A Wednesday House Communications Subcommittee hearing on broadcasting and cable companies’ role in spreading disinformation focused on letters two subpanel members earlier sent to 12 major providers asking them to justify carrying Fox News, Newsmax and One America News Network, as expected (see 2102230001). Republicans said the letters (see 2102220068), from Reps. Anna Eshoo and Jerry McNerney, both D-Calif., are evidence Democrats want to punish conservative news media. Democrats emphasized they aren’t seeking new legislation to regulate the media.
Major Questions Doctrine
The Supreme Court heard Facebook v. Duguid Tuesday (19-511), a case expected to provide long-awaited clarity on the definition of what's an automatic telephone dialing system under the Telephone Consumer Protection Act (see 2011100052). Consumer groups hope the court will do nothing to narrow the ATDS definition. In September, the administration supported Facebook. Lawyers for companies facing TCPA lawsuits hope the court will resolve a split in the federal circuits.
Any Joe Biden administration could mean major changes in how DOJ and the FTC handle antitrust matters, said current and former FTC commissioners during a Tuesday Technology Policy Institute webcast event. They suggested that what changes might occur if Democratic presidential nominee Biden wins depend on what resources and statutory changes Congress provides. Some FTC alumni commented on the DOJ Antitrust Division’s lawsuit against Google, claiming the company engages in anticompetitive behavior in its search engine business (see 2010200058).
Supreme Court Justice Ruth Bader Ginsburg's death could affect the outcome of the court's Oracle v. Google intellectual property case and be a turning point on some administrative law issues, experts told us. The federal judges most mentioned as President Donald Trump most likely choice to replace Ginsburg are considered somewhat unknown quantities on issues such as technology, media regulation and copyright.
The FCC may wait a bit before taking up any NTIA petition for rulemaking to clarify the scope of the tech industry’s liability shield (see 2005290058), observers predicted in interviews this week. The Association of National Advertisers said it’s ready to defend marketers’ interests if threatened. A tech industry representative and academics told us President Donald Trump’s executive order last week sets a dangerous precedent and could compromise independent agencies.
Tech and business groups hailed President Donald Trump’s decision postponing the fourth installment of tariffs as his administration tries to negotiate a comprehensive trade deal with China, though three existing rounds of tariffs stay as is. Bipartisan condemnation greeted Trump’s surprise announcement he will let U.S. companies resume shipments to Huawei, though the tech-equipment giant remains subject to Commerce Department export administration regulations and entity list restrictions (see 1905160081).
The Supreme Court handed down what's essentially a middle of the road decision in a junk fax case, PDR Network v. Carlton & Harris Chiropractic, but its decision has implications for the FCC and the communications bar, lawyers following the case said Thursday. The opinion was expected to answered the question of whether the FCC has the long-assumed power to exclusively implement the Telephone Consumer Protection Act (see 1904250006) but stopped well short of that. The issues raised appear far from settled for the FCC, since four of the justices would have gone further, lawyers said.
With the FCC ending part-time leased access rules earlier this month, considering them contrary to the First Amendment (see 1906060029), media law and Constitution experts see potentially thorny questions emerging as it also considers whether its full-time requirements have similar problems. The agency could find itself in a particularly sticky situation if it decides the statutory requirement underlying its leased access rules seems to have a constitutional problem, said former FCC Deputy General Counsel Peter Karanjia.
The Supreme Court's 5-4 decision on First Amendment responsibilities of private operators of public access cable channels Monday isn't expected to have broader effects on public access channel operations generally or on the question of how far the public fora doctrine extends into cyberspace. Alliance for Community Media President Mike Wassenaar told us it has been urging public access channel members to have clear editorial policies and to work closely with producers to avoid litigation.
The ways the FCC and antitrust agencies like DOJ evaluate deals can diverge widely, said experts Saturday at American University-hosted annual Research Conference on Communications, Information and Internet Policy. Steptoe & Johnson's Jon Sallet said the FCC's big question is often what range of policy options are "reasonable" under the Chevron doctrine of judicial deference to agencies, and what record would support a decision made within that range, while at DOJ the focus was on how does one convince a judge, with the burden of proof being on government to prove its case.