Contrary to expectations, FCC Chairman Ajit Pai decided not to seek action on any items at the Jan. 13 commissioners’ meeting (see 2012210051). Pai on Wednesday released a meeting agenda that lists five panels updating commissioners on various parts of the FCC’s work. The meeting will be Pai’s last as chairman. Industry officials said Pai’s strategy means he can highlight the work he has done while avoiding complaints or letters from Congress that he must stop doing anything major.
Sen. Mark Warner, D-Va., and three other senators urged the Trump administration Friday to stop using tech liability protection language akin to Communications Decency Act Section 230 in a U.S.-U.K. trade agreement and future agreements. House Consumer Protection Subcommittee Chair Jan Schakowsky, D-Ill., and Rep. Greg Steube, R-Fla., seek a wider ban on Section 230-like language in future trade agreements as part of an FY 2021 appropriations omnibus package that was under negotiation Friday. Congress was expected that night to have approved a two-day continuing resolution to continue funding the federal government while talks continue. The amendment would prevent the Office of the U.S. Trade Representative from “giving more handouts to big tech companies by blocking any Ambassador from continuing to promote this misguided and misapplied law in any future trade negotiations,” Schakowsky and Steube wrote colleagues. “Congress can and should debate about Section 230 and how it has enabled platforms to turn a blind eye as their platforms are used to facilitate discrimination, cyber-stalking, terrorism, online frauds, and more,” Warner and the other senators wrote U.S. Trade Representative Robert Lighthizer. “We urge USTR to refrain from including this provision in this and future free trade agreements until that debate has concluded.” They’re “optimistic that a new trade agreement with the United Kingdom will ensure fair, balanced, and reciprocal trade. But we want to note that we have concerns with the inclusion of safe harbor language modeled on” Section 230. “Including a safe harbor clause in any future trade agreements will further allocate more power to companies at the expense of individuals,” the senators said. The other senators signing were Richard Blumenthal, D-Conn.; Chuck Grassley, R-Iowa; and Rob Portman, R-Ohio.
Privacy rules for companies like Zoom are “becoming clearer,” though work remains, said Josh Kallmer, head-global public policy. “Privacy is an incredibly complex subject, and there are some very complex pieces of the law out there around the world and a very interesting debate happening” in the U.S., he said on C-SPAN's The Communicators. The show was to have been telecast over this weekend.
In a media market where broadcasters and MVPDs are far more regulated than booming streaming competition, Congress should consider expanding FCC forbearance authority to cover the video market including broadcasters and MVPDs, Chairman Ajit Pai told the Media Institute Tuesday. He said government should "fundamentally rethink the very concept of media ownership regulation."
Republican senators are watching closely to see how the FTC and state enforcers apply antitrust standards to digital platforms in lawsuits against Facebook (see 2012090062). Some senators offered skepticism in interviews about a potential Facebook breakup and the forced sale of WhatsApp and Instagram, as requested by the FTC. The agency is in a far different position than when it allowed the Instagram and WhatsApp deals, legal experts told us, while drawing comparisons to the Microsoft case in the 1990s.
FCC Chairman Ajit Pai is thought unlikely to press forward on a declaratory ruling on Communications Decency Act Section 230, industry and agency officials said, though FCC Democrats are watching closely. Commissioner Brendan Carr urged limited action Thursday (see 2012100074). Nathan Simington was picked as the next Republican commissioner largely because of his stance on Section 230. But for Pai, the downside would likely outweigh the benefits of acting, officials said.
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).
Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., withdrew his Section 230 legislation at Thursday’s markup, setting his sights on updating the tech industry’s liability shield in 2021. An amendment from Sen. Josh Hawley, R-Mo., which would establish a private right of action for individuals to sue platforms, failed 5-16 with support from one Democrat, Sen. Sheldon Whitehouse of Rhode Island.
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).
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.”