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.”
Section 230
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.
Senate Republican leaders are eyeing a floor vote as soon as next week to confirm FCC nominee Nathan Simington, setting up what’s likely to be a partisan showdown over the prospect of a 2-2 commission deadlock at the start of President-elect Joe Biden's incoming administration. The Commerce Committee advanced Simington Wednesday, as expected (see 2012010064), on a 14-12 party-line vote. Senate Democrats are already watching the potential implications for Biden’s pick for the party’s third FCC seat, when Chairman Ajit Pai leaves Jan. 20 (see 2011300032).
The Senate Commerce Committee appeared on track before its Wednesday meeting to advance FCC nominee Nathan Simington’s confirmation to the full chamber. That's despite continued uncertainty about whether panel member Dan Sullivan of Alaska will join other Republicans in backing the nominee. Opponents of Simington’s confirmation claim President Donald Trump picked him to displace Commissioner Mike O’Rielly because the nominee supports the push for a rulemaking on its Communications Decency Act Section 230 interpretation (see 2011100070).
Expect the FCC to allow its Communications Decency Act Section 230 rulemaking proceeding to stagnate through the transition to President-elect Joe Biden's administration, experts said in interviews. It would be unwise to move forward without a clear majority and could create unnecessary work for staff, they said.
The Senate Commerce Committee plans to vote Dec. 2 on advancing confirmation of FCC nominee Nathan Simington to the full chamber, as expected (see 2011180064). The committee’s meeting, which will also consider Assistant Secretary of Commerce nominee Daniel Huff and NASA Chief Financial Officer nominee Greg Autry, begins at 10 a.m. in 325 Russell. Simington’s responses to senators’ written questions to follow up on his confirmation hearing earlier this month are supposed to be due Dec. 8 (see 2011100070), nearly a week after the scheduled vote. Also Tuesday, Senate Commerce member Richard Blumenthal, D-Conn., tweeted that Simington “must explain himself immediately” after media reports about emails that indicate he played a far larger role than claimed in shaping NTIA’s petition to the commission seeking a rulemaking on its interpretation of Communications Decency Act Section 230 (see 2007270070). Simington in June sought to pitch Fox News’ Laura Ingraham on pushing the FCC to grant NTIA’s petition. Now-acting NTIA Administrator Adam Candeub described Simington and Carolyn Roddy, both NTIA senior advisers, as being “instrumental in drafting” the petition. President Donald Trump’s administration at one point considered naming Roddy to the FCC seat currently held by Commissioner Mike O’Rielly, before naming Simington (see 2008130056). The emails show Simington was “an active and eager soldier in” Trump’s “attempted assault on the First Amendment” via the bid for FCC intervention on Section 230, Blumenthal said. Simington “was willing to bully the very agency he’s been nominated to join in order to do the electoral bidding of the Republican party on the taxpayer dime.” Blumenthal, who already threatened to place a hold on Simington if Senate Commerce advances his confirmation, wants the nominee to “explain himself" in his responses to follow-up questions. “I certainly hope” Simington “will be more forthcoming in his written responses than he was during” that hearing, Blumenthal said. Simington said during that panel that he played a “minor role” in work on NTIA’s Section 230 petition and wouldn’t commit to recusing himself from the FCC proceeding. Simington, NTIA and the White House didn’t comment now. Concerns about FCC independence amid the nomination “are real and important,” Electronic Frontier Foundation Senior Legislative Counsel Ernesto Falcon said Monday: The Senate “should not confirm” Simington “without asking some crucial questions about whether and how he will help ensure that the FCC does the public interest job.”
Amicus briefs Monday supporting the FCC’s Supreme Court appeal of the 3rd U.S. Court of Appeals' Prometheus IV decision focused on the impact to the broadcast industry, judicial deference and Section 230 of the Communications Decency Act (see 2011170057). Amici supporting the 3rd Circuit are due Dec. 23, a week after the date for the brief from the public interest group winners from Prometheus. “Local media ownership rules must reflect the realities of the modern media marketplace,” filed network affiliate groups for Fox, CBS, ABC and NBC: “Television broadcasters cannot maintain healthy, economically viable businesses in that hyper-competitive marketplace if a single panel of the Third Circuit is allowed to continue to unfairly hamstring local journalism.” Gray Television said the 3rd Circuit’s ruling “harms small and midsized communities around the nation by depriving them of the benefits of the FCC’s modernized rules.” The court “stymied the Commission’s efforts to modernize its media ownership rules as directed by Congress,” said The Phoenix Center. “Regardless of where this Court may draw the precise line between overly deferential and unduly strict judicial review of agency actions, the Third Circuit’s decision in this case was inappropriate.” The ruling runs afoul of the First and Fifth amendments, said the Southeastern Legal Foundation. “Give the public interest standard its appropriate, narrower meaning.” TechFreedom said SCOTUS should reverse the court because the ruling hurts the system of courts deferring to agencies. When courts don’t defer to valid agency interpretations of the law, “the resulting regulatory gridlock strengthens the arguments of those judges, scholars, and experts who favor allowing less delegation by Congress and less deference to agencies,” TechFreedom said. The Americans for Prosperity Foundation argued the 3rd Circuit overreached by not following the statute, but also that FCC calls for deference are “misguided.” AFPF cited the pending FCC action on Section 230 as an example of the agency’s “problematic” interaction with judicial deference. “While the proper interpretation of Section 230 is beyond the scope of this case, AFPF wishes to alert this Court to potential collision course the FCC may be on with the U.S. Constitution and separation of powers.”
The three Republicans vying to succeed House Commerce Committee ranking member Greg Walden of Oregon told us they intend to largely maintain his approach to telecom policymaking during the next Congress, which is expected to include more debate on net neutrality. Walden announced his retirement plans last year, sparking debate about Communications Subcommittee Republicans’ future path (see 1911260048).