Commissioner Brendan Carr supported quick FCC action providing clarity on Communications Decency Act Section 230, in a news conference after the commissioners' meeting Thursday. While a rulemaking proceeding couldn’t be completed while Republicans still control the FCC, the agency will be under Republican control through Jan. 20. The Senate approved Republican Nathan Simington Tuesday, largely based on his stance on the issue (see 2012080067). A deadlocked 2-2 FCC would be unlikely to overturn a late declaratory ruling, industry experts said. “I would certainly welcome the commission moving forward on Section 230 reform,” Carr said. “The debate about whether there should be reforms of Section 230, whether the status quo has it exactly right, that debate is effectively over,” he said: “There is now bipartisan agreement, broad and deep, that the status quo isn’t working.” The big question is when speech is taken down by a platform pursuant to First Amendment rights, “does that takedown fall within the extra protections you get with 230 or not?” he said. “That’s a question that’s a narrow one” and one “the FCC can and should address.” The focus should be on 230(c)(2), which covers civil liability, rather than (c)(1), which covers the treatment of a publisher or speaker, he said. The FCC shouldn’t be “the speech police,” he said. “I don’t see a path to the FCC forcing people to carry speech.” Carr cited a series of tweets from TechFreedom Senior Fellow Berin Szoka on an interpretive order as a likely path to FCC action before Chairman Ajit Pai leaves. The FCC and Democratic commissioners didn't comment. Commissioners Jessica Rosenworcel and Geoffrey Starks have opposed FCC action. "The FCC should reject NTIA’s proposals and focus on bridging the digital divide,” Starks said in September testimony before the House Commerce Committee. Congress is exploring legislation on the liability shield (see 2012100072).
Section 230
Nathan Simington was confirmed to the FCC Tuesday after a largely muted Senate floor debate. Senate Democrats and groups opposed to Simington in the lead-up to the vote continued to raise concerns about the 2-2 commission deadlock that will result from his confirmation, once Chairman Ajit Pai leaves Jan. 20 (see 2011300032). Many also cited the FCC’s proposed proceeding on its Communications Decency Act Section 230 interpretation, a matter critics believe Simington should recuse himself from because he worked on NTIA’s petition for the rulemaking (see 2011100070).
The Senate voted 49-46 Tuesday afternoon to confirm Nathan Simington as an FCC commissioner. The vote was along party lines, as expected. His confirmation followed a largely muted Senate floor debate.
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.”
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.
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.
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).
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.
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.