrote: “Given that our Committee closely oversees Section 230 and all portions of the Telecommunications Act of 1996, we also hope the Office of the United States Trade Representative will consult our Committee in the future in advance of negotiating on these issues.” Pallone wrote a similar letter to the Donald Trump administration with then-ranking member Greg Walden, R-Ore. (see 1908060064).
Section 230
Congress should clarify FTC Act Section 13(b) and “revive” the agency’s “ability to enjoin illegal conduct and return to consumers money they have lost,” all four commissioners wrote in a statement that acting Chairwoman Rebecca Kelly Slaughter delivered to the House Consumer Protection Subcommittee.
Representatives from Facebook, Twitter and YouTube denied their business models are based on maximizing user engagement, during a hearing Tuesday in which members of both parties raised concerns. The power of social media companies over people’s lives is “of great concern” to a wide number of legislators, Senate Privacy Subcommittee Chairman Chris Coons, D-Del., told us. “Exactly what statutory, regulatory or voluntary measures can best address it, I think it would be premature after the first hour of our first hearing to say I have an endgame in mind.”
State legislators are proposing bills to rein in social media, amid the federal debate about Communications Decency Act Section 230. Reasons and approaches differ by party. Left- and right-leaning advocacy organization officials told us they see possible constitutional problems and voiced discomfort with states acting. The Florida Senate Appropriations Committee narrowly passed a bill at a Monday hearing despite GOP and Democratic objections.
In an interview scheduled to air Saturday on C-SPAN’s The Communicators, FCC Commissioner Brendan Carr wouldn't say whether he supports acting Chairwoman Jessica Rosenworcel being nominated as the permanent chair. "I'm not sure my endorsement of a Democrat chair would help or hurt them at this point, so I'll refrain from weighing in on that," Carr said, "but it's been great having her reach across party lines and compromise." Carr said President Joe Biden's infrastructure package ignores the "billions of dollars that we already have in the pipeline to further close the digital divide." The FCC should be allowed time to disburse existing funds before additional funds are approved, he said (see 2104080059). The challenge is coordinating those efforts because "money at this point is not the problem," and it comes down to administering existing programs, Carr said. The commission's current broadband maps are also "outdated," he said, and "we can't take $100 billion without knowing where there is still a problem." Efforts to create broadband price regulation could disincentivize private investment, Carr said: "There's nothing that's going to scare those dollars away more quickly than the threat of rate regulation." There could be a lot of common ground on net neutrality if rate regulation is taken off the table, he said: "I'm still hopeful we can have an objective conversation." California's net neutrality law is "pretty remarkable," he said, and "an example of the real harms that come from those extreme approaches." Another pressing challenge is addressing the "spiraling" USF contribution factor, Carr said (see 2103230032). "I think that's an issue that is going to demand the attention of Congress in pretty short order." He also said the FCC made the "right call" in freeing up prime spectrum, and he's "very worried that there could be some backsliding with respect to those initiatives." Carr said he's still "very much open and interested" in Communications Decency Act Section 230 reform, citing Twitter's decision to block former President Donald Trump (see 2103300074). "The reasons that they articulated for kicking the president off the platform didn't really seem to line up with the actual tweets that they were referencing."
Supreme Court Justice Clarence Thomas’ views on Communications Decency Act Section 230 contradict his prior positions and threaten free speech, conservative and libertarian tech observers said in interviews. The Supreme Court dismissed a lawsuit last week claiming President Donald Trump violated the First Amendment in 2017 when he blocked users from his Twitter account (see 2003230060). The high court remanded the case to the 2nd Circuit Court of Appeals with instructions to dismiss as moot (20-197) because the former president is no longer in office.
FCC Commissioner Nathan Simington said ensuring "the highest and best" intense use of spectrum and easing the path to infrastructure investment are among his top policy priorities. During a virtual AGL event Thursday, he said shrinking guard bands could be a potentially viable route. Simington said he's "skeptical" that a nationwide fiber buildout could be accomplished at $80 billion and cautioned that a Title II regulatory approach to broadband could raise the threshold for what constitutes a viable community for a broadband provider to offer connectivity. The FCC has done "quite well" in making low- and high-band spectrum available for commercial wireless, but midband needs remain, and that spectrum has a strong ability to drive 5G updates, Simington said: The FCC has the tools to make more spectrum available for terrestrial wireless, but the most effective way to use those tools is clear and open communication with federal users. "Often it's important to not let things get too far down the road before engagement." Simington said he hasn't heard any discussions about a twilight towers agenda item, though the issue could be under study at the staff level. Asked about Communications Decency Act Section 230 action at the FCC, he said it seems clear the agency has authority to take action, but whether it should is less clear. Congress might take up Section 230 without the FCC, he said, and the agency isn't likely to move any item forward before it has a fifth commissioner. He was largely critical of municipal broadband, saying systems frequently require ongoing taxpayer subsidization. Muni broadband "has on occasion filled gaps in some areas," but it's not an effective systemic solution to unserved areas, he said. Asked who will be permanent FCC chair, Simington said he has no insider knowledge, but acting Chairwoman Jessica Rosenworcel “has been doing a fantastic job. We are transacting business at a nice brisk clip.” Aurora Insight CEO Jennifer Alvarez said this fall's 3.45-3.55 GHz band auction won't be "quite as high-priced" as the C-band auction because while both represent midband spectrum, 3.45-3.55 GHz has to be shared with incumbent users. Localities lawyer Jonathan Kramer of Telecom Law Firm said small-cell deployments are varying widely in density, with two to three per square mile in some jurisdictions and 30-plus in others. He said local governments have pressing interests in knowing the numbers, locations and designs, because they are "the ones who will live with these things the next 30, 40 years."
FCC Commissioner Brendan Carr asked whether state laws on online content moderation could open the door to weakening Communications Decency Act Section 230 immunity. Moderating a New Civil Liberties Alliance discussion Tuesday, Carr noted laws in Florida and potentially in Texas provide speech protections that might override 230.
Democrats are eager to leverage their newfound unified control of Congress to advance their preferred form of net neutrality legislation, after more than a decade in which conditions in one or both chambers inhibited their path. Some advocates believe lawmakers should move beyond simply codifying FCC-rescinded 2015 rules into statute. Opponents of bringing back those rules believe Democrats’ narrow margins in both chambers preclude them from enacting a measure during this Congress.
The Biden-era FCC has a "seemingly endless list" of issues to be addressed, blogged former FCC Chairman Tom Wheeler Thursday. The USF contribution factor has spiraled to "an unacceptable rate that now threatens the entire program," Wheeler said, and the FCC under then-President Donald Trump "failed to take any action." Wheeler criticized former Chairman Ajit Pai for waiting until his final days in office to suggest a solution and not acting sooner. A "logical solution," Wheeler said, "would have been to seek congressional help" or expand the contribution base to include broadband. The Trump-era FCC punted on further defining broadband service, he said. The FCC should consider reinstating net neutrality rules if it also wants to reinstate privacy protections for network users, he said, because "returning ISPs to common carrier status ... triggers their responsibility to protect the privacy of their subscribers." It should reconcile with calls to repeal Communications Decency Act Section 230 and the Trump FCC having spent the past few years "assiduously cutting the agency's authority" and "swiftly expanding that authority into previously untouched areas that probably infringe" on First Amendment protections, Wheeler said. The Supreme Court's Chevron doctrine will likely play a role in how the FCC practices administrative law amid speculation that justices appointed by Trump "may seek to overturn the Chevron precedent," Wheeler noted. The Biden FCC should decide whether to work closely with DOJ, as it did during the Obama administration, in reviewing transactions, Wheeler said, because "that cooperation became more of an exception than the rule" under Trump. It will also have to "catch up" on addressing the needs of deaf and hard of hearing individuals. To achieve anything, Biden must nominate a new commissioner and decide whether to reappoint acting Chairwoman Jessica Rosenworcel, whose term expired in June 2020, Wheeler said. Pai declined to comment. The FCC didn't respond.