An FCC draft order to undo Title II net neutrality appears legally strong, said some attorneys on a Phoenix Center panel, but another questioned aspects. Chairman Ajit Pai's draft to restore a less-regulatory Communications Act Title I broadband framework has precedent, deference and investment arguments in its favor, said Tom Navin, a Wiley Rein attorney and ex-Wireline Bureau chief. At around the same time Tuesday, a pro-Title II panel was held (see 1712050057).
Section 230
The House should move forward with legislation to combat online sex trafficking, Communications Subcommittee Chairman Marsha Blackburn, R-Tenn., said at a Thursday hearing on a House bill to amend Section 230 of the Communications Decency Act. Congress is confronting the “very ugly subject” of sex trafficking and “driving toward effective action,” Blackburn said. She's committed to finding the right legislative solution that gives victims "adequate recourse" (see 1711290052). Ranking member Mike Doyle, D-Pa., hopes legislation can soon be marked up and go to the floor for a vote, a move officials told us is likely early next year.
House Communications and Digital Commerce subcommittees are expected to delve further into their concerns about tech companies' data privacy policies during a Wednesday hearing, we are told. The hearing, on how use of algorithms affects consumer privacy and choice with online content, follows scrutiny elsewhere on Capitol Hill last month about tech firms' handling of online advertising in Russian-led disinformation campaigns during the 2016 U.S. presidential election (see 1711210025, 1711020001 and 1711210025). The hearing will begin at 10 a.m. in 2123 Rayburn.
FCC Democratic commissioners urged net neutrality advocates to rise up in defense of open internet regulation that appears to be in the crosshairs of Chairman Ajit Pai and fellow Republicans. "Time to call foul. Time to raise a ruckus. Time to save #NetNeutrality," tweeted Commissioner Jessica Rosenworcel Friday, linking to a Slate article in which she called for FCC hearings across the country to allow Americans to comment on Pai's plans.
The Senate should quickly pass the Stop Enabling Sex Traffickers Act (S-1693), said sponsor Sen. Rob Portman, R-Ohio, noting a Toledo Blade editorial. The bill would update Section 230 of the Communications Decency Act, which "was good when it was signed into law in 1996" but has "unwittingly" provided cover to websites that facilitate online sex trafficking, Portman said. The Senate Commerce Committee passed the bill (see 1711080042) and discussions are ongoing to reconcile differences with a similar House bill (HR-1865) sponsored by Rep. Ann Wagner, R-Mo. (see 1711130062).
Rep. Ann Wagner, R-Mo., HR-1865’s sponsor, said her Communications Decency Act update makes narrow amendments “to make sure the congressional intent is clear” and “that bad actors can’t hide behind Section 230.” The House bill’s approach is slightly different from the 2017 Stop Enabling Sex Trafficking Act (S-1693), but goals are the same and lawmakers “are working out the differences,” she said Saturday on C-SPAN's Communicators. SESTA, with 46 co-sponsors, cleared the Senate Commerce Committee Thursday (see 1711080042), but floor action isn't likely until closer to the end of the year or early next year, a Senate aide said. Internet companies support principles behind bills to curb online sex-trafficking but fear the wrong approach could worsen the problem, NetChoice General Counsel Carl Szabo said. He said the two bills gaining political momentum are worthy efforts but could have “unintended consequences.” Rather than altering 230, which gives website providers immunity from prosecution over content on their sites, Szabo said, legislation should amend the criminal code to give law enforcement tools they need. “Our member companies are working tirelessly -- they have armies of people looking at and identifying” offensive content, which they refer to law enforcement, he said. Smaller internet companies might not have the resources to do such monitoring, he said.
Free State Foundation plugged a "commercial reasonableness" standard with "rebuttable deregulatory presumptions" for FCC case-by-case review of open internet disputes if it concludes it has broadband regulatory authority. The agency "should require findings, based on clear and convincing evidence of demonstrated market failure and consumer harm, before any enforcement action is taken against an ISP," said Free State filings (here, here) this week in docket 17-108 on meetings with Commissioner Brendan Carr and an aide to Chairman Ajit Pai. It opposed broadband regulation based on Title II or Section 706 of telecom law. Meeting with the Pai aide, AT&T argued for moving from a Title II to Title I classification and cited FCC authority to pre-empt state broadband regulation, something Verizon recently touted (see 1710190057). In meetings with Commissioner Mike O'Rielly and Pai Chief of Staff Matthew Berry, Tech Freedom discussed two "sleeper issues" it said may force Congress to act: did Title II broadband classification constitute a "major question" requiring legislative authorization, and what does Section 230(c) of the Communications Decency Act mean for FCC enforcement of a no-blocking rule and implementation of the Telecom Act? Hosting Commissioner Mignon Clyburn in New York, Etsy opposed undoing Title II regulation that it said helped its 1.8 million sellers -- most operating out of homes -- utilize its platform. To facilitate public review of the record, an FCC public notice made all filings in the docket available via links to downloadable files.
S-1693 to help website providers police online sex-trafficking appears headed for approval in a Wednesday Senate Commerce Committee markup. Tech experts say the bill still creates legal uncertainties and won’t do much to stop bad actors. The Stop Enabling Sex Traffickers Act (SESTA) bill got a boost Friday (see 1711030067) with approval of a manager’s amendment tightening definitions of what constitutes a “knowing” violation of the law, and clarifying that states could bring civil suits in federal court for violations of federal law. The amendment prompted the Internet Association, which previously had concerns (see 1709180044), to back the bill.
Oracle topped early Q3 tech sector lobbying disclosures Friday, though many tech and telecom firms had not reported their own totals at our deadline. Oracle spent $3.82 million on lobbying during the quarter, a 90 percent increase from the same period last year. CTIA led industry groups on reported spending $2.14 million in the quarter, down from $2.77 million during the same period last year. Six groups claimed $240,000 in income for lobbying on CTIA’s behalf, and Les Brownlee & Associates reported $30,000 for lobbying for CTIA on behalf of top carriers AT&T, T-Mobile and Verizon. Comcast topped early Q3 communications sector lobbying expenditures, though it hadn't filed its own report yet. Thirty outside firms reported $1.668 million in lobbying income from the company.
White House Thursday confirmation that President Donald Trump intends to fill the three vacant FTC commissioner seats, including to make Paul Weiss antitrust lawyer Joseph Simons permanent chairman (see 1710190001), likely means the FTC can move forward with its long-expected shift toward GOP-sought policy goals in tech and telecom, industry officials and lobbyists told us. The commission has faced a 1-1 deadlock since January under Republican acting Chairman Maureen Ohlhausen and Democratic Commissioner Terrell McSweeny.