- What the FCC can and can’t do to Section 230
- The FCC isn’t the thought police
- Section 230 was designed to prevent FCC interference
- What happens next
- Republicans Want the FCC to Regulate . It Can’t
- What Power Does the FCC Have Over Section 230?
- The FCC Can’t Interpret Section 230 Because “Good Faith” is Not Ambiguous
- Courts Already Know What Good Faith Means
- The FCC Disclaimed Power Over Social Media Companies
- Be Careful What You Wish For
- “I bet Joe Biden wouldn’t do this”
- & Return To Capitol Hill; Internet Rules Among Issues
- First Woman To Lead FCC As Permanent Chair?
- Antitrust, Privacy Major Topics
What the FCC can and can’t do to Section 230
President Donald Trump shakes the hand of FCC Chair Ajit Pai before delivering remarks on 5G deployment in the US on April 12, 2019, in Washington, DC. Tom Brenner/Getty Images
The Trump administration is once again trying to force social media platforms to do its bidding.
This time, the Federal Communications Commission (FCC) has been tapped to use a law called Section 230 to prevent websites from moderating content in a way that many conservatives believe is biased against them.
Despite the law being designed to prevent FCC intervention — and the FCC itself using that as justification not to regulate the internet just a few years ago — it appears the agency is going to try.
This comes after Trump and many conservatives have called for and to be punished after the platforms suppressed links to the New York Post’s questionably sourced story about Hunter Biden. This prompted another all-caps demand from Trump to repeal Section 230 and the Republican-led Senate to prepare to subpoena CEO Jack Dorsey, accusing the company of election interference.
The very next day, FCC Chairman Ajit Pai announced that his agency would “move forward with a rulemaking to clarify” the meaning of Section 230, which gives internet platforms and immunity from lawsuits over content their users provide. That is to say, if someone defames you in a tweet, you can sue the user but not itself.
This 25-year-old law is what allows websites that rely on third-party content to exist at all. It also allows those sites to moderate that content as they see fit, which has been a source of ire for conservatives who believe they are being censored when bans them, demonetizes them, or appends fact-checks to their tweets.
Trump has been particularly upset about this in recent months, as platforms have cracked down on the misinformation he spreads. In May, he went so far as to issue an executive order calling for the FCC to come up with rules that would prevent websites from moderating content a perceived anti-conservative bias, which is the basis for the FCC’s actions now.
The FCC isn’t the thought police
But legal experts — former FCC commissioners and staff among them — don’t think the FCC is allowed to regulate the internet in this way.
“I don’t think the FCC has the authority to be thought police over platforms,” former FCC Chairman Tom Wheeler, Pai’s predecessor and no fan of Section 230 himself, told Recode.
Wheeler added: “The Trump administration practices government by performance. They come out and they beat their chests and they say we’re gonna do this on 230, and we’re gonna do that on the digital divide. But it’s chest-pounding, not policy. There’s a difference between showbiz and substance.”
Pai has claimed that the FCC’s general counsel, Thomas M. Johnson Jr., told him that the FCC has the legal authority to interpret Section 230. When asked to elaborate on where that legal authority comes from, FCC spokesperson Brian Hart told Recode, “We don’t have anything to add at this point.”
Johnson later issued a statement citing Section 201(b) of the Communications Act, which says that the FCC may “prescribe such rules and regulations as may be necessary in the public interest to carry out this Act.
” Many have argued that 201(b) applies only to common carriers.
And the section does, in fact, fall under Title II of the Communications Act, which is titled “Common Carriers” — defined as entities that provide “telecommunications services,” phone companies.
But Johnson’s interpretation of 201(b) is that it should apply to everything covered by the Act and that this includes social media companies. This is despite the fact that the FCC said in 2017 that it was “misguided and legally flawed” to classify broadband internet as a telecommunications service under Title II.
“201(b) is inside Title II of the Communications Act, and Pai has gone his way to say that ISPs are not subject to Title II,” Wheeler said. “If the ISPs are not subject to Title II, how in the world can you make the stretch that those that transmit over the ISPs are subject to Title II?”
Harold Feld, senior vice president at open internet advocacy group Public Knowledge, said in 2019 — when an executive order commanding the FCC to regulate Section 230 was just a rumor — that this was both a “bad idea” and that he couldn’t see any way that the FCC had the authority to do it.
“The FCC cannot rewrite acts of Congress to suit its whims,” Kate Ruane, senior legislative counsel at the American Civil Liberties Union, said in a statement. “Section 230 is critical to protecting free speech online and the FCC has no authority to change it, especially not in ways that will undermine free expression.”
Section 230 was designed to prevent FCC interference
“There’s nothing in Section 230 of the Communications Decency Act that gives the FCC authority either to interpret it or, even more importantly, set rules,” said Gigi Sohn, a distinguished fellow at the Georgetown Institute for Technology & Law Policy who was counselor to Wheeler from 2013 to 2016. “In fact, the legislative history is completely to the contrary.”
The law’s bipartisan co-authors, Sen. Ron Wyden and former Rep. Chris Cox, have said they intentionally wrote the law to prevent the FCC from having this authority in the first place.
The FCC does not have the authority to rewrite the law, and Ajit Pai can't appoint himself commissioner of the speech police. Read my comments with former-Rep. Cox on why this process is so deeply flawed. https://t.co/7JxSSKNmRR
— Ron Wyden (@RonWyden) October 15, 2020
Back in 1995, when the Communications Decency Act was being considered, there was some debate over what the FCC’s role in regulating the internet should be. Wyden and Cox thought FCC oversight would be a barrier to internet innovation and development.
As Cox said in the House at the time, Section 230 “will establish as the policy of the United States that we do not wish to have content regulation by the federal government of what is on the internet — that we do not wish to have a ‘Federal Computer Commission’ with an army of bureaucrats regulating the internet.”
He continued: “If we regulate the internet at the FCC, that will freeze or at least slow down technology. It will threaten the future of the internet.”
That’s a vision that Pai himself agreed with back in 2017, when the FCC — under his chairmanship — repealed net neutrality, citing Section 230’s provision that the United States’ policy is not to interfere with the growth of the internet with federal or state regulation as justification for taking a “light-touch approach” to “burdensome regulation that stifles innovation and deters investment.”
Because of this, Sohn said, the FCC would essentially have to reverse its own decision — one that has become emblematic of the FCC’s anti-regulatory approach under Pai and the Trump administration — in order to make the case that it has any authority over Section 230 at all.
To this argument, Johnson said in his statement that “none of these observations bear on the central question” of whether the FCC has the authority to interpret Section 230, and that doing so would not be regulation but “clarifying a legal standard.
” Johnson admitted that, while the FCC once used Section 230 to guide its actions when repealing net neutrality, it “need not rely” on it here and can instead use 201(b) as he interprets it.
Put simply, Johnson believes that the FCC can pick and choose which statute to apply and which to ignore depending on what it hopes to accomplish.
What happens next
If the FCC does decide to try to make rules for Section 230, it will need the majority of the five-person commission to agree on them. Pai is clearly in favor, and fellow commissioner Brendan Carr is, too. Democratic commissioners Geoffrey Starks and Jessica Rosenworcel are not. That leaves the fifth commissioner as the deciding vote.
Right now, that’s Republican Michael O’Rielly, who has signaled that he is not in favor of regulating Section 230 in this way. But it could soon be Nathan Simington, who Trump nominated last month to replace O’Rielly.
And Simington appears to be in favor of regulating Section 230 through the FCC, which is ly part of why Trump nominated him in the first place.
After that, it will probably take several weeks or months to issue those rules. It’s already taken nearly five months between Trump’s executive order calling for its action for the FCC to get to this point.
Depending on how the election goes, Trump may no longer be in office and the Democrats could control both branches of the legislature, in which case executive orders and FCC interpretations under the Trump administration will almost certainly come to an end.
But let’s say that Trump does win the election — what then? There’s still no guarantee that what Trump wants to happen will happen, or that it would happen anytime soon. Congress can overturn FCC rules, and it ly would if it has a Democratic majority in both houses.
While Democrats have their own problems with Section 230, those have mostly focused on eliminating immunity protections for websites that feature child sex trafficking and child sexual abuse images.
Changing Section 230’s content moderation policies has become a partisan issue — Republicans are the ones writing bill after bill opposing Section 230 and decrying perceived censorship on social media platforms — and that makes it much less ly that Democrats will pick up the Republicans’ cause.
If Congress doesn’t reject the FCC’s rules, then it’ll be up to the courts, which has become the norm for an administration that refuses to accede to laws until it absolutely has to.
A number of organizations already have sued the Trump administration over the executive order, citing First Amendment and regulatory policy violations.
And that litigation will ly come with injunctions that prevent any regulations from taking effect until the courts can rule on them.
“This is going to be tied up in litigation forever and a day,” Sohn said.
Courts have typically ruled in Section 230’s favor, but there’s at least one judge who seems to feel differently: Supreme Court Justice Clarence Thomas recently said that he thinks courts have gotten Section 230 wrong, and the protection from lawsuits its provides has been granted too liberally. But he said this in the court’s denial to hear a case about Section 230, which indicates that the majority of justices aren’t interested in reconsidering Section 230 right now.
So how ly is it that the FCC will be the one to make Trump’s dreams of an internet that doesn’t put fact-checks on his tweets come true? Not very, and certainly not anytime soon. But the administration has already gotten its way just by threatening to do so: changed its rules a few hours after Pai issued his statement. The next day, it allowed the Post story on the platform.
Open Sourced is made possible by Omidyar Network. All Open Sourced content is editorially independent and produced by our journalists.
“,”author”:”Sara Morrison”,”date_published”:”2020-10-16T21:04:59.000Z”,”lead_image_url”:”https://cdn.vox-cdn.com/thumbor/Tw6vEhjq2vyiHwpJ99sFNKxiETE=/0x0:3960×2073/fit-in/1200×630/cdn.vox-cdn.com/uploads/chorus_asset/file/21967762/GettyImages_1136489568.jpg”,”dek”:null,”next_page_url”:null,”url”:”https://www.vox.com/recode/21519337/section-230-trump-fcc—social-media-ajit-pai”,”domain”:”www.vox.com”,”excerpt”:”Trump wants the FCC to help him rewrite Section 230, the law that protects the internet as we know it. But the agency isnât that powerful.”,”word_count”:1882,”direction”:”ltr”,”total_pages”:1,”rendered_pages”:1}
Republicans Want the FCC to Regulate . It Can’t
While the internet is more complicated than a newsstand, judges try to find analogies that make sense. Source: Cubby v. Compuserve (Southern District of New York 1991) (pages 140–41) via Casetext
To understand why Congress passed Section 230, you have to look at two court cases from the early 1990s.
In the first case, Cubby v. Compuserve, a user posted defamatory statements on an online message board. When the message board was sued, the court said Compuserve was not responsible because it did not screen posts in advance and had no editorial control.
Compuserve could only be responsible if it knew that the statements were on its platform.
Source: Stratton Oakmont v. Prodigy Services (New York Supreme Court 1995) via Harvard Law
In the second case, Stratton Oakmont v. Prodigy, a court held that an online bulletin board was the “publisher” of defamation posted by a user because the board affirmatively screened offensive material.
“Actively utilizing technology and manpower to delete notes from its computer bulletin boards on the basis of offensiveness and ‘bad taste’” meant Prodigy was responsible for all content on the boards.
These cases meant that internet companies could only avoid lawsuits if they did not moderate. So Congress was worried that young children would go online and view inappropriate material.
It wrote Section 230 to overrule the Prodigy decision and encourage platforms to moderate inappropriate user content.
And largely, this has worked: as a result of Section 230, the largest technology companies are those that host user-generated material because they can moderate without being sued (e.g., , Google).
Congress writes reports on the laws it passes to explain their purpose. Here, Congress specifically says it wanted to overrule the Prodigy case. Source: Telecommunications Act of 1996, House Report 104–458 (page 194) via Congress.gov
Yet recently, we’ve seen demands that companies moderate less:
- A former-revenge-pornographer-turned-Republican-Senate-candidate sued for violating his speech rights when it banned him because he could not “respectfully share [his] views and campaign on [’s] open platform.” He lost because he sought “to treat as a publisher.”
- A nonprofit that protested treatment of religious minorities in India had its page blocked in India. The nonprofit sued for violating its civil rights and breaching its “contract” to host the page. It lost because “removing content is something publishers do.”
- A man had his videos about gay conversion therapy removed for violating Vimeo’s content guidelines. He sued Vimeo for violating his free speech rights and civil rights, arguing Vimeo “created the modern day equivalent of a town square, which provides individuals with a forum to express their ideas.” He lost because “Vimeo plainly was acting as a ‘publisher’ when it deleted (or, in other words, withdrew) Plaintiffs’ content on the Vimeo website” and the CDA prohibits lawsuits that treat platforms as publishers of third-party content.
Strangely enough, even though the CDA protects “good faith” moderation decisions, most courts avoid invoking that part of the CDA. Courts prefer to use the first part of Section 230 (that companies may choose what they publish) to quickly dismiss cases. Asking whether a moderation decision was in “good faith” requires cases to progress further to investigate the intent of the moderator.
What Power Does the FCC Have Over Section 230?
The Federal Communications Commission has broad power over communications policy and telecom companies. But even if it wanted to, it would be hard for the FCC to reinterpret Section 230 for several reasons:
- First, the FCC has no legal power to interpret any words in Section 230
- Second, courts have already interpreted what “good faith” means
- Third, the FCC disclaimed the power to regulate social media companies when it issued its net neutrality decision
The FCC Can’t Interpret Section 230 Because “Good Faith” is Not Ambiguous
When the meaning of a law is unclear, it’s the job of judges to interpret it. As the Supreme Court said in Marbury v. Madison, it is “the province and duty of the judicial department to say what the law is.”
But federal agencies have to administer various laws, and they often need to determine what a law means without going to court. Courts will follow agency interpretations if (1) the law says that the agency can interpret it, or (2) the law is unclear and the agency needs to interpret it to do its job.
Neither of those is true for Section 230. First, nothing in the actual law mentions the FCC or gives it a role to play. Instead, courts (and the FCC itself) have acknowledged that Section 230 “delegate[s] no regulatory authority” to the FCC.
When a federal agency tells a court that the law doesn’t give it power to define terms, the agency can’t change its mind several years later. Source: Mozilla v. FCC (D.C. Circuit 2019) (page 78) via Casetext
Second, not only does the FCC not need to interpret Section 230 to do its job, but the term “good faith” isn’t ambiguous. Courts already enforce an implied promise of good faith in contracts, and they require senders of copyright notices have a good faith belief the material is infringing.
Judges don’t need an agency to explain “good faith” to them.
Courts Already Know What Good Faith Means
In the context of Section 230, courts consider good faith an “absence of malice.” In Florida, a court held that Google could not delist spam websites because they hurt Google ad revenue; Google needed to honestly believe that the material was spam.
Similarly, when Google removed an Android app claiming it didn’t allow names including “spy” in their name, a court found that Google may have acted in bad faith if the claimed naming policy was “entirely pretextual.
” (Other apps used the word “spy” and weren’t removed.)
The issue of good faith even come up in one of the many lawsuits against Backpage, a website similar to Craigslist that aided sex trafficking. In one case, a judge said Backpage did not act in good faith if it “craft[ed] bad faith guidelines intended to create a plausible denial of the true nature of the services … that is, promoting prostitution or inducing sex trafficking.”
Basically, agencies can only fill in gaps in the meaning of laws where it is ambiguous. When there are already court decisions that “unambiguously foreclose the agency’s interpretation,” the agency can’t choose its own meanings. Since courts have interpreted “good faith” without difficulty over the last 20 years, the FCC cannot now redefine it.
The FCC Disclaimed Power Over Social Media Companies
The FCC’s powers originate in the Communications Act of 1934, which has multiple titles. Under Title II (page 35), the FCC has broad powers to regulate telecom companies who are “common carriers.” Common carriers are not allowed to “make or give any undue or unreasonable preference or advantage to any particular person.” Sounds net neutrality, doesn’t it?
Source: Protecting and Promoting the Open Internet (page 157) via the Federal Communications Commission
When the FCC issued its original net neutrality rules in 2015, it classified internet service providers as common carriers, preventing them from violating net neutrality principles. Common carriers are those who connect their users to points they specify, how your ISP connects you to websites you type in your browser.
Source: Restoring Internet Freedom (page 18) via Federal Communications Commission
In 2017, President Trump appointed Republican Commissioner and former Verizon lawyer, Ajit Pai, to run the FCC. Under Pai, the FCC issued an order undoing the 2015 net neutrality rules by classifying ISPs as “information services.
” Under the law, “information services” generate and provide information to customers, and the FCC has much less power to regulate them.
Ajit Pai said ISPs weren’t common carriers because you don’t specify what points to connect to, the ISP does when it converts the URL of the website you want to visit into an IP address. (This is stupid.)
The effect of this change was to treat Comcast and the same because social media companies are also information services under the law. So, if the FCC can’t regulate the “unfair” behavior of Comcast, it also lacks the power to regulate “unfair” moderation decisions by .
Perhaps fortunately for social media users, the FCC seems extremely uninterested in regulating social media companies. The FCC has five commissioners, three Republicans and two Democrats.
The Democratic commissioners have already said the idea of reinterpreting Section 230 would “not work” because it would violate the First Amendment by turning the FCC “into the President’s speech police.” One Republican commissioner, Mike O’Rielly, said this week that the FCC doesn’t have the power to reinterpret Section 230.
And as Ars Technica points out, even Chairman Ajit Pai has sounded very unenthusiastic about meddling with Section 230 and becoming the social media police. Senators may want the FCC to change Section 230, but it probably won’t.
Be Careful What You Wish For
Even if the FCC did have the power to reinterpret what “good faith” moderation is, that wouldn’t accomplish what Republicans hope.
Remember, “good faith” is only a requirement for the second half of Section 230, when a company or user “restrict[s] access to or availability of material” that is objectionable.
It isn’t a requirement for the first half, which generally says that you aren’t the publisher of speech you didn’t write. So courts would ly continue using the first part of Section 230 to decide cases, making the FCC’s change meaningless.
This is also bad policy.
Senator Ron Wyden, who wrote Section 230 when he was in the House of Representatives, has repeatedly explained that the “good faith” provisions of Section 230 are the “sword” that allow companies to take down material “that most people do not want to experience online” even if it is protected by the First Amendment.
The law is supposed to protect companies who they take down tweets glorifying white supremacy, not scare them into leaving those up. For those of us who think platforms should moderate more, making moderation legally risky would force us users to wade through more content we’d rather not see.
“I bet Joe Biden wouldn’t do this”
Trump’s challenger this November, Joe Biden, disagrees with the executive order and the idea of the FCC reinterpreting Section 230. His campaign issued a statement that internet companies should not be forced to “provide a venue for, and amplification of, the president’s falsehoods, lest they become the subject of coordinated retaliation by the federal government.”
But that doesn’t mean he s Section 230.
Instead, Joe Biden thinks that Section 230 should be revoked “immediately.” From his perspective, companies are “propagating falsehoods they know to be false,” and Biden views Section 230 as letting “write something [it] know[s] to be false and be exempt from being sued.”
Well, if you are Joe Biden and reading this piece, I have great news: they can be sued!
From Biden’s perspective, companies are “propagating falsehoods they know to be false,” and should be subject to liability as if they were publishers. Well, if you are Joe Biden and reading this piece, I have great news: they can be sued!
When internet companies knowingly participate in illegal activity, courts punish them. When victims of sex trafficking claimed that Backpage.
com was more than a passive bulletin board but instead “intentionally developed its website to require information that allows and encourages … illegal trade to occur through its website, including the illegal trafficking of underage girls,” the Washington Supreme Court said that Section 230 was not a defense.
Rather than treating Backpage as a publisher of third-party material, Backpage can be punished if it “helped develop the content of those advertisements,” which Section 230 does not protect.
Similarly, when Roommates.com was sued for posting discriminatory housing ads, a court of appeals said it could not get Section 230 immunity because the website “require[d] each subscriber to disclose his sex, sexual orientation and whether he would bring children to a household.
” By creating drop-down menus for different sex, orientation, and children options, Roommates.com co-created the housing ads on its website, so Section 230 could not save it from being sued for housing discrimination.
(Under federal law, you can’t discriminate against protected classes in housing advertisements, though in limited circumstances you can discriminate in actually choosing your roommate).
So if designs its products and runs is business in a way that makes it a co-creator of illegal falsehoods, it can be sued. Consider Biden’s concerns about a political ad on that made false claims.
, many internet companies, has employees who work directly with advertisers and help them develop ads for . If those employees directly worked on and encouraged illegal and false ads, could be sued as the co-creator of those ads.
Section 230 wouldn’t apply.
If your employees help write illegal ads, they are yours too. Source: Careers”,”author”:”Mark Gray”,”date_published”:”2020-08-03T23:37:31.067Z”,”lead_image_url”:”https://miro.medium.com/max/1200/1*XnZFc3oLZs70lJyVqiIk-w.jpeg”,”dek”:null,”next_page_url”:null,”url”:”https://medium.com/digital-diplomacy/republicans-want-the-fcc-to-regulate–it-cant-ad82a2087b7a”,”domain”:”medium.com”,”excerpt”:”A Section 230 explainer for normal people”,”word_count”:2102,”direction”:”ltr”,”total_pages”:1,”rendered_pages”:1}
& Return To Capitol Hill; Internet Rules Among Issues
With the White House set to shift parties in January, powerful regulatory agencies the Federal Trade Commission and the Federal Communications Commission face sweeping issues with big implications for tech and entertainment, from antitrust and privacy to net neutrality, legal immunity for Internet platforms and media-cross ownership.
“They are piling up.
Many issues that we were working on a decade ago are still around — the digital divide, net neutrality, copyright — and now we have others, looking at big tech antitrust and Section 230.
We need to see policymakers step up and take action,” said Christopher Lewis, president and CEO of policy nonprofit Public Knowledge, which promotes free expression and an open Internet.
Curating Internet content, or not, is by far the noisiest issue and the most political. The right and left both have concerns about how social media platforms operate, but diametrically opposed goals: the left wants more aggressive policing, while the GOP now equates curation with censorship.
So expect bellowing Tuesday when the Senate Judiciary Committee grills CEO Jack Dorsey and CEO Mark Zuckerberg at a hearing on Capitol Hill.
The event is titled “Breaking the News: Censorship, Suppression, and the 2020 Election,” which gives an idea of where it’s heading at a time when mainstream social media platforms wrangle baseless claims that Democrats stole the election.
Tomorrow’s hearing follows one in the House last month, pre-election, that included Sundar Pichai, CEO of Google parent Alphabet.
At issue is Section 230 of the decades-old Communications Decency Act that shields Internet companies from liability both for content on their platforms and for attempts to moderate it. President Donald Trump has asked variously for a repeal of Section 230 entirely or the part of that lets companies curate. In an executive order, he asked the FCC to review the law.
Current FCC chairman Ajit Pai is on it. “What does Section 230 currently mean?” Pai asked in a statement last month.
“Many advance an overly broad interpretation that in some cases shields social media companies from consumer protection laws in a way that has no basis in the text of Section 230.
The Commission’s General Counsel has informed me that the FCC has the legal authority to interpret Section 230. Consistent with this advice, I intend to move forward with a rulemaking to clarify its meaning.”
Parler Sees Membership Double As Conservatives And Donald Trump Backers Seek Alternative To ,
Alexandra Givens, president and CEO of the Center for Democracy & Technology, is looking for “thoughtful steps to depoliticize the debate over Section 230 so we can have a constructive conversation about how to keep platforms accountable and protect free speech.”
“President Trump has repeatedly targeted Section 230 in a retaliatory campaign against platform content moderation decisions that he personally diss.
I hope a Biden administration will seek out ways to keep platforms accountable and protect free speech that do not involve violating the First Amendment,” she said.
Overall, she hopes the Biden administration “can make progress on some long-overdue tech policy priorities including federal privacy legislation that addresses data-driven discrimination, increased resources and authorities for the FTC, wider and more affordable Internet access.”
The FTC and FCC have five commissioners each with staggered terms — five years for the FCC, seven for the FTC. They are nominated by the president and confirmed by the Senate. The protocol is a 3-2 majority who holds the White House.
There can never be more than three commissioners of either party. Chairs – Pai at the FCC and Joseph Simons at the FTC — are expected to voluntarily resign with a change of administration, but aren’t required to.
Several members of Congress have asked Pai not to pass anything new in the current interregnum.
First Woman To Lead FCC As Permanent Chair?
There’s pressure on President-elect Joe Biden to nominate the first woman as permanent chair in the agency’s history. Current Commissioner Jessica Rosenworcel is viewed as a top contender. The senior Democrat on the commission would not need Senate confirmation since she’s already there.
She may be in line to serve as acting chair anyway if there’s a vacancy and a successor hasn’t been confirmed. Other names being floated include Mignon Clyburn, acting FCC chair in 2013 who served for five more years. She’s the daughter of Rep.
James Clyburn (D-SC), whose endorsement of Biden before the South Carolina primary helped change the course of his presidential campaign.
Mignon Clyburn, though, has been building a career in the private sector, and serves on corporate boards of companies including Lionsgate.
Other names floated include Gigi Sohn, former senior adviser to FCC chairman Tom Wheeler; attorney Anna Gomez, former deputy assistant secretary for communications and information at the National Telecommunications and Information Administration; and Cathy Sandoval, a law professor and former commissioner at the California Public Utilities Commission. While at CPUC, she was appointed by the FCC to the Federal-State Joint Conference on Advanced Telecommunications Services.
In a bit of regulatory drama, one FCC commissioner, Michael O’Rielly (who was appointed by President Obama in 2013) was nominated by President Trump last year to another term. But the White House revoked the nomination in August after O’Rielly gave a speech signaling opposition to that Trump executive order to try to limit liability protections for social media companies.
Trump then nominated Nathan Simington, a Commerce Department official who told a Senate Commerce committee confirmation hearing that he had played a “minor role” in drafting the Trump petition. Simington has not been confirmed yet.
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A Democratic FCC would be expected to act on net neutrality, the concept of an open Internet where for-profit broadband providers do not serve as gatekeepers but are treated more public utilities.
Net neutrality has long been a priority of the Dems and seen a series of derivations and court battles for the past decade, only to be repealed by Pai’s FCC in late 2017. The agency, Pai said, should not have such sweeping authority over broadband.
The FCC can currently ask providers to voluntarily keep customers connected if they can’t pay but it can’t force them to. The COVID-19 crisis, however, has highlighted the nation’s digital divide, a bipartisan concern.
Simons was sworn in as FTC chair in 2018. Current commissioners Rohit Chopra and Rebecca Kelly Slaughter are said to be contenders to take his post. Another name out there is former FTC official and professor at Columbia Law School Tim Wu, who is widely known for coining the term “net neutrality” in 2002 and championing equal access to the Internet.
But the talk right now, with numerous other names bandied about in D.C. policy circles, is largely speculation, as a transition team has yet to be formed for either agency.
Antitrust, Privacy Major Topics
Antitrust and privacy are two other percolating issues. In early October, the House Judiciary Committee’s Antitrust Subcommittee released a 400-page report after a 16-month probe into the state of competition in the digital economy, especially challenges presented by the dominance of Apple, Amazon, Google and .
The tome called the four companies monopolists and asked Congress to, among other measures, change antitrust laws to force them to split off businesses and make it harder for them to buy smaller rivals. The CEOs of , , Alphabet as well as Tim Cook, chief executive of Apple, were called in to testify as part of the process.
Subsequently, the DOJ, which shares antitrust oversight with the FTC, and a number of states’ attorneys general filed a landmark suit against Google parent Alphabet last month. and Amazon could be next.
Just last week, European Union regulators brought antitrust charges against Amazon, saying the online retail giant broke competition laws by unfairly using its access to data to harm smaller merchants that use its platform.
Amazon has access to huge amounts of nonpublic data from its vendors and EU claims the Jeff Bezos company abuses its dual role as platform and merchant by using that data to pinpoint popular products and compete with them, often at lower prices.
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In the U.S., the movement reps a shift in thinking about antitrust, which has in the past been more narrowly limited to probes of anti-competitive behavior in cases where consumers end up paying more for something because of it. That’s not an issue with free services , Google and Amazon, but the idea is they can skew the market and disadvantage consumers in indirect ways.
Consumer privacy, which exploded as an issue after the 2018 -Cambridge Analytica scandal, is still a hot button. (The consulting firm acquired the personal data of millions of users without their consent to be used for political advertising.
) There may be a push for a federal law one the EU adopted in 2016, the General Data Protection Regulation, or GRPD. The U.S.
has a patchwork of privacy laws in a handful of states, the highest-profile being the California Consumer Privacy Act, or CCPA.
“There’s definitely been an effort over the last few years to prep a national privacy law. It’s been bipartisan. There have been different proposals from different members. The devil’s in the details,” said Public Knowledge’s Lewis.
On cross-ownership, the Supreme Court last month agreed to hear the FCC’s challenge to the rules, which the agency argued should be relaxed given how dramatically the Internet has reshaped competition and the media landscape. Among other limitations, for instance, rules currently don’t allow cross-ownership of a TV station and newspaper in the same market and also limit TV-radio cross-ownership.
Lewis said Biden has made clear that his top focus is COVID-19. “There are only four issues on his transition website: COVID, the economic crisis related to COVID, the environment, and racial equality and justice. All frontline issues.
Who can argue that those are the biggest issues in the world? But my point is that while that is happening, there are congressional committees with jurisdiction over [Internet, media, communications policy] while the frontline issues are going on.”