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.
Section 230
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.
Several members of the Senate Commerce and Judiciary committees face tough reelection fights, elections experts told us. Most of the vulnerable lawmakers are Republicans, including Judiciary Committee Chairman Lindsey Graham of South Carolina, Judiciary Intellectual Property Subcommittee Chairman Thom Tillis of North Carolina and Commerce Security Subcommittee Chairman Dan Sullivan of Alaska. Sen. Gary Peters of Michigan is the only Democrat on either committee who faces similarly long odds. The House Commerce and Judiciary panels face far less potential turnover among incumbents seeking to return in the next Congress.
Twitter’s alleged censoring of a New York Post article on Hunter Biden is “unusual intervention that is not universally applied,” Sen. Josh Hawley, R-Mo., wrote CEO Jack Dorsey Wednesday. "I find this behavior stunning but not surprising from a platform that has censored the President of the United States,” he wrote, saying it raises questions “about the applicability” of Twitter policy. Twitter didn’t comment by our deadline. Hawley also cited Supreme Court Justice Clarence Thomas’ recent statement urging the high court to consider reviewing Communications Decency Act Section 230’s language (see 2010130044), during SCOTUS nominee Amy Coney Barrett’s Wednesday confirmation hearing session. The Senate Judiciary Committee’s hearing on Barrett, which began Monday, hasn’t touched much on telecom and tech issues. Hawley’s Section 230 citation came as a reference in a question about courts’ authority to expand statute. Hawley noted Thomas’ assertion that courts had dramatically rewritten Section 230 in decisions since 1996. Barrett noted she hadn’t ruled on any Section 230 cases but said generally she sees a “danger” in courts substituting their own judgment in place of statutory language, which would subvert “the will of the people.” Hawley said he believes that's what courts have done in the case of Section 230.
The FCC intends to move forward with a rulemaking to clarify the meaning of Communications Decency Act Section 230, Chairman Ajit Pai said Thursday. He said the FCC’s general counsel told him the agency has the “legal authority to interpret Section 230.” Pai cited bipartisan concerns about “prevailing interpretation” of Section 230 immunity, a bipartisan desire to revise the law, and Supreme Court Justice Clarence Thomas’ statement asking the high court to review the statute.
Exactly a week after the presidential and congressional elections, the government official who would replace outgoing FCC Commissioner Mike O'Rielly would get a nominations hearing. The announcement came about three hours after the agency said it would push forward on an NPRM on clarifying the meaning of Communications Decency Act Section 230, as we reported in an earlier news bulletin. O'Rielly's renomination was withdrawn after he voiced some concern about any FCC ability to reinterpret the section.
The Supreme Court declined Tuesday to hear Enigma Software v. Malwarebytes, which alleges anticompetitive behavior by a cybersecurity rival (see 2006150054). Justice Clarence Thomas issued a statement in agreement, saying the high court should consider reviewing Communications Decency Act Section 230’s language in an “appropriate case.” Malwarebytes claimed Section 230 immunity after Enigma sued. Enigma alleged Malwarebytes “engaged in anticompetitive conduct by reconfiguring its products to make it difficult for consumers to download and use Enigma products.” Thomas noted SCOTUS hasn’t interpreted Section 230 in the 24 years since its enactment: “Many courts have construed the law broadly to confer sweeping immunity on some of the largest companies.” He argued justices “should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms.” Extending the immunity “beyond the natural reading of the text can have serious consequences,” Thomas wrote. Before allowing immunity from civil claims for “knowingly hosting illegal child pornography” or “for race discrimination,” the court should “be certain that is what the law demands.” FCC Commissioner Brendan Carr said Thomas’ statement “strengthens the case for reform,” tweeting that it “explains how a couple of sweeping and questionable court decisions have expanded Big Tech’s protections far beyond the terms of Section 230 itself.” Attorneys for the companies didn’t comment.
Fox News pundit Tucker Carlson criticized what he views as Senate Republicans’ reluctance to consider FCC nominee Nathan Simington before the Nov. 3 election. President Donald Trump named Simington, an NTIA senior adviser, last month as his pick to replace Commissioner Mike O'Rielly (see 2009150074), whose term expired. Senate Commerce Committee Chairman Roger Wicker of Mississippi and other Republicans have been meeting with Simington (see 2009300022), but the committee hasn’t scheduled a hearing. “Republicans still control the Senate, so you would imagine they would be busy confirming the president’s nominees while they’re still able to” before the election, Carlson said on his Thursday TV show. “But they’re not. In some cases, they are blocking conservatives from getting appointments,” including Simington. If “you’re worried about the unchallenged power of Big Tech -- and you should be -- you ought to support Simington’s appointment” because of his involvement in writing Trump's executive order directing NTIA to petition for FCC regulations defining the scope of Communications Decency Act Section 230, Carlson said. “But Senate Republicans do not support it. They are sitting on his nomination. They are hoping instead they’ll be able to confirm” a nominee from Democratic presidential nominee Joe Biden “next year” if he wins the election. Trump “complained about this, including on Twitter” (see 2010070053), “but they’ve ignored it,” Carlson said. “Remember that next time you hear Republicans in Washington pretend that they care about free speech, pretend that they’re going to do something about the shocking abuse of the tech monopolies.”