Friday, October 16, 2020
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Federal Communications Commission Chairman Ajit Pai issued the following statement on Section 230 of the Communications Act:
Members of all three branches of the federal government have expressed serious concerns about the prevailing interpretation of the immunity set forth in Section 230 of the Communications Act. As elected officials consider whether to change the law, the question remains: What does Section 230 currently mean? 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 FCC’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. Throughout my tenure at the Federal Communications Commission, I have favored regulatory parity, transparency, and free expression. Social media companies have a First Amendment right to free speech. But they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters.
On Oct 15, Federal Communications Commission Chairman Ajit Pai announced that he will move forward with clarifying the meaning of Section 230.
FCC Commissioner Brendan Carr: “Section 230 reform is long overdue. The status quo isn’t working. That is why I have called for the FCC to take action and do our part to rein in Big Tech. Chairman Pai is right that the FCC has legal authority to interpret Section 230, and I applaud his leadership in announcing the FCC will move forward with clarifying the statute. Section 230 confers a unique set of benefits on social media companies and other ‘providers of interactive computer services.’ It gives them special protections that go beyond the First Amendment rights that protect everyone in this country. Congress passed this provision back in the 1990s to address the limited content moderation practices employed by Internet sites like the then-popular Prodigy and CompuServe messaging boards. Flash forward over 20 years, and the content moderation practices employed by the Internet giants of today bear little resemblance to the activities Congress had in mind when it passed Section 230. And a handful of court cases have drastically expanded the scope of Section 230, adding immunities found nowhere in the statutory text, as Justice Thomas explained in a statement just this week. Moving forward at the FCC will bring much-needed clarity to Section 230 and close the loopholes that Big Tech has exploited. These reforms will promote ‘a forum for a true diversity of political discourse,’ as Congress envisioned when it passed Section 230, without limiting the First Amendment rights of any speaker. I commend Chairman Pai for his leadership on this issue, and I look forward to the FCC taking expeditious action.”
FCC Commissioner Jessica Rosenworcel: “The timing of this effort is absurd. The FCC has no business being the President’s speech police.”
FCC Commissioner Geoffrey Starks: “We’re in the midst of an election. The president’s Executive Order on Section 230 was politically motivated and legally unsound. The FCC shouldn’t do the president’s bidding here.”
Senator Ron Wyden (D-OR): "The FCC does not have the authority to rewrite the law, and Ajit Pai can't appoint himself commissioner of the speech police."
John Bergmayer, Legal Director at Public Knowledge: “The FCC does not have authority to ‘clarify’ Section 230 — it is not a statute that Congress gave the agency any authority over whatsoever. Additionally, if Chairman Pai’s planned rulemaking is at all informed by the NTIA petition, it is likely to be fatally flawed in other ways, as the NTIA insists on an interpretation of the statute that is contradicted by the plain meaning of the words that Congress enacted, and, in fact, that contradicts itself. There is room for a good-faith debate on how to reform Section 230 to ensure that platforms take more responsibility for the content they host, and the harms they magnify. Like the DOJ’s recent proposal, however, the NTIA’s petition to the FCC is not designed to address those harms, but to further the spread of harmful content and to limit the ability of platforms to exercise editorial discretion. It is particularly ironic that the Chairman would initiate this rulemaking while simultaneously affirming his ‘Restoring Internet Freedom Order,’ which repealed net neutrality protections for consumers under the theory that the FCC lacks jurisdiction over entities the Chairman now claims the Commission can regulate. Section 230, to be clear, applies not only to major social media platforms, but also any site that hosts user content such as news publications with comment sections, infrastructure providers like broadband providers, and users of these services. While the details of Chairman Pai’s thinking on this issue are unclear, the FCC, an independent agency, should not follow the administration’s direction in this matter.”
Free Press Senior Policy Counsel Gaurav Laroia: "With this announcement, the Pai Doctrine gets clearer and clearer. He declares himself a champion of the First Amendment and claims he doesn’t want heavy-handed internet regulation — then pushes policies that stifle free expression online. In this case, the Pai Doctrine would expose websites to liability if they remove any of President Trump’s lies or provide any context to such disinformation. The FCC has no authority to issue binding pronouncements on Section 230. Its effort to make the platforms liable for their editorializing or content takedowns makes no sense. No one, from Trump on down, has the right to be carried on Facebook, Twitter or any other website — and those websites have a First Amendment right to disassociate themselves from speech they disapprove of. And without underlying unlawfulness there’s nothing for Trump or anyone else to sue over if Twitter takes down a post. The real goal of the Trump FCC here is to engage in political retaliation against protected speech and editorializing. Surely President Trump and Chairman Pai can’t suggest that Twitter should be liable for carrying the president’s lies. The intent instead is to force platforms to carry these lies, and open them up to lawsuits for everything else their users post if the platforms dare to refuse this kind of presidential commandeering. The FCC is proposing nothing less than a Fairness Doctrine for Facebook, and a must-carry regime for fraudsters, propagandists, bigots, charlatans and those in power who inspire, provoke and promote them. It’s no coincidence that this charade is happening during the final weeks of the 2020 presidential election. The Trump administration and its FCC allies are trying to bully and intimidate social-media companies into rolling back their content-moderation efforts for election-related disinformation. This FCC proceeding is a hypocritical and cynical enterprise that threatens online diversity, our fundamental freedoms and the rule of law.”
Evan Greer, deputy director of Fight for the Future: "Ajit Pai’s plan to move forward with the Trump administration’s deeply silly executive order would be laughable if it weren’t so dangerous. This is the guy who repealed net neutrality because he claimed basic rules that prevented ISPs from blocking websites and apps were "burdensome government regulations." Now he wants to turn the Federal government into online speech police, dictating what social media companies can and can’t allow? Trump tweeting in all caps to REPEAL SECTION 230 makes about as much sense as someone organizing a protest to repeal the First Amendment. If he got his way, websites would become legally responsible for the opinions, videos, and memes posted by their users. Social media platforms would likely engage in mass censorship and banning of accounts rather than open themselves up to lawsuits for hosting controversial opinions –– Trump’s accounts would surely be among the first to go. It would strip users of key protections too. Who’s excited to get sued for retweeting something? The reality is that lawmakers from across the political spectrum are deeply misinformed about how Section 230 actually works. It feels like every week there’s a new misguided proposal in Congress. But repealing Section 230 won’t do anything to hold Big Tech companies accountable or address the harms done by their data harvesting business models. And it won’t do anything to address concerns around biased moderation or the silencing of marginalized voices. Repealing Section 230 would just make all the bad parts of the Internet worse while burning the good parts to the ground. It’s time to put this bad idea to rest and focus on putting actual policies in place to protect free speech and rein in Big Tech abuses, like enacting strong Federal data privacy legislation, restoring net neutrality, banning micro-targeting and harmful forms of algorithmic amplification, and breaking up monopolies." Unfortunately, the Trump administration is not alone in its quest to eviscerate Section 230. Vice President Joe Biden has also called to "revoke" the protections, and there are a slew of terrible bills in Congress from both Democrats and Republicans attacking this legislation. Fight for the Future has been leading the charge against some of the worst proposals, including the EARN IT Act, the companion of which was recently introduced in the House. Fight for the Future is one of the few civil society groups working to defend Section 230 for human rights and free expression reasons, while organizing for actual policy solutions to the very real harms caused by Big Tech business models."
Elizabeth Banker, deputy general counsel for the Internet Association: ”The First Amendment protects every private enterprise’s ability to set and enforce rules for acceptable content on their services." A change to the constitutional guarantees found there “is clearly beyond the FCC’s reach.”
Sens Jeff Merkley (D-OR) and Ron Wyden (D-OR), along with 11 of their Senate colleagues, have introduced a bill to expand the Federal Communication Commission 2.5 GHz Rural Tribal Priority Window to allow Tribal Nations and Native Hawaiian organizations the time they need to apply for spectrum licenses for unassigned spectrum over their own lands—a critical step to expanding broadband access in their communities. The Extending Broadband Tribal Priority Act of 2020 will require the FCC to open a new 2.5 GHz Rural Tribal Priority Window that lasts at least 180 days, to commence no later than 30 days after the bill is enacted. This bill will give Tribal Nations and Native Hawaiian organizations an adequate amount of time to apply for spectrum licenses to deploy much-needed internet services on their lands.
It is a privilege to address this conference, and to talk about the important job we have of protecting access to the scarce resource that is our nation’s airwaves, promoting the core principles of localism, diversity, and competition, and ensuring that broadcasters first and foremost serve the public interest. I look forward to engaging with you as leaders in the industry on how to address the issues Hispanic and Latinx and other underrepresented broadcasters face, and exploring what we all can do to keep radio vibrant and strong. What can be done to increase these ownership numbers? I am on the record in strong support of bringing back the tax certificate program as a means to try to level the playing field for those who traditionally lack access to the kind of capital and opportunities necessary to purchase or run a broadcast station.
Rep Jim Hagedorn (R-MN) and KTOE DJ Al Travis Thielfoldt face further questions about the nature of their working relationship as documents raise questions over whether Rep Hagedorn’s campaign paid Thielfoldt for radio interviews. The Free Press recently obtained a series of invoices written by Thielfoldt in his work as a paid advertising consultant to the campaign covering Sept 2019 and the first five months of 2020. In those monthly invoices, Thielfoldt lists dates of interviews he or others conducted with Rep Hagedorn on KTOE as well as interview blocks of time.
Media experts say the fact Thielfoldt listed Hagedorn’s appearances on KTOE as radio interviews in his invoices raises the possibility he may have violated Federal Communications Commission regulations, given that he never disclosed his relationship with Hagedorn on the air during interviews. “If this information were brought to the attention to the FCC enforcement bureau on its face, I think it would almost certainly trigger an inquiry,” said Benton Institute for Broadband & Society Senior Counselor Andrew Jay Schwartzman. Schwartzman points out Thielfoldt could still face penalties under the Communications Act for an indirect payment. Since Thielfoldt included interview times in his invoices, FCC regulators could argue he still ran afoul of federal rules if they find more information that doesn’t match his explanation.
Former Federal Communications Commissioner Mignon Clyburn made a case for the "public/private" partnership of regulator/industry as the blueprint for advancing a more diverse and inclusive media landscape. She said both regulators and industry are needed to connect communities and giving individuals the tools they need to exercise their rights to free expression. She called the teaming of regulators, who must be mindful of the public interest, and the power of industry an "incredible public/private partnership" that has provided, among other things, the Universal Service Fund broadband subsidies that help lower-income Americans and hard-to-reach areas get broadband service. She said that partnership "makes us the envy of the world," but also is a spur to do better. She said it is not always clear what that "better" will be, but the "collaborative, open, free-market framework" allows both to work for a "better and more inclusive tomorrow." Clyburn said that "tomorrow" includes a competitive communications landscape that allows all to participate and thrive.
The Federal Communications Commission has renewed the charter of the Consumer Advisory Committee for an additional two-year term beginning October 16, 2020. The CAC will continue to provide recommendations to the FCC on consumer topics, as specified by the Commission, gather data and information, and perform analyses that are necessary to respond to the questions or matters before it. Scott Marshall continues as Designated Federal Officer.
Stories From Abroad
UK Prime Minister Boris Johnson’s election promise to connect the entire country to cutting-edge broadband speeds by 2025 has been dubbed “ludicrously unrealistic” after the parliament’s spending watchdog warned that rural internet users risk being left behind by the slow pace of progress. The comments from Meg Hillier, chair of the public accounts committee, followed a National Audit Office report that said the 2025 target was “challenging” and warned that those rural areas risk being further left behind. The government launched a £5bn plan to subsidise the upgrade of telecoms networks to full fibre from older copper networks in rural areas in September 2019. The funds were designed to connect the final 20 per cent of the country but little progress has been made in delivering on the plan, according to senior industry executives.
Benton (www.benton.org) provides the only free, reliable, and non-partisan daily digest that curates and distributes news related to universal broadband, while connecting communications, democracy, and public interest issues. Posted Monday through Friday, this service provides updates on important industry developments, policy issues, and other related news events. While the summaries are factually accurate, their sometimes informal tone may not always represent the tone of the original articles. Headlines are compiled by Kevin Taglang (headlines AT benton DOT org) and Robbie McBeath (rmcbeath AT benton DOT org) — we welcome your comments.
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