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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, like 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 Twitter CEO Jack Dorsey and Facebook 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.”
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 dislikes. 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 based on 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.
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 like 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 Facebook. 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 Facebook, Twitter, 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. Facebook 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.
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 like Facebook, 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 Facebook-Cambridge Analytica scandal, is still a hot button. (The consulting firm acquired the personal data of millions of Facebook users without their consent to be used for political advertising.) There may be a push for a federal law like 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.”