Stalled efforts at the FCC to deal with a looming, automatic increase in data requirements for Lifeline providers, which the agency itself said is “flawed,” could be affected by the ramped-up process to nominate a new FCC commissioner, but probably won’t, FCC and industry officials told us (see 2008240024). “There are broader issues at play” with prospective commissioner and current NTIA official Nathan Simington’s nomination, said United Church of Christ attorney Cheryl Leanza. Other industry officials noted the debate over Section 230 of the Communications Decency Act and the outcome of the presidential election as likely factors in Simington’s prospects (see 2009280038).
Section 230
FCC Chairman Ajit Pai told the Technology Policy Institute virtual conference Thursday that he's only following the advice of the Commerce Department and the FCC general counsel in proposing a rulemaking examining FCC control of internet platforms under Communications Decency Act Section 230. Pai emphasized the FCC is considering a narrow legal question. On a panel, experts said the FCC is underperforming on closing the digital divide.
Congress authorized the FCC to interpret “all provisions” of the Communications Act, including amendments, so the agency can issue a rulemaking clarifying the immunity shield’s scope, General Counsel Tom Johnson blogged Wednesday (see 2010210022). Authority originates from the “plain meaning of” Communications Act Section 201(b), “which confers on the FCC the power to issue rules necessary to carry out the provisions of the Act,” Johnson wrote. Congress inserted Section 230 into the CDA, making clear “rulemaking authority extended to the provisions of that section,” he wrote. Johnson cited Supreme Court decisions by the late Justice Antonin Scalia in AT&T v. Iowa Utilities Board in 1999 and 2013's City of Arlington v. FCC.
DOJ and 11 Republican state attorneys general sued Google Tuesday for its alleged monopoly in general search services and search advertising. Senior Vice President Kent Walker called the lawsuit “deeply flawed,” saying consumers choose to use Google, “not because they're forced to or because they can't find alternatives.” New York Attorney General Letitia James and six other Democratic state AGs announced they’re continuing a parallel investigation and could potentially consolidate the case with DOJ in coming weeks. Industry groups condemned the suit; reaction from consumer advocates varied.
Congress authorized the FCC to interpret “all provisions” of the Communications Act, including amendments like Section 230, so the agency has the authority to issue a rulemaking clarifying the immunity shield’s scope, General Counsel Tom Johnson blogged Wednesday.
The FCC doesn’t have the authority to “rewrite” Communications Decency Act Section 230, Michael Petricone, CTA senior vice president-government and regulatory affairs, said Monday. He called the rulemaking announcement (see 2010150057) disappointing. The agency lacks authority to “impose new, heavy-handed disclosure requirements on online platforms -- a fact the FCC itself recognized in 2017,” he said. House Commerce Committee Chairman Frank Pallone, D-N.J., and House Communications Subcommittee Chairman Mike Doyle, D-Pa., called the proposed rulemaking a “blatant attempt” to help President Donald Trump: “The timing and hurried nature of this decision makes clear it’s being done to influence social media companies’ behavior leading up to an election, and it is shocking to watch this supposedly independent regulatory agency jump at the opportunity to become a political appendage of President Trump’s campaign.” The commission didn’t comment.
Putting the question of broadcast ownership diversity in the hands of the Supreme Court could have consequences for minorities, said Diane Holland, aide to FCC Commissioner Geoffrey Starks, and National Association of Black-Owned Broadcasters President Jim Winston during a NABOB conference (see 2010020059) panel Friday. The matter going before “the very conservative” court could “do some damage,” Holland said. Court rulings that eliminate the FCC obligation to consider diversity or make efforts to examine the effects of the agency's decisions on diversity unconstitutional could make efforts to address ownership inequality more difficult, she said.
Facebook CEO Mark Zuckerberg, Twitter CEO Jack Dorsey and Google CEO Sundar Pichai are to testify remotely at an Oct. 28 Senate Commerce Committee hearing on Section 230, the committee announced Friday. A day earlier, FCC Chairman Ajit Pai said the agency will begin a rulemaking on Communications Decency Act Section 230 (see 2010150057). The agency will soon release a blog post about FCC authority to interpret the statute, General Counsel Tom Johnson tweeted Friday. Sen. Rick Scott, R-Fla., welcomed the FCC decision, saying the committee will get more information directly from the CEOs at the Oct. 28 hearing, set for 10 a.m. in G50 Dirksen.
The FCC’s website was down for about an hour Thursday starting soon after the 2:30 p.m. EDT release of Chairman Ajit Pai’s announcement of action to come on Communications Decency Act Section 230 (see 2010150057). Multiple users, including FCC officials, said they received only an error message when going to FCC.gov. The message said “an unexpected error had occurred." By 4:30 p.m., the site appeared to be restored. The FCC didn’t comment.
The FCC intends to move forward with a rulemaking to clarify the meaning of Communications Decency Act Section 230, Chairman Ajit Pai said Thursday (see 2010150067). He said the FCC’s general counsel told him the agency has the “legal authority to interpret Section 230.” The announcement drew backlash from Democratic commissioners and praise from NTIA and Commissioner Brendan Carr. Republicans on Capitol Hill welcomed a potential rulemaking.