Lawrence Spiwak

Congress is currently considering legislation which would require operators of smartphone app stores (namely Apple for iOS and Google with Android) to verify the age of all users as a pre-condition of using any individual app. In other words, rather than have each alleged problematic app be responsible for verifying the age of their respective customers, this legislation would have the federal government shift the burden—and, by extension, the assumption of full liability for the actions of third parties over which they have no control—onto app stores.

In the waning days of the first Trump Administration, Tom Johnson, then-General Counsel of the Federal Communications Commission, released a memorandum outlining a potential legal theory to allow the FCC to institute a rulemaking to interpret Section 230 of the Communications Decency

The lack of broadband in many rural and Tribal communities in the U.S. is widely recognized, but there are also claims of a lack of broadband availability in predominantly minority and urban communities, sometimes labeled digital redlining or digital discrimination. Motivated by such claims, the Infrastructure Investment and Jobs Act of 2021 includes a provision addressing digital discrimination and directing the Federal Communications Commission to write rules implementing the statutory provision.

With the Infrastructure Investment and Jobs Act of 2021 providing sufficient funding to deploy broadband to nearly every household in the nation, the Digital Discrimination provisions contained in Section 60506 of the statute are a curiosity. Nonetheless, Congress directed the Federal Communications Commission to write rules implementing the statutory provision. The FCC recently released draft final rules implementing Section 60506 in anticipation of its November 2023 Open Meeting which adopt a somewhat standard disparate impact analysis.

The debate over how internet platforms moderate content has reached a fever pitch. To get around First Amendment concerns, some proponents of content moderation regulation argue that internet platforms should be regulated as “common carriers”—that is, internet platforms should be legally obligated to serve all comers without discrimination. As these proponents regularly point to communications law as an analytical template, it appears that the term “common carrier” has become a euphemism for full-blown public utility regulation complete with a dedicated regulator.

According to the DC Circuit’s logic, the Federal Communications Commission’s jurisdiction over broadband Internet access services now resides in some sort of regulatory purgatory.

[Commentary] In a few weeks, it is widely expected that the Federal Communications Commission will release a draft order reversing the Obama Administration’s controversial 2015 decision to reclassify broadband internet access from a lightly-regulated “information” service under Title I of the Communications Act to a heavily-regulated common carrier “telecommunications” service under Title II of that same Act. As with the original 2015 decision, a court appeal of this policy change is a virtual certainty. Yet, even though the DC Circuit in USTelecom v.

[Commentary] Under the plain terms of the Communications Act, the Federal Communications Commission is obligated to review industry mergers and acquisitions to determine whether such transactions serve the public interest. Given that the FCC is “entrusted with the responsibility to determine when and to what extent the public interest would be served by competition in the industry," the commission’s merger review serves a useful and important function.

In these frugal times, many Americans are forced to do more with less. Given the pernicious effect of the growth of the regulatory state, it is time for the government to do less with less. As such, our recommendation remains the same now as in 2011: As Congress and the Trump Administration struggle with the difficult policy decisions of how to shrink federal spending and get the economy moving again, perhaps an excellent place to start would be to investigate responsible cuts in the size of the federal regulatory bureaucracy.

[Commentary] To his credit, President Donald Trump has appointed sitting Commissioner Maureen Ohlhausen as acting chair of the Federal Trade Commission. Given all of the things on the FTC's plate, President Trump would be wise to make Ohlhausen's appointment permanent. Like her newly appointed counterpart, Chairman Ajit Pai at the Federal Communications Commission, Ohlhausen is one of those few public servants who truly is a "lawyer's lawyer," with a profound respect for the bounds of her agency's statutory mandate. Indeed, while often cast as a regulatory agency, the FTC is better described as a law-enforcement agency. And, given such great power, the FTC must wield it judiciously.

Like it or not, the issues facing the FTC are complex and need to be approached with analytical rigor and honesty. President Trump has already made an excellent pick with Ajit Pai as chairman of the FCC. He should bookend the set by making Maureen Ohlhausen permanent chair of the FTC.

[Lawrence J. Spiwak is the President of the Phoenix Center for Advanced Legal & Economic Public Policy Studies.]