Republican senators are watching closely to see how the FTC and state enforcers apply antitrust standards to digital platforms in lawsuits against Facebook (see 2012090062). Some senators offered skepticism in interviews about a potential Facebook breakup and the forced sale of WhatsApp and Instagram, as requested by the FTC. The agency is in a far different position than when it allowed the Instagram and WhatsApp deals, legal experts told us, while drawing comparisons to the Microsoft case in the 1990s.
Section 230
FCC Chairman Ajit Pai is thought unlikely to press forward on a declaratory ruling on Communications Decency Act Section 230, industry and agency officials said, though FCC Democrats are watching closely. Commissioner Brendan Carr urged limited action Thursday (see 2012100074). Nathan Simington was picked as the next Republican commissioner largely because of his stance on Section 230. But for Pai, the downside would likely outweigh the benefits of acting, officials said.
Commissioner Brendan Carr supported quick FCC action providing clarity on Communications Decency Act Section 230, in a news conference after the commissioners' meeting Thursday. While a rulemaking proceeding couldn’t be completed while Republicans still control the FCC, the agency will be under Republican control through Jan. 20. The Senate approved Republican Nathan Simington Tuesday, largely based on his stance on the issue (see 2012080067). A deadlocked 2-2 FCC would be unlikely to overturn a late declaratory ruling, industry experts said. “I would certainly welcome the commission moving forward on Section 230 reform,” Carr said. “The debate about whether there should be reforms of Section 230, whether the status quo has it exactly right, that debate is effectively over,” he said: “There is now bipartisan agreement, broad and deep, that the status quo isn’t working.” The big question is when speech is taken down by a platform pursuant to First Amendment rights, “does that takedown fall within the extra protections you get with 230 or not?” he said. “That’s a question that’s a narrow one” and one “the FCC can and should address.” The focus should be on 230(c)(2), which covers civil liability, rather than (c)(1), which covers the treatment of a publisher or speaker, he said. The FCC shouldn’t be “the speech police,” he said. “I don’t see a path to the FCC forcing people to carry speech.” Carr cited a series of tweets from TechFreedom Senior Fellow Berin Szoka on an interpretive order as a likely path to FCC action before Chairman Ajit Pai leaves. The FCC and Democratic commissioners didn't comment. Commissioners Jessica Rosenworcel and Geoffrey Starks have opposed FCC action. "The FCC should reject NTIA’s proposals and focus on bridging the digital divide,” Starks said in September testimony before the House Commerce Committee. Congress is exploring legislation on the liability shield (see 2012100072).
Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., withdrew his Section 230 legislation at Thursday’s markup, setting his sights on updating the tech industry’s liability shield in 2021. An amendment from Sen. Josh Hawley, R-Mo., which would establish a private right of action for individuals to sue platforms, failed 5-16 with support from one Democrat, Sen. Sheldon Whitehouse of Rhode Island.
Nathan Simington was confirmed to the FCC Tuesday after a largely muted Senate floor debate. Senate Democrats and groups opposed to Simington in the lead-up to the vote continued to raise concerns about the 2-2 commission deadlock that will result from his confirmation, once Chairman Ajit Pai leaves Jan. 20 (see 2011300032). Many also cited the FCC’s proposed proceeding on its Communications Decency Act Section 230 interpretation, a matter critics believe Simington should recuse himself from because he worked on NTIA’s petition for the rulemaking (see 2011100070).
The Senate voted 49-46 Tuesday afternoon to confirm Nathan Simington as an FCC commissioner. The vote was along party lines, as expected. His confirmation followed a largely muted Senate floor debate.
Sens. Amy Klobuchar, D-Minn., and Chuck Grassley, R-Iowa, are trying to get a bill to increase antitrust enforcer funding added to the Senate Appropriations Committee’s funding bill for FY 2021, Klobuchar told us. The Merger Filing Fee Modernization Act would update those fees for the first time since 2001. When Grassley and Klobuchar introduced the bill in June 2019, they said the fee for a “$900 million deal should not be the same as the fee for a $60 billion deal.”
If Communications Decency Act Section 230 is revised with more regulatory burden, it will entrench incumbents and result in more government involvement in communication channels, Parler Chief Policy Officer Amy Peikoff told C-SPAN's The Communicators, scheduled to have been telecast over the weekend. She dismissed concerns about hate speech and hate groups proliferating on Parler, saying the tech industry’s liability shield is working as intended. Her comments followed a Simon Wiesenthal Center report claiming the platform is attracting online extremists and harmful content.
Hill conferees’ version of the FY 2021 National Defense Authorization Act retains some modified language from separate House- and Senate-passed versions of the measure (HR-6395/S-4049) aimed at hindering Ligado’s L-band plan rollout, as expected (see 2011230063). Ligado’s supporters and opponents aren’t completely satisfied with the language, though both sides spun it as a relative win. Some also believe it’s unlikely the FCC will act soon on the Ligado approval petitions for reconsideration pending before it (see 2005210043). The FCC didn't comment.
Congress should “do away” with Communications Decency Act Section 230 but not through the FY 2021 National Defense Authorization Act, Senate Armed Services Committee Chairman Jim Inhofe, R-Okla., told reporters Wednesday. He said negotiators won’t include Section 230 language in the final bill, despite a veto threat from President Donald Trump (see 2012010064). Section 230 “has nothing to do with the military, and I agree with his sentiments we ought to do away with 230, but you can’t do it in this bill,” Inhofe said, citing it as a nonstarter for Democrats.