FCC nominee Nathan Simington’s Senate confirmation hinges on Tuesday's elections, lawmakers and other officials told us. Many of the hurdles for his confirmation would likely clear if President Donald Trump is reelected, but his prospects will likely be greatly diminished if Democratic nominee Joe Biden wins, lobbyists said.
Section 230
Supporters and opponents of the FCC's rescinded 2015 net neutrality rules will closely watch the results of the Nov. 3 election to see what course a push for a return to that regulatory regime will take in 2021. A win by Democratic presidential nominee Joe Biden and a switch to Democratic control of both chambers in Congress is believed to provide the best chance for returning to those rules and reclassifying broadband as a Communications Act Title II service, lawmakers and communications lobbyists told us. A President Donald Trump reelection would endanger efforts to bring back the old rules, they said.
It’s encouraging that Facebook CEO Mark Zuckerberg endorsed the concept of “more specific rules” in Communications Decency Act Section 230, Senate Commerce Committee Chairman Roger Wicker, R-Miss., told us after Wednesday’s hearing. “We may be getting somewhere,” he said, though he noted it wasn’t an endorsement of the Republican bill pushing the concept (see 2009220064).
President Donald Trump’s recent actions against TikTok “certainly” gave the company “profile and visibility,” but it would have been better had that not happened, ex-CEO Kevin Mayer told the Technology Policy Institute in an interview shared Friday (see 2009280028). Profile and visibility are “usually not bad things,” he said. It's a “good enough product with a good enough team behind it and good enough technology behind it, that it would have succeeded just fine, and it was succeeding just fine without any of that.”
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.
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).
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.