Much of FCC Commissioner Brendan Carr's agenda as the agency's incoming chair doesn't require an FCC majority to move forward, New Street Research's Blair Levin noted Monday. Part of that is because Carr can get Congress to act, and some is due to the delegated authority FCC bureaus have, Levin said. Carr's efforts to investigate tech companies and amplify the voice of conservatives on social media platforms don't require a formal FCC proceeding, he said. For example, Carr can tie up Skydance's proposed Paramount purchase, which would signal other networks that unfavorable news coverage could affect M&A approvals. In addition, Carr could have the FCC general counsel issue a policy statement about Section 230 of the Communications Decency Act that eliminates the expansive immunities courts have read into the statute, Levin said. And Carr doesn't need a majority to stop work on items with which he disagrees, such as bulk billing rules, Levin said. Outgoing Chairwoman Jessica Rosenworcel "never effectively used her bully pulpit [and thus] had the least consequential term as Chair in modern FCC history," he argued. She failed on such issues as losing spectrum auction authority and not getting an extension of the affordable connectivity program, Levin said. Mentioning Levin's note during a Practising Law Institute event Tuesday, Carr said Levin would need “a food taster” at that night's FCBA annual dinner. Levin's note is a reminder that “it's all downhill from here" for his upcoming stint as chairman, Carr said. “They like you on the way in, they definitely do not on the way out, and I don't expect that pattern to be broken any time soon,” he said. Rosenworcel Chief of Staff Narda Jones said during a different PLI panel that she hadn't read Levin's essay but that her boss was proud of the FCC’s work “to reach communities and stakeholders who haven't necessarily been the focus of the commission's work before.” She pointed to the ACP, formation of the Space Bureau, maternal health mapping, and the Missing and Endangered Persons alarm code as important achievements of the Rosenworcel FCC.
Section 230
Tapped to lead the FCC during the second Trump administration (see 2411170001), FCC Commissioner Brendan Carr is expected to be as aggressive as possible on spectrum and wireless siting issues, industry experts said. During President-elect Donald Trump's first administration, then-Chairman Ajit Pai made Carr lead commissioner on wireless siting.
Snap accused the New Mexico attorney general of making false allegations against the social media platform and misrepresenting its undercover investigation into the Snapchat app in a case about children’s safety and privacy. The platform said Thursday that it filed a motion to dismiss the AG’s lawsuit on Nov. 18. “Instead of working with Snap and New Mexico’s law enforcement officials on these efforts to combat bad actors,” AG Raul Torrez (D) "has chosen to work against them,” the motion said. “The result is a highly charged, headline-grabbing lawsuit founded upon gross misrepresentations of the State’s ‘investigation,’ dubious ‘evidence’ mined from the dark web, screenshots from platforms other than Snapchat, and cherry-picked references to old features that no longer exist.” Torrez filed a suit against Snap on Sept. 4 alleging that the social media app’s design features foster sextortion, sharing of child sexual abuse materials and child sexual exploitation. The New Mexico Department of Justice conducted an undercover investigation into the social media platform, including creating a decoy account of a 14-year-old. The decoy exchanged messages with dangerous accounts, several of which attempted to coerce it into sharing child sexual abuse materials. The investigation found the app’s recommendation algorithm connected Snapchat accounts that capture, circulate and sell child sexual abuse materials, as well as a network of dark websites dedicated to sharing these materials, among other allegations. In the motion to dismiss, Snap asserts that the decoy account searched for and instigated connections with the dangerous accounts, contrary to claims that they came up as algorithmic recommendations. On these and other grounds, including violations of the First Amendment and the legal liability shield Section 230 of the Communications Decency Act, Snap seeks to dismiss the lawsuit.
Outgoing FCC Chairwoman Jessica Rosenworcel received praise from the regular commissioners at Thursday's open meeting (see 2411210006) as she announced plans for stepping down Jan. 20, the date the next presidential administration takes power. Addressing reporters, incoming FCC Chairman Brendan Carr repeatedly named "tech censorship" and the "censorship cartel" as major priorities. "Smashing this [censorship cartel] is going to be a top issue," he said.
Republican FCC Commissioner Brendan Carr swiftly pointed Sunday night and Monday to enforcing broadcasters’ “public interest obligation” and ending the commission’s “promotion of” diversity, equity and inclusion policies as key parts of his agenda once he becomes chairman Jan. 20. President-elect Donald Trump announced plans Sunday night to make Carr permanent chairman when he takes office (see 2411170001). Some congressional Democrats and public interest groups criticized Carr’s agenda, while many communications policy-focused groups quickly praised the long-expected appointment (see 2407120002).
Dismiss tech groups’ complaint against a Florida social media law “for lack of jurisdiction and failure to state a claim,” Florida Attorney General Ashley Moody (R) argued Friday at U.S. District Court for Northern Florida (docket 4:21-cv-0220). The U.S. Supreme Court in July ruled the First Amendment protects social media platforms’ ability to moderate content, sending the tech industry’s suits against Florida and Texas laws back to the lower courts (see 2407010053). The Computer & Communications Industry Association and NetChoice earlier this month submitted an amended complaint asking the district court to permanently enjoin Florida’s social media law (see 2411040033). The plaintiffs lack associational standing to advance First Amendment claims, which “require a host of factual determinations about the members and their platforms,” said Moody. In addition, the amended complaint “is a shotgun pleading,” said the Florida AG. “Plaintiffs have not stated a claim under the First Amendment, the Fourteenth Amendment, or Section 230 of the Communications Decency Act,” nor a claim for injunctive relief for their members.
The Trump administration will focus on First Amendment rights, and its agenda could include a review of the tech industry’s role in weakening those rights, FCC Commissioner Brendan Carr wrote in letters to Facebook, Google, Apple and Microsoft last week. Carr requested information that could “inform the FCC’s work to promote free speech and a diversity of viewpoints.” He noted the FCC’s role in administering the Communications Act, which includes the tech industry’s liability shield, Section 230. The statute grants tech companies benefits when it operates in “good faith,” said Carr. He’s seeking information about the industry’s relationship with NewsGuard, a tool that ranks news and information on social media sites. Carr requested the companies identify their ad and marketing partners. The companies didn’t comment Friday.
Republican FCC Commissioner Brendan Carr, an overwhelming favorite to become chairman when President-elect Donald Trump returns to office Jan. 20 (see 2411060042), said Thursday the FCC should stand down from working on controversial matters during the transition from President Joe Biden to Trump’s second term. House Commerce Committee Chair Cathy McMorris Rodgers, R-Wash., sent FCC Chairwoman Jessica Rosenworcel a “pencils down” letter Wednesday (see 2411060043). Senate Republicans will likely send Rosenworcel similar demands soon.
The 5th U.S. Circuit Court of Appeals on Thursday remanded the tech industry’s lawsuit against Texas’ social media law (see 2409260062). A three-judge panel agreed with the U.S. Supreme Court that the “record is underdeveloped,” and said the lower court must answer key questions about application of HB-20. Given NetChoice and the Computer & Communications Industry Association filed a facial challenge against all applications of the law, they have the burden of developing a “factual record” to support that request, said Thursday's opinion. Judges Edith Jones, Leslie Southwick and Andrew Oldham heard oral argument in May 2022 (see 2205090061). “Plaintiffs have not yet developed that record or proved their claims,” the court said. “Therefore, the cause is remanded for further proceedings consistent with this opinion.” The ruling lists a number of outstanding questions about whom HB-20 covers, how companies must moderate content and the impact on free expression. “Because these are fact-intensive questions that must be answered by the district court in the first instance after thorough discovery, we remand.” The panel said it expects the district court to also “thoroughly” address questions about Section 230 of the Communications Decency Act and Texas’ argument that the tech industry’s position on free speech is inconsistent with its views on the liability shield. The Supreme Court remanded the case to the 5th Circuit in July (see 2407010053). CCIA Chief of Staff Stephanie Joyce said in a statement: "CCIA looks forward to further proving in court that Texas HB20 violates the First Amendment." The office for Texas Attorney General Ken Paxton (R) didn’t comment.
Digital First Project Executive Director Nathan Leamer on Wednesday said whoever chairs the FCC during the next administration should take on a more forceful role in advocating for Congress to renew the commission’s lapsed spectrum auction authority. Leamer, who served as an aide to former FCC Chairman Ajit Pai, said during a Georgetown University Center for Business and Public Policy webcast that whichever party wins the White House Nov. 5 will reexamine broadband affordability issues. He believes the FCC will have to brace for the impact of potential federal court rulings striking down its recent orders reclassifying broadband as a Communications Act Title II service and instituting anti-digital discrimination rules.