The Supreme Court appeared to raise questions about the future of the Chevron doctrine Wednesday, under which agencies like the FCC and FTC are afforded deference by the courts in their decisions as expert agencies. The unanimous court ruled in American Hospital Assn. v. Becerra that the Department of Health and Human Service’s decision to reduce yearly Medicare payments to hospitals as part of the 340B program was unlawful. The government raised Chevron deference, but the decision by Justice Brett Kavanaugh never addresses the doctrine. The case had been decided by the U.S. Court of Appeals for the D.C. Circuit.
Major Questions Doctrine
An Ohio bill to regulate social media companies’ alleged censorship of political views remained in committee after its sixth hearing Tuesday. The House Civil Justice Committee heard testimony but didn’t vote on HB-441, which would classify social media platforms as common carriers and allow users to sue platforms for viewpoint discrimination. Ohio Majority Floor Leader Bill Seitz (R) asked why Ohio should make a social media law when similar, court-blocked laws in Texas and Florida are pending appeal.
Senate maneuvering on newly named Supreme Court nominee Ketanji Brown Jackson, FCC nominee Gigi Sohn and FTC nominee Alvaro Bedoya is expected to draw many telecom and tech policy stakeholders’ attention in the coming weeks. President Joe Biden nominated Jackson, a U.S. Court of Appeals for the D.C. Circuit judge, Friday to replace retiring Supreme Court Justice Stephen Breyer. Jackson has little record on communications law matters but has played a larger role on administrative tech-focused legal matters, legal experts said.
Senate Commerce Committee Republicans’ questioning of Democratic FCC nominee Gigi Sohn at a planned Wednesday confirmation hearing (see 2111230066) is likely to partially focus on her views on the fairness doctrine in a bid to suggest her joining the commission would increase the chances the agency would seek to bring back the long-rescinded rules, lawmakers and officials told us. Sohn backers question the likely GOP focus on that issue, arguing that while she and others in the past preferred bringing back the rules, such erstwhile supporters see virtually no momentum in its favor under a 3-2 Democratic majority.
A Wednesday House Communications Subcommittee hearing on broadcasting and cable companies’ role in spreading disinformation focused on letters two subpanel members earlier sent to 12 major providers asking them to justify carrying Fox News, Newsmax and One America News Network, as expected (see 2102230001). Republicans said the letters (see 2102220068), from Reps. Anna Eshoo and Jerry McNerney, both D-Calif., are evidence Democrats want to punish conservative news media. Democrats emphasized they aren’t seeking new legislation to regulate the media.
The Supreme Court heard Facebook v. Duguid Tuesday (19-511), a case expected to provide long-awaited clarity on the definition of what's an automatic telephone dialing system under the Telephone Consumer Protection Act (see 2011100052). Consumer groups hope the court will do nothing to narrow the ATDS definition. In September, the administration supported Facebook. Lawyers for companies facing TCPA lawsuits hope the court will resolve a split in the federal circuits.
Any Joe Biden administration could mean major changes in how DOJ and the FTC handle antitrust matters, said current and former FTC commissioners during a Tuesday Technology Policy Institute webcast event. They suggested that what changes might occur if Democratic presidential nominee Biden wins depend on what resources and statutory changes Congress provides. Some FTC alumni commented on the DOJ Antitrust Division’s lawsuit against Google, claiming the company engages in anticompetitive behavior in its search engine business (see 2010200058).
Supreme Court Justice Ruth Bader Ginsburg's death could affect the outcome of the court's Oracle v. Google intellectual property case and be a turning point on some administrative law issues, experts told us. The federal judges most mentioned as President Donald Trump most likely choice to replace Ginsburg are considered somewhat unknown quantities on issues such as technology, media regulation and copyright.
The FCC may wait a bit before taking up any NTIA petition for rulemaking to clarify the scope of the tech industry’s liability shield (see 2005290058), observers predicted in interviews this week. The Association of National Advertisers said it’s ready to defend marketers’ interests if threatened. A tech industry representative and academics told us President Donald Trump’s executive order last week sets a dangerous precedent and could compromise independent agencies.
Tech and business groups hailed President Donald Trump’s decision postponing the fourth installment of tariffs as his administration tries to negotiate a comprehensive trade deal with China, though three existing rounds of tariffs stay as is. Bipartisan condemnation greeted Trump’s surprise announcement he will let U.S. companies resume shipments to Huawei, though the tech-equipment giant remains subject to Commerce Department export administration regulations and entity list restrictions (see 1905160081).