The Biden administration still wants the freedom to regulate social media platforms, just not in the way Florida and Texas laws are doing it.

The Justice Department, by way of Solicitor General Elizabeth Prelogar, filed a brief this week with the Supreme Court asking it to hear an appeal of a suit against state laws that dictate how platforms can moderate certain content and that require them to explain to users how they are moderating it.

The brief asserts that prohibiting Facebook or Twitter from removing or banning some content violates the First Amendment rights of those social-media outlets, which Prelogar says have such speech protection.

Just as a newspaper opinion page aggregates outside content, and is protected by the First Amendment, so, too is social media's content moderation.

"When a social-media platform selects, edits, and arranges third-party speech for presentation to the public, it engages in activity protected by the First Amendment," Prelogar wrote.

But the protection is not absolute, she told the court. "That activity, and the platforms’ business practices more generally, are not immune from regulation,” the brief said. “But here, the States have not articulated interests that justify the burdens imposed by the content-moderation restrictions under any potentially applicable form of First Amendment scrutiny."

President Joe Biden is on the record backing reforms, if not elimination, of the protections from civil liability social-media sites enjoy under Section 230 of the Communications Decency Act, and the administration clearly is not opposed to regulations requiring those sites to inform users of how they are making content-moderation decisions.

The Justice Department and Federal Trade Commission are proposing tightening their merger review guidelines, citing what Attorney General Merrick Garland calls “unchecked consolidation” that “threatens the free and fair markets upon which our economy is based.”

Garland said the guidelines reflect modern market realities. One of those is the rise of the biggest of big tech, Facebook in particular. The Justice Department and FTC — under both Republican and Democratic administrations — as well as Congress have looked at Facebook with concern over efforts to buy up potential competitors before they get big enough to trigger serious merger reviews. For example, one of the new guidelines says that mergers “should not eliminate a potential entrant in a concentrated market.”

Garland said the guidelines reflect modern market realities. One of those is the rise of the biggest of Big Tech — Facebook in particular, which Justice and the FTC have targeted in both Republican and Democratic administrations — and Congress have been looking at with a concern over efforts to buy up potential competitors before they get big enough to trigger serious merger reviews. For example, one of the new guidelines says that mergers "should not eliminate a potential entrant in a concentrated market."

The FTC under chair Lina Khan had signaled it would be looking hard at big tech companies and whether they got that big via buying up to monopoly. The guidelines would put that in writing as policy going forward.

Justice and FTC divvy up merger reviews for antitrust issues, with Justice generally taking the lead on communications mergers. The Federal Communications Commission merger-review process also includes competition issues, but extends to a review of whether a merger is otherwise in the public interest.

Also Read: DOJ Investigating Search, Social, Online Sales Giants

The guidelines were last updated in 2020 during the Trump administration, but Democrats argued they kept a thumb on the scale for mergers, including by, for one, failing to identify merger characteristics that are most likely to be problematic. That is clearly not the case with the draft guidlines just proposed under the Biden Administration.

The new guidelines are in draft form, so they’ll still need to be finalized, but they will come after public comment on how the guidelines should be revised that included feedback from over 5,000 parties, the DOJ said.

The new guidelines are:

1. “Mergers should not significantly increase concentration in highly concentrated markets;
2. “Mergers should not eliminate substantial competition between firms;
3. “Mergers should not increase the risk of coordination;
4. “Mergers should not eliminate a potential entrant in a concentrated market;
5. “Mergers should not substantially lessen competition by creating a firm that controls products or services that its rivals may use to compete;
6. “Vertical mergers should not create market structures that foreclose competition;
7. “Mergers should not entrench or extend a dominant position;
8. “Mergers should not further a trend toward concentration;
9. “When a merger is part of a series of multiple acquisitions, the agencies may examine the whole series;
10. “When a merger involves a multi-sided platform, the agencies examine competition between platforms, on a platform, or to displace a platform;
11. “When a merger involves competing buyers, the agencies examine whether it may substantially lessen competition for workers or other sellers;
12. “When an acquisition involves partial ownership or minority interests, the agencies examine its impact on competition“ and “mergers should not otherwise substantially lessen competition or tend to create a monopoly.”

Those 5,000 parties, and anyone else who wants to weigh in, will now have an additional 60 days to comment on the draft guidelines, with a deadline of September 18.

Sen. Ed Markey (D-Mass.) and Rep. Doris Matsui (D-Calif.) have reintroduced a bill to boost online content moderation transparency and prevent algorithmic discrimination.

The bill was originally introduced in 2021. It failed to gain traction, but the D.C. heat on Big Tech has only ramped up since then.

Among other things, the Algorithmic Justice and Online Platform Transparency Act would prevent algorithms that exclude certain people from seeing online advertising — racial minorities for housing ads, for example, or certain gender identities from job ads.

“The legislation would ban harmful algorithms, bolster transparency by holding websites accountable for their content amplification and moderation practices, and commission a cross-government investigation into discriminatory algorithmic processes throughout the economy,” Markey’s office said Thursday (July 13).

“Congress must hold Big Tech accountable for its black-box algorithms that perpetuate discrimination, inequality and racism in our society,” Markey said.

“Harmful content continues to proliferate online, and online platforms are making conscious efforts to spread it through their algorithms,” Matsui said.

Specifically, the bill would:

1. “Prohibit algorithmic processes on online platforms that discriminate on the basis of race, age, gender, ability and other protected characteristics.
2. “Establish a safety and effectiveness standard for algorithms, such that online platforms may not employ automated processes that harm users or fail to take reasonable steps to ensure algorithms achieve their intended purposes.
3. “Require online platforms to describe to users in plain language the types of algorithmic processes they employ and the information they collect to power them.
4. “Require online platforms to maintain detailed records describing their algorithmic process for review by the Federal Trade Commission (FTC), in compliance with key privacy and data de-identification standards.
5. “Require online platforms to publish annual public reports detailing their content moderation practices.
6. “Create an inter-agency task force comprised of entities including the FTC, Department of Education, Department of Housing and Urban Development, Department of Commerce, and Department of Justice, to investigate the discriminatory algorithmic processes employed in sectors across the economy.“

Among those backing the bill's reintroduction, according to Markey, include Center for Digital Democracy, Color of Change, Common Cause, Common Sense Media, and Consumer Reports. 

Sen. Mike Lee (R-Utah) has introduced a bill that would likely require Google and Facebook to divest their ad-sales side businesses and, concerned interactive online advertisers say, likely kill their industry.

Lee is billing the Advertising Middlement Endangering Rigorous Internet Competition Accountability (AMERICA) Act as protecting competition in digital advertising by disallowing powerful online platforms like search giant Google or social-media titan Facebook from having a piece of the digital ad business driven by their platforms.

But the Interactive Advertising Bureau said the bill “has the potential to destroy one of the most powerful growth engines of the economy — digital advertising and media.“ It also said the bill would hurt millions of small businesses that rely on those digital ads by creating a “more inefficient, costly and fragmented advertising ecosystem.”

“The AMERICA Act prohibits large digital advertising companies from owning more than one part of the digital ad ecosystem if they process more than $20 billion in digital ad transactions,” reads a summary on Lee's website.

That means that ad exchange owners can't own supply- or demand-side platforms, and the largest supply- and demand-side platforms can't be co-owned.

But it is not only the largest platforms that would be affected by the bill.

Companies doing more than $5 billion in digital transactions could have a piece of both sides of the market, but they would have to abide by rules including that they must take “the best” bid on ads; provide transparency to clients to demonstrate they are acting in the customer’s best interests; and, if operating on both sides of the market, they would have to erect conflict-of-interest “firewalls.”

The new regulations and rules would be enforced both by the Justice Department and states attorneys general. And there is the dreaded — at least by most industry players — private right of action, which means companies could be sued by individuals for violations.

Lee's summary of the bill makes it clear he thinks Google and Facebook will have to divest ”significant“ portions of their ad businesses, and that Amazon may have to as well. It would also put a crimp in Apple’s efforts on the third-party ad front.

The House Energy & Commerce Committee’s Republican leadership has scheduled the latest Big Tech beating on Capitol Hill and they have signaled it will be filled with Republican red-meat issues.

The official beating will commence March 28 at 10:30 a.m., but it has already begun.

Unlike a recent Senate Judiciary Committee subcommittee hearing that had bipartisan backing, the House hearing notice is filled with partisan shots.

Also Read: Legislator Proposes Social Media Ban

In a joint statement, House E&C chair Cathy McMorris Rodgers (R-Wash.) and Communications Subcommittee chair Bob Latta (R-Ohio) said that the Biden admininstration was colluding with Big Tech and “corrput government officials” to ”to silence voices who dare to question the Left's narrative.”

There was no witness list for the hearing, which was labeled "Preserving Free Speech and Reining in Big Tech Censorship," but McMorris and Latta teased the lineup, saying it would include "several people who’ve been silenced by Big Tech."

That will likely not include former President Donald Trump, though he has opined that his ban from Twitter and Facebook — over issues of disinformation about the election and potential hate speech — was censorship in the sheep’s clothing of content moderation by Big Tech in service of the Democrats’ agenda and with the collusion of the media. ▪️

Citing some of the Justices in the recently argued Gonzalez v. Google, Sen. Richard Blumenthal (D-Conn.), chair of the Senate Judiciary Committee’s Privacy Subcommittee, said that there appears to be an “emerging consensus” that Congress has to do something about what he called an outdated construct that has led to toxic, algorithm-driven content.

He expressed that view in his opening remarks in a hearing on Big Tech and Section 230 prompted by the U.S. Supreme Court oral argument in the case, which revolved around whether social media can be held liable for abetting terrorist speech.

Blumenthal was not sounding much like a Democrat when it came to the argument for a neutral internet, though he was talking about edge providers, not internet service providers. “I think that the time when the internet could be regarded as a kind of neutral, or passive, conduit is long since passed,’ he said.

Gonzalez v. Google revolves around the issue of whether social-media platforms could be held legally liable for aiding and abetting terrorism. The 9th U.S. Circuit Court of Appeals concluded that Section 230 — the provision of the Communications Decency Act of 1996 immunizing social media from civil liability in most cases — generally bars such aiding and abetting claims.

Also: Big Tech Battles Threat to Content Moderation

But with regard to a different complaint, the same court concluded that Google, as well as Twitter and Facebook, could be liable for aiding and abetting terrorism.

The justices seemed to suggest Congress needed to step in to decide what Section 230 should mean in a post-algorithm world — the statute dates from 1996 — given the implications for the operation of the internet if sites began being held liable for suggestions, recommendations or “next ups” under the plaintiff’s argument.

They clearly appeared uncomfortable with trying to set the precedent of what kind of content online platforms should be liable for, with Justice Elana Kagan suggesting that they were not the nine most internet-savvy people around.

"Fifteen years ago, when I was [Connecticut] attorney general dealing with MySpace and Craigslist and many the same issues that we’re confronting today, I said to my staff, ‘We should repeal Section 230,’ ”Blumenthal said. “And they came down on me like a house of bricks and said, ‘Whoa, you can’t repeal Section 230, that’s the Bible of the internet!’ Well, it’s not the Bible of the internet, it’s not the Ten Commandments that have been handed down. It is a construct that is now outdated and outmoded and needs reform.”

Big Tech has been pushing back hard on efforts to reform the section, saying it threatens their business model and would lead to more, not less, censorship — including self-censorship by platforms as a form of self-protection. Tech firms have even been trying to play into Republican fears of censorship of conservative speech.

In a sign of the bipartisan nature of the Section 230 reform movement, Sen. Josh Hawley (R-Mo.), pretty much the political polar opposite of Blumenthal, got a shout-out from the chairman for his work on the issue. In turn, Hawley said the slow progress of possible reform was as much, or perhaps even more, the fault of Republicans as Democrats.

Hawley said the time has come to give parents and kids the basic right to hold Big Tech legally liable for content on their sites.

Protecting ‘Defective Products’

Sen. Amy Klobuchar (D-Minn.) said social-media platforms had for too long been protected by Section 230 from being designed in a way that produced “dangerous and defective products.”

Blumenthal said Congress should make clear what is going on: Big Tech is making big bucks by driving more eyeballs to content the harms of which they are aware. He said they may not want to promote that content, but know that repeating and amplifying it is addicting kids to that content, and with “certain consequences.”

Andrew Sullivan, president of the Internet Society, stood up for Section 230 in his hearing testimony. He said that there was potential to do a lot of harm to the internet by targeting that provision. 

“The broad protections that Section 230 affords are essential for — in the words of that statute — [the] ‘interactivity’ [of] the Internet,” he told the senators. “Simply stated, without the basic protections that Section 230 provides, we would not have the robust engagement of hundreds of millions of Americans in the online conversation, nor would we have the astounding innovation in online services that we have witnessed over the past 25 years.”

But Blumenthal said in closing there should be no doubt that “change is coming,” and that that should be the takeaway from the hearing. ■

A group of congressional Democrats from both the House and Senate have introduced a bill banning the use of facial recognition and similar technologies by the government, which they suggest have been weaponized against minorities by the police.

It is yet another privacy and data-collection volley by Congress against Big Tech, in this case specific tech in the hands of government officials. It also has free speech implications if it is used to stifle protests.

The Facial Recognition and Biometric Technology Moratorium Act comes in response to reports of the growing use of the technologies by local, state and federal agencies, including law enforcement, combined with what the legislators said have been false facial recognition matches, particularly affecting Black men.

Also: Amazon Suspends Sale of Facial Recognition Tech to Police

In introducing the bill, the legislators cited research they said found that Black, Brown and Asian people were “up to 100 times” more likely to be misidentified by such technologies.

“The year is 2023, but we are living through 1984,” said Sen. Ed Markey (D-Mass.), a longtime advocate for tougher privacy laws and one of the lead sponsors of the bill. “The continued proliferation of surveillance tools like facial recognition technologies in our society is deeply disturbing. Biometric data collection poses serious risks of privacy invasion and discrimination, and Americans know they should not have to forgo personal privacy for safety. As we work to make our country more equitable, we cannot ignore the technologies that stand in the way of progress and perpetuate injustice.”

The bill was applauded by the American Civil Liberties Union and Fight for the Future, among others. ■

Some of the largest technology companies are asking the government for money to help the sector weather massive layoffs, a downturn in global venture funding and the shuttering of startups, suggesting without it the U.S. could lose tech leadership.

For example, Google’s net income in the fourth quarter of 2022 was only $13.6 billion compared to $20.6 billion for the same quarter in 2021.

In advance of President Joe Biden’s State of the Union Address on Tuesday (February 7), the Chamber of Progess, whose backers include some of the most biggest big tech compaines around — Amazon, Apple and Google — have written to the president to call for targeted investments in their technologies, including artificial intelligence and connected cars.

They blamed their job cuts on “increase in interest rates, lingering inflation, changes in consumer behavior and the resulting downturn in advertising” and conceded those cuts could have a “crushing” impact on workers, their families and even their health. They also argue that the trickle down from not helping tech boost jobs will be felt by “coffee shops, restaurants and furniture stores” that won't be getting the business of those laid off workers.

The solution, they suggested, warning that without it the U.S. could lose its tech leadership edge: Some government money. “[T]he federal government has a history of making targeted investments to bolster an industry’s stability with the goal of attracting additional private sector capital.”

“To help prevent a worsening economic cycle and to maintain U.S. competitiveness in tech during the current downturn, I urge your Administration to put forward a plan for tech-sector recovery, job growth, and competitiveness,” Chamber of Progress CEO Adam Kovacevich wrote. 

Elsewhere on the “tech tips for the SOTU” front, Information Technology Industry Council president Jason Oxman had some pointers for the president.

Oxman said Biden should ask Congress to look into issues like workforce development, cybersecurity, artificial intelligence, telecom, “high-skilled immigration” and more, as well as urge legislators to get together on national privacy legislation. ■

The Justice Department is apparently giving broadcasters some help with one of their top Washington priorities — Big Tech's dominance as an ad platform.

As expected, the DOJ on Tuesday (January 24) said it was filing an antitrust suit against one of the biggest of Big Tech — Google parent Alphabet — over its online ad practices, a move that could lead to Google divesting its ad business and aid TV stations in what the National Association of Broadcasters has called Big Tech’s “stranglehold” on digital advertising and ad rates.

Attorney General Merrick Garland said Tuesday that the suit was necessary to combat Google's 15-year record of anticompetitive, exclusionary and unlawful conduct in the automated ad tech sector to severely weaken, “if not destroy,” its competitors.

Garland said the U.S., as an advertiser, has incurred damages. The complaint seeks compensation, an injunction against challenged practices and divestitures.

According to CNBC, the suit alleges Google “sought to control all sides of the market,” realizing “it could become ‘the be-all, and end-all location for all ad serving,’ ” to the detriment of broadcast and print competitors for ad dollars and eyeballs.

NAB said, through senior communications strategist Alex Siciliano, that it's carefully reviewing the complaint. "For years, broadcasters have been sounding the alarm over the anti-competitive practices of the Big Tech platforms, including Google. Their dominant role in the marketplace has come at a steep price for local news broadcasters, who lose an estimated $2 billion annually by providing their content to these platforms under ‘take it or leave it’ terms. We continue to work with our congressional allies to address these inequities and urge Congress to move swiftly to level the playing field.” 

Reportedly the states of California, Colorado, Connecticut, New Jersey, New York, Rhode Island, Tennessee and Virginia have joined the suit.

A Google spokesperson told CNBC: “DOJ is doubling down on a flawed argument that would slow innovation, raise advertising fees, and make it harder for thousands of small businesses and publishers to grow.”

It is the second antitrust suit the DOJ has filed against Google. The first was filed under the Trump administration in 2020 and claimed the company unlawfully maintained its search and search advertising monopoly through exclusionary practices. 

Also: Meta's Targeted Ad System Now Under Court Oversight

Earlier this month, Google critic and DOJ antitrust division chief Jonathan Kanter was reportedly cleared by the Justice Department to work on cases involving Google, something Alphabet had opposed given that past criticism.

As founding partner of the Kanter Law Group, his online biography boasted that he was “a leader in the effort to advocate for antitrust enforcement actions against big tech companies by federal and state authorities.”

Big Tech also wanted Biden-appointed Federal Trade Commission chair Lina Khan to have to recuse herself from antitrust-related Big Tech issues given her past criticisms, but that didn’t happen either.

The Computer & Communications Industry Association, whose members include a Who's Who of Big Tech, found the proposed remedies too much to swallow.

“Competition for advertising dollars is fierce both on and offline, growing even more so as the global ad market evolves with new competitors and technology,” it said. “The government’s contention that digital ads aren’t in competition with print, broadcast, and outdoor advertising defies reason.

“As an association that has supported government intervention in appropriate technology cases in the past, we find this lawsuit and the radical structural remedies that it proposes unjustified,” CCIA said. “Digital services are competing vigorously for advertising dollars on screens of all sizes, and the complaint appears to disregard these dynamics as well as the macro trends of the global ad market.”

Ditto the Big Tech-backed and funded trade group the Chamber of Progress, which was not pleased with the suit.

The chamber argued Google is not the dominant ad market platform DOJ supposes. “Google’s online ad market share is now at an all-time low, and it just laid off 12,000 employees in the midst of a declining advertising market —so this DOJ case seems pretty disconnected from economic reality,” said chamber CEO and former Google exec Adam Kovacevich. ▪️

Leveling the playing field with Big Tech is a big policy prerogative for broadcasters according to the National Association of Broadcasters’ most recent policy agenda.

NAB said the dominance of edge provider platforms threatens a free press and broadcasters’ local journalism efforts.

NAB‘s principal beef with Big Tech is that they are the gatekeepers to platforms that broadcasters' content must be available on if they are to remain relevant, but that those same platforms have drained ad dollars from broadcasters while simultaneously undervaluing broadcast content with “take it or leave it” compensation offers.

“Local journalism is now at risk due to this unchecked competitive power held by a handful of dominant digital players,” NAB said. “[B]roadcasters continue to be subject to outdated rules restricting their scale and scope, making it even more difficult to compete with digital behemoths, which are allowed unregulated and unfettered growth.”

NAB said the help it needs from Washington is broadcast ownership deregulation and a break on the regulatory fees the FCC assesses on them but not on its Big Tech competition. ■

A group of technology associations has joined forces to tell the Supreme Court that Google and others should have the right to moderate online content. To treat such moderation as an endorsement rather than an organizing function would be a big mistake, they added, because it would strip away the “publisher immunity” that is an essential element of interactive media, including video streaming.

How Big Tech moderates content — and whether the law exempting social-media platforms from civil liability for most third-party content needs to be modified — is a hot-button issue across Washington, from the White House to the Capitol.

The Computer & Communications Industry Association joined with NetChoice, the Digital Media Association, the Information Technology Industry Council, the Interactive Advertising Bureau, and TechNet to file an amicus brief with the court in advance of next month's oral argument in Gonzalez v. Google. The outcome of that case could affect what online users get to see in their video or social media feeds, the groups said.

Also: Supreme Court To Weigh In on Section 230

Gonzalez v. Google revolves around the issue of whether social media platforms could be held legally liable for aiding and abetting terrorism. The 9th U.S. Circuit Court of Appeals concluded that Section 230 — the provision of the Communications Decency Act of 1996 immunizing social media from civil liability in most cases — generally bars such aiding and abetting claims.

But with regard to a different complaint, the same court concluded that Google, as well as Twitter and Facebook, could be liable for aiding and abetting terrorism.

The Supreme Court agreed to step in to resolve that dichotomy, as CCIA and the others would like, in favor of Section 230 immunity, which means upholding the court's decision in Gonzalez that Section 230 immunity protected Google.

The brief argues that the core of what the companies’ digital services do — including advertising and streaming media services — is organizing content for users in a “useful way.”

It is that internet-essential organizational function, a “publisher immunity’ that is central to the benefits of interactive media, that Section 230 protects, the companies told the court.

Tech firms conceded such organization has been a challenge — which may be the understatement of the new year — but to treat that organization as an endorsement of the speech unprotected by Section 230 would render that provision meaningless and “leave many digital services less usable and less useful.”

That argument could fall on some deaf ears in Congress and on Pennsylvania Avenue, where President Joe Biden and some high-profile Democrats have argued for curtailing or eliminating Section 230. But it’s the high court that Big Tech needs to persuade in this instance.

“No one wants to see extremist content on digital platforms — especially the services themselves," CCIA president Matt Schruers said in his group’s defense of Section 230. “The question is how we achieve that. Section 230 is what allows companies to develop systems and processes to remove dangerous content, and any precedent that ties companies’ hands when it comes to protecting users will result in a more dangerous and less trustworthy internet.” ■

President Joe Biden took to the pages of The Wall Street Journal to launch a sweeping attack on Big Tech, saying the government needs to step in.

In his op-ed for the newspaper, the president took aim at “some” Big Tech players — he did not name names — saying they “exploit our most personal data, deepen extremism and polarization in our country, tilt our economy’s playing field, violate the civil rights of women and minorities, and even put our children at risk.”

Biden said social-media companies have to be held accountable "for the experiment they are running on our children for profit.”

His predecessor, Donald Trump, also wanted to crack down on social media and reform Section 230 of the Communications Decency Act, the provision that makes users of social-media platforms immune from civil liability for third-party content, but that was primarily over what he saw as its bias against him and censorship of conservative speech.

Also: Trump Preps Social Media Executive Order

Biden blamed the internet for allowing “abusive and even criminal conduct, like cyberstalking, child sexual exploitation, nonconsensual pornography and sales of dangerous drugs.”

As for their business practices, he said Big Tech had “elbowed mom-and-pop businesses out from their platforms, disadvantaged them, or charged them outlandish prices, making it harder for them to compete and grow, and thereby stifling innovation.”

The president outlined a three-pronged approach to reform: 1) federal privacy protections, including the government preventing some kinds of data collection; 2) reforming Section 230; and 3) preventing Big Tech companies from getting too big.

Biden called for bipartisan congressional action. “It’s time to walk the walk and get something done.”

At least on the issues of federal privacy legislation and Section 230 reform, the president had a supporter in new House Energy & Commerce Committee chair Cathy McMorris Rodgers (R-Wash.), though she suggested a previous executive order on the Big Tech issue was out of bounds.

In a statement responding to Biden’s op-ed, she said: “President Biden is correct to acknowledge the risks posed by Big Tech for Americans. Rather than trying to address these harms unilaterally through executive action and contorting authority, the administration needs to work with Congress to enact comprehensive privacy protections through one national privacy standard that protects all Americans, especially our kids.”

McMorris Rodgers also said she would continue to look for a way to reform Section 230 to “ensure Big Tech is encouraging more free speech on their platforms, not less.” ■

With House Republicans preparing to take over committee gavels as soon as Rep. Kevin McCarthy (R-Calif.) — or someone else — is voted in as speaker, the House Energy & Commerce Committee is signaling that holding the “destructive” force of big tech to account will be a priority.

That’s no big surprise, since reining in edge providers was a bipartisan focus in the last Congress, though how to do it and why it was necessarily divided along party lines.

The House Energy & Commerce Committee website Tuesday (January 3) featured prominently a section on the committee leadership’s “Big Tech Accountability Platform,” and it did not bury the lead. “Big Tech Is Harming Our Children” it read, followed by a quote from new committee chair Cathy McMorris Rodgers:

“You’ve broken my trust. Yes, because you’ve failed to promote the battle of ideas and free speech. Yes, because you censor political viewpoints you disagree with. Those polarizing actions matter for democracy. But do you know what has convinced me Big Tech is a destructive force? It’s how you’ve abused your power to manipulate and harm our children.”

McMorris Rodgers (R-Wash.) unveiled that Big Tech Accountability Platform a year ago, but she was in the minority. Now she has the gavel, or will as soon as a speaker is chosen, and has made that platform front and center on the committee website. ■

Former President Donald Trump has issued a manifesto against online content moderation, pledging if he is re-elected to try and eliminate efforts to weed out misinformation and disinformation, and support allowing adults (over 18) to opt out of any content moderation of social media platforms whatsoever.

That came in a six-minute video Trump emailed to supporters Friday (December 23).

Trump called it a “plan to shatter the left-wing censorship regime,” which he said was composed of “a sinister group of deep state bureaucrats, Silicon Valley tyrants, left-wing activists and depraved corporate news media” that he said had been conspiring “to manipulate and silence the American people.”

Trump appeared to have been fired up by Elon Musk’s release of Twitter documents related to the company's efforts to weed out misinformation and disinformation, which Trump alluded to as “bombshell reports.”

Also: Donald Trump Threatens More Lawsuits Against Media

He called those trying to prevent online disinformation a cartel that had collaborated to suppress vital information on “everything from elections to public health,” a cartel he said had to be “destroyed.”

Trump said that if he is re-elected he would issue executive orders banning any government effort to work with online platforms “to impede lawful speech.” He said no federal money would be used to help label speech as misinformation or disinformation.

Trump was banned from Twitter for spreading false information about widespread election corruption.

He said he launched a hunt to find and fire any government official who had “engaged in domestic censorship,” whether directly or indirectly.

He said he would order the Department of Justice to launch an investigation of what he called the “online censorship regime” and prosecute a host of civil, criminal or constitutional “offenses.”

Trump said he would ask Congress to revise Section 230, which currently provides online platforms immunity from civil prosecution for third-party content. He said to get Big Tech out of the censorship business, that immunity should only apply if they meet "high standards of neutrality, transparency, fairness and nondiscrimination."

“We need to break up the entire toxic censorship industry that has arisen under the false guise of tackling so-called mis- and disinformation,” including by refusing to fund any nonprofit or university trying to identify and weed out misinformation and disinformation. He said any university found to be doing so should not get federal funding and their students should not get federal loans for at least seven years.

Trump suggested that online platforms were being “infiltrated” by former government deep-staters, including intelligence officials, so he would call for a seven-year period before any employee of various security agencies could take a job at “a company possessing vast quantities of user data.”

He also called for a digital bill of rights, but one very different from the kind Democrats have long espoused. He said that would include a right to due process, which meant government officials would need a court order to take down online content, “not send information requests, much as the FBI was sending to Twitter.”

Trump said all users over 18 should have “the right” to “opt out of all content moderation entirely” and receive an “unmanipulated stream of information if they so choose.” ■

NetChoice, whose members include some of the biggest of Big Tech -- Amazon, Google, Meta (Facebook) -- is behind a TV ad that sounds and looks more like a Donald Trump attack on his political opponents and the coverage he receives in the media, rather than leading-edge online companies more often allied with the liberals the ad is attacking.

The association has been fighting hard against a bill, the Journalism Competition & Preservation Act (JCPA), which is designed to give creators of original news content, like local broadcasters, more leverage over compensation for their content's re-use online.

"The Washington liberals have a dangerous plan to bail out their allies in the [liberal] media," the TV ad warns ominously.

Also: Big Tech Says JCPA Benefits Big Broadcasters

It says "the left's" new internet regulation would "threaten access to reliable information online and silence conservative voices." That is the knock those conservative voices have on Big Tech, arguing that they are the ones in league with liberals.

The add pictures Sens. Chuck Schumer (D-N.Y.), independent Bernie Sanders of Vermont and President Biden and suggests they are behind the "dangerous plan" but were "too afraid" to push that "radical agenda" before the election, which is why Americans don't trust politicians, it intones.

NetChoice calls on the audience to press Senate conservatives to oppose the bill.

"The JCPA threatens an independent media by providing specific news outlets with government privileges that will likely increase the government’s ability to pressure such outlets on editorial decisions," says NetChoice President Steve DelBianco. ■

The House Energy & Commerce Committee voted 28-23 along party lines not to recommend a Republican-backed resolution of inquiry to the full House. The resolution called out the Biden administration for alleged coordination with social media companies to censor speech and sought documents related to that alleged effort.

But while the resolution failed, it signaled what Republicans could be focusing on when they take over House chairmanships next month.

In what was likely the last committee gathering and action in this Congress, and before Republicans take over with pledges of vigorous oversight and investigation of the administration and Big Tech, committee chairman Rep. Frank Pallone Jr. (D-N.J.) called it an out-of-touch, frivolous and partisan inquiry that was in contrast to the committee’s productive work that preceded it.

The resolution was driven in part by new Twitter owner Elon Musk’s release of internal documents he claims support allegations of shadow-banning conservatives.

Committee ranking member Cathy McMorris Rodgers (R-Wash.) countered that the inquiry was necessary and about “putting people before politics.” She said for years Big Tech had been flagging, suppressing and “outright banning conservatives on their platforms.”

She said Big Tech had denied accusations of such conduct, including before the committee. “Now, thanks to the recent Twitter files, we know that they were not being honest.” She said the documents showed that Twitter executives were shadow-banning conservatives despite then-Twitter CEO Jack Dorsey’s claims to the contrary.

Rep. Anna Eshoo (D-Calif.) called the effort misguided and a poor use of the committee's time. ▪️

Following Elon Musk's internal Twitter file dump, which Republicans see as a smoking gun and Democrats as a bit of a dud, Republican Sen. Roger Wicker (Miss.), ranking member of the Senate Commerce Committee, is calling its chair to hold a hearing on the state of free speech on social media, and do it before the current Congress closes its doors.

In a letter to Committee Chairman Maria Cantwell (D-Wash.) a copy of which was supplied by Wicker's office, the senator said the Twitter documents suggest the company has been coordinating with the Biden Administration to censor posts.

The Administration has been reaching out to social media on what it sees as insufficient monitoring of speech on their platforms encouraging hate and violence, as well as disinformation, the definition of which -- including particularly in this case as it relates to the infamous Hunter Biden laptop story -- is at the crux of the divide between Republicans and Democrats, both of which have bones to pick with Big Tech.

Also: Wicker Says Commerce Will Review Section 230

"Two years ago, the chief executive officers of Google, Facebook, and Twitter testified before the Senate Commerce Committee (the Committee) and promised to implement changes that would build trust and increase transparency in their content moderation practices.  Instead, the leaders of these tech giants have only increased enforcement actions against prominent political voices online while continuing to elude accountability," Wicker wrote Cantwell.

Republicans say going after disinformation online is just a cover for censoring conservative speakers by liberal Silicon Valley.

Wicker said it had been two years since the full committee held a hearing on "how to preserve the internet as a forum for open discourse," and that it was past time to follow up. "Some of our colleagues and I have long suspected that Twitter and Facebook acted arbitrarily to censor a New York Post story critical of Hunter Biden that may have affected the outcome of the 2020 election," he said, adding that intervening info supports that conclusion and not the social media company's justification that they were trying to prevent Russian misinformation.

"After the release of the 'Twitter Files,' we now know Twitter was removing content at the request of the Biden campaign," Wicker claimed.

He pointed out that legislation he has backed that would limit the social media giant's ability to remove content (by revising the Section 230 immunity social media sites have from civil liability for third-party content) and create non-discrimination rules and greater transparency around content moderation hasn't gotten anywhere due to "stiff resistance" from the committee. ■

A bipartisan Senate duo looked this week to put a spotlight on legislation, the Kids Online Safety Act (KOSA), that would crack down on Big Tech. They are trying to get the bill passed in the waning, lame-duck days of the current session of Congress.

Sens. Richard Blumenthal (D-Conn.) and Marsha Blackburn (R-Tenn.), chair and ranking member, respectively, of the Senate Commerce Subcommittee on Consumer Protection, Product Safety and Data Security, met this week with young people and parents of young people they said had “died or were harmed” due to social media.

For example, one of the people they met with was the mother of a girl who died of fentanyl poisoning “from drugs she and a friend purchased from a dealer they used Facebook to find,” Blumenthal’s office said. He is co-sponsor of the bill.

Also: Kids Online Protection Bill Introduced

S. 3663, the Kids Online Safety Act, passed unanimously in the Senate Commerce Committee last July. It would attempt to protect children's online mental health, including addressing issues like body image, eating disorders, substance abuse, and suicide.

Blumenthal and Blackburn led hearings on issues surrounding social media and its impact on children.

The result was the bill, which:

1. “Requires that social media platforms provide minors with options to protect their information, disable addictive product features, and opt out of algorithmic recommendations. Platforms would be required to enable the strongest settings by default.
2. “Gives parents new controls to help support their children and identify harmful behaviors, and provides parents and children with a dedicated channel to report harms to kids to the platform.
3. “Creates a responsibility for social media platforms to prevent and mitigate harms to minors, such as promotion of self-harm, suicide, eating disorders, substance abuse, sexual exploitation, and unlawful products for minors (e.g. gambling and alcohol).
4. “Requires social media platforms to perform an annual independent audit that assesses the risks to minors, their compliance with this legislation, and whether the platform is taking meaningful steps to prevent those harms.
5. “Provides academic and public interest organizations with access to critical datasets from social media platforms to foster research regarding harms to the safety and well-being of minors.”

Also: Blumenthal Says Facebook Weaponizes Childhood Suffering

“The [legislation] will hold social media companies accountable and establish a duty of care for protecting children online,” Parents Television & Media Council president Tim Winter said in July. ▪️

The association representing Big Tech says that free speech will be increasingly under attack from state legislatures that, after the midterms, will be controlled by one party.

Both Democrats and Republicans are concerned about edge provider content moderation, though they disagree on the problem and the solution.

Democrats say the issue is that not enough hate speech is being restricted while Republicans say that the problem is liberal-leaning social media sites censoring conservative speech in the name of restricting hate speech.

Also: Privacy Bill Could Turn Off Targeted Advertising

The Computer & Communications Industry Association, whose members include Facebook, Twitter, Amazon and Google, this week released a summery of what it called the state content moderation landscape.

That included the observation that in only the past year, 250 bills to regulate content on online platforms have been introduced, including legislation in California, New York, Texas, D.C., Florida, Georgia, Minnesota, Utah, and South Carolina.

CCIA says that "many of the bills are unconstitutional, conflict with federal law including Section 230, and would place major barriers on digital services' abilities to restrict dangerous content on their platforms."

CCIA says many of the bills conflict with Section 230 of the Communications Decency Act that gives them protection from liability over third-party posts on their social media platforms, a protection national legislators from both parties have suggested needs to be modified or eliminated.

Federal privacy legislation could reduce the threat by preempting state efforts, but that is a long-shot in what will be a divided Congress in the New Year.

"As states convene legislative sessions in 2023, they’ll be doing so in a unique environment," says CCIA State Policy Director Khara Boender. "As a result of the midterm elections, a larger number of states will have one party controlling both chambers of the legislature in addition to the governor's seat. This, coupled with an increased interest in content moderation issues – on both sides of the aisle – leads us to believe this will be an increasingly hot topic." ■

The Biden administration is telling the Federal Trade Commission that while potential privacy legislation is good, it is no reason not to aggressively pursue regulations, including “abandoning” the notice and choice approach to Big Tech’s use of consumer data.

That came in the National Telecommunications & Information Administration’s comments to the FTC in its ongoing privacy regulation rulemaking proceeding.

FTC chair Lina Khan — who, unlike the FCC, has a Democratic majority to work with — has made it clear she thinks Big Tech’s privacy practices need more government oversight.

“The significant presence of potential federal legislation in consumer privacy reform discussions does not obviate the importance of the FTC’s efforts to adopt strong, comprehensive rules governing commercial surveillance and data security,” NTIA told the commission.

“The complexities and pace of today’s digital world long ago outpaced what notice and transparency can accomplish as a predominant focus of privacy policy, and they cannot be the primary bulwark against invasive or unfair data practices,” the agency said.

As part of that shift in approach, NTIA said, the FTC should also shift the burden on mitigating privacy risks from individuals to businesses. One way to achieve that would be to adopt tough new limits on the purposes data can be used for.

NTIA also said the FTC needs to require companies to minimize the data they collect and restrict them from gathering data for one purpose and using it for another — like for targeted ads, to better protect children — and consider restricting facial recognition technologies. ▪️

Computer companies and edge providers are asking the U.S. Supreme Court to weigh in on the issue of whether state governments can impose what the Computer & Communications Industry Association (CCIA) is branding must-carry for online platforms and a "road map" for those wishing to fill the internet with offensive content edge providers would have to carry.

Cable operators have long been subject to must-carry rules governing carriage of broadcast stations, carriage those operators have also argued is compelled speech that violates the First Amendment, though those rules remain on the books.

CCIA and NetChoice, whose members include Amazon, Apple, Google, Facebook, and many others, have been making the same argument against a Florida law that made platforms liable for third-party speech.

On Monday (October 24), they filed a petition with the High Court asking it to rule on the constitutional issues after the State of Florida did the same.

The 11th U.S. Circuit Court of Appeals last May upheld a lower court's injunction against the enforcement of provisions in the law that restrict social media platforms' ability to moderate content while the underlying issue made its way through the courts. That court suggested Big Tech was likely to win on its First Amendment arguments.

But that appeals court left in place content moderation disclosure obligations computer companies say are unnecessarily, and unconstitutionally, burdensome to speech and hope the Supreme Court agrees with them.

The law was the product of a Republican-controlled legislature. Republicans have argued that Silicon Valley giants have attempted to suppress conservative speech in the guise of moderating their platforms and under the protection of Section 230 of the Communications Decency Act, which exempts them from civil liability over most of that third-party content.

Asserting that “social media platforms have unfairly censored, shadow-banned, deplatformed and applied post-prioritization algorithms to Floridians,” the law removed that Section 230 civil liability protection for content on Big Tech platforms — like Facebook or Twitter — that violated the law, including allowing for monetary damages up to $250,000 per day for deplatforming political candidates for statewide office and $25,000 for non-statewide offices.

That law, including the reporting obligations, “abridges websites’ editorial decisions and imposes crippling ‘disclosure’ obligations, forcing websites to explain each of the countless decisions they must make every day,” the CCIA/NetChoice petition said. “Such compelled obligations not only inflict enormous compliance burdens, but would provide a roadmap for those wishing to evade efforts to eliminate offensive content.” ▪️

A new paper commissioned by INCOMPAS quantifies the investment of the tech industry, particularly by streaming services, in internet infrastructure and pegs it at a whopping $833 billion over the past decade, saying that saved internet-service providers billions of dollars.

The Computer & Communications Industry Association, whose members include Amazon, Apple, Google and Facebook, also provided support for the report, conducted by Analysys Mason.

The report comes as Big Tech is under pressure around the world to pony up network usage fees. In the U.S., some want edge providers to pay regulatory fees to the Federal Communications Commission, pointing to the benefit they get from broadband infrastructure and suggesting they have done so without sufficiently paying for the privilege.

The report says otherwise and adds that such usage fees could disrupt the internet ecosystem. "We find that the imposition of network usage fees would risk creating barriers to entry and growth for smaller and new CAPs [content and application providers]," it asserts.

The report documents that attempts by telecom network owners to "extract" payments from online services are unfounded and misguided, CCIA president Matt Schruers said.

The report suggests that investments by streaming services and others to get traffic closer to end users saves ISPs up to $6.4 billion per year.

"INCOMPAS and the authors of this study have now proven what we already knew: Content delivery and edge internet services have always paid to build out of the network, both through subscriptions to broadband providers and their own investments in network infrastructure," Public Knowledge president Chris Lewis said. "Any calls for network user fees is simply an effort to charge these companies twice to give internet users the content they are also paying to access." ■

Calling it part of the President's effort to "hold Big Tech accountable," the White House has issued what it calls a blueprint for an AI Bill of Rights for applying equity and "ethical forethought" to the design of algorithms in the face of what it called the threat from unchecked automated systems.

The Biden Administration also outlined steps the government is taking toward a more equitable and accountable system, including pointing out that the Federal Trade Commission was "exploring rules to curb commercial surveillance, algorithmic discrimination, and lax data security practices that could violate section 5 of the FTC Act."

Also: FTC Poised to Crack Down on Child-Directed Ads

The White House is framing the issue as one of civil rights in a digital age, in the process painting a damning picture of current Big Tech algorithmic practices.

"Algorithms used across many sectors are plagued by bias and discrimination," the White House said, "and too often developed without regard to their real-world consequences and without the input of the people who will have to live with their results."

It said those problems have been dramatically increasing in recent years, threatening the rights of millions, particularly in marginalized communities.

The Bill of Rights comprise:

1. "Safe and Effective Systems: You should be protected from unsafe or ineffective systems.

2. "Algorithmic Discrimination Protections: You should not face discrimination by algorithms and systems should be used and designed in an equitable way.

3. "Data Privacy: You should be protected from abusive data practices via built-in protections and you should have agency over how data about you is used.

4. "Notice and Explanation: You should know when an automated system is being used and understand how and why it contributes to outcomes that impact you.

5. "Human Alternatives, Consideration, and Fallback: You should be able to opt out, where appropriate, and have access to a person who can quickly consider and remedy problems you encounter."

The White House wants equity to drive the design process of algorithms, not be addressed down the line when problems emerge "downstream."

The Administration said the rights were the product of a year-long process stemming from panel discussions, listening sessions and a formal request for information (RFI).

According to the White House, the takeaway from nearly everyone it talked to, including CEOs, entrepreneurs and software engineers, was that there was a "profound eagerness for clear federal leadership and guidelines to protect the public." ▪️

Edge providers have asked a U.S. appeals court to block the implementation of a Texas law that regulates how those platforms can moderate their content, a move the computer companies frame as an existential threat to their business models.

That motion of stay filed en banc (full court) with the 5th U.S. Circuit Court of Appeals was filed by the Computer & Communications Industry Association and NetChoice, whose members include Facebook (Meta), Google, Twitter and Amazon, among many others, after a panel of the same court paved the way for the law’s implementation.

That panel two weeks ago ruled that corporations do not have a “freewheeling First Amendment right to censor what people say,” and thus has paved the way for the Texas law (HB 20), which restricts how social-media giants moderate their content. 

Also: Court Told Texas Law Would Wreck Online Ad Platforms

The law, which passed a Republican-controlled legislature last year, “prohibits an interactive computer service from censoring a user, a user’s expression, or a user's ability to receive the expression of another person based on … the viewpoint of the user or another person.” It also requires large social media platforms like Facebook and Twitter to disclose how they manage content, to publish an acceptable-use policy that users can find telling them what content is acceptable, to publish quarterly transparency reports and to have a complaint system in place.

The Supreme Court had stayed the implementation of the law until a three-judge panel of the 5th Circuit made that decision. Now that the panel has weighed in, though, the law can take effect unless the 5th Circuit agrees to the CCIA/NetChoice stay request.

CCIA and NetChoice said they will appeal the panel decision to the Supreme Court, which they say is likely to hear it because it involves issues of great importance and because different appeals courts have ruled differently on the issue. Resolving such circuit splits is one of the reasons the Supreme Court agrees to hear appeals.

“Granting a stay will prevent irreparable harm to Plaintiffs’ member companies while the Supreme Court reviews the vital constitutional issues raised by legislation such as HB20,” they told the full 5th Circuit. “The majority opinion in this case creates a clear circuit split with the [11th U.S. Circuit Court of Appeals] and misapplies the Supreme Court’s important First Amendment precedents.”

In a separate case, CCIA and NetChoice point out, the 11th U.S. Circuit ruled that websites have a First Amendment right to decide what speech they publish and their reasons for doing so, or not doing so.

The Supreme Court this week signaled it thinks the issue of online content moderation is one of great importance, agreeing to hear appeals of two decisions relating to the moderation of terrorist-related speech on social media.

Internet advertisers and others filed a friend of the court brief at the Supreme Court in support of NetChoice and the CCIA back when that court was staying the initial decision. Those advertisers and others said the law will irreparably damage online platforms as advertising vehicles.

“Forcing private companies to give equal treatment to all viewpoints on their platforms places foreign propaganda and extremism on equal footing with decent Internet users, and places Americans at risk,” CCIA president Matt Schruers has said of the law. “ ‘God Bless America’ and ‘Death to America’ are both viewpoints, and it is unwise and unconstitutional for the State of Texas to compel a private business to treat those the same.”

In fact, those computer companies have likened the law to the FCC’s Fairness Doctrine, which once imposed an affirmative obligation on broadcasters to present issues of public importance and to seek out opposing viewpoints on those issues. The demise of the doctrine in the 1980s is credited with giving rise to the conservative talk-radio boom. ▪️

The Senate Judiciary Committee has favorably reported the Journalism Competition and Preservation Act (S. 673) to the Senate for a vote, potentially paving the way for broadcasters, newspapers and other journalism creators to share in the revenue their original news content generates for Big Tech platforms.

That came at a business session Thursday (Sept. 22).

The bill, which creates a limited antitrust exemption to allow publishers to collectively negotiate with the largest platforms such as Google or Meta (Facebook), has been modified to clarify that it is about fair compensation for news creators, not what content should or should not be on those platforms.

The measure also provides for outside arbitration if deals can’t be struck.

There is plenty of bipartisan support for the bill, which was able to bring together Sens. Amy Klobuchar (D-Minn.) and Ted Cruz (R-Tex.), who forced the issue on clarifying the bill was not about content, but compensation.

Klobuchar, who worked with Cruz and the bill's lead Republican, Sen. John Kennedy (R-La.), said the bill was never intended to be about negotiating for payment, not for content type. Cruz, though, had been concerned that the bill would allow Google or Facebook to include which type of content they would have on their platforms. Cruz and other Republicans have long argued that Big Tech uses its power to favor liberal content while censoring conservative voices.

She said the bill as approved Thursday (Sept. 22) now makes it clear that “discussions about content are outside of the scope of the bill, and of the bill's narrow antitrust safe harbor.”

“This bill bars Big Tech firms from throttling, filtering, suppressing or curating online content while providing local news outlets with a fair playing field to negotiate against these censorship giants,” Kennedy said.

But not all the senators were praising the final result.

Also: DOJ’s Jonathan Kanter Says Big Tech Needs Antitrust Mole Whacking

Sen. Alex Padilla, a Democrat from Silicon Valley's home state of California, had a number of issues. Top among them, or at least the first he raised before the vote, was that the money secured by broadcasters and other original content creators might not go to the workers, but instead to stock buybacks and executive salaries.

The bill was adjusted to toughen the reporting requirements, which he had asked for, but he said those were still only reporting obligations. Then there was the issue of content. He said the bill was still about content, since its prohibition on Big Tech platforms taking content into consideration in negotiations meant they could be subsidizing disinformation and hate speech on outlets with which they fundamentally disagree. He also argued that the bill would compel payments for “foundational” features of the internet, such as aggregating, crawling or indexing.
Sen. Mike Lee (R-Utah) also had plenty of discouraging words. He said the fundamental flaw in the bill was that it was trying to boost competition by sanctioning the creation of cartels, cartels that antitrust laws “go out of their way to prohibit.” In protesting the bill, computer companies repeatedly called it a cartel creator.

Also: Big Tech Says Media Antitrust Exemption Would Create News Cartels

Lee also said that if the goal was to get new content creators out of the big shadow of Big Tech, it instead tied them financially to the “monopoly rents” of those platforms.

Those concerns notwithstanding, the majority of committee members, Democrats and Republicans, backed the bill and it is headed to the Senate for a vote. ▪️

Big Tech is beating up on broadcast consolidation as it pushes back on a bill that would give broadcasters and other original news creators an antitrust exemption to negotiate with the tech giants that leverage that original content online.

The Computer and Communications Industry Association issued a pull-no-punches statement— the term “cartel” was used multiple times — following the Senate Judiciary Committee’s favorable referral of the Journalism Competition and Preservation Act (S. 673) to the Senate for a vote.

The CCIA said the bill would create a “news cartel” while failing to solve the issue of compensation for original news creation.

Also: Big Tech Says Bill Benefits Big Broadcasters

The bill gives “news content creators” — print, broadcast or digital — an antitrust safe harbor to negotiate collectively with digital platforms like Facebook and Google for carriage of their original content.

While the idea behind the bill is that Big Tech is so big that broadcasters need the scale of joint negotiations to get fair compensation, the CCIA suggested the concentration shoe was on the other foot. “The Computer & Communications Industry Association has defended competition in the marketplace for 50 years and fought media consolidation and mergers including Comcast-NBC and Sinclair-Tribune,” it said.

Also: NAB Praises Progress on Big Tech Bill

“The JCPA continues to be an unprecedented government overreach,” CCIA president Matt Schruers said. “It encourages the creation of a media cartel which will impose link taxes, and it threatens to hamstring digital services’ efforts to moderate dangerous content with ‘must-carry’ obligations.

“While objective journalism is critical to informing voters, inserting federal regulators into private sector business negotiations, mandating carriage of what the government thinks is ‘news,’ and promoting cartels is an irresponsible way to encourage an independent and robust news media,“ Schruers added. ■

Big Tech is a threat to liberty and a big mole that needs whacking, a la the arcade game where the object is to bash as many of them on the head as is possible. That was the message of the Justice Department’s antitrust chief in a fiery speech to the Fordham Competition Law Institute’s 49th Annual Conference on International Antitrust Law and Policy Friday (Sept. 16) in New York.

Assistant Attorney General Jonathan Kanter, who heads the Justice Department's Enforcement Division, told his audience that the digital economy has produced massive monopolists that have the means to exploit their power “more threatening to individual freedom than ever before.”

The goal of regulators, he said, must be to “unplug the monopolization machine in digital platform industries.”

Those regulators are, principally, the Justice Department and Federal Trade Commission, both of which vet mergers. The FTC is also charged with preventing unfair and deceptive business practices and violations of privacy policies.

Also: FTC Signals Imposing Rules Targeting Commercial Surveillance

Using the Whack-a-mole analogy, Kanter said that abuse of power by digital actors is a constant threat. “If we answer one practice, another arises,“ he said. ”If we address one behavior in one adjacent market, monopoly power may be used to extend the moat further around it.”

Kanter said such monopoly power has not been seen in 100 years, meaning the Standard Oil trust that was broken up by the government in the early 20th century.

He had some suggestions for whacking the Big Tech moles more effectively.
Those included better understanding how such monopolies operate and “all of the mutually-reinforcing strategies that protect the monopoly.” Borrowing another analogy, he said, “If we spend a year examining a single tree, no matter how effectively, we will never have a sense of the forest.”

Another suggestion was not to underenforce for fear of over-enforcing. “Monopolies do not self-correct,“ Kanter said. “We have all seen that in digital markets, monopolies self-sustain. Platforms that are fundamentally collaborative become critical trading partners for entire industries, and without competition have greater power to discourage rivalry. I therefore believe we can no longer be so cautious to avoid overenforcement that we intentionally underenforce the law. 

“At the Antitrust Division, we have moved past the error-cost error,“ he added. ”We have been too limited by a self-imposed requirement that we use our most powerful microscopes to examine an exclusionary act before intervening to stop it. We need a wider lens and a greater willingness to pursue and remedy all of the harmful behaviors that make up an exclusionary course of conduct."

The DOJ needs to stop mergers that “tend to create a monopoly,” Kanter said, or that will lead to underenforcement that entrenches market power.

Currently, mergers under a certain size do not trigger rigorous antitrust review. Justice and the FTC are both taking a fresh look at whether that policy has allowed Big Tech to buy up to monopoly by purchasing potential competitors before they get large enough to trigger such reviews.

Also: Sponsors Urge Action on Big Tech Competition Bill

Finally, Kanter put in a plug for the American Innovation and Choice Online Act.

The bill was introduced back in October 2021 by Sen. Any Klobuchar (D-Wis.), chair of the Senate Antitrust Subcommittee and a self-described leading antitrust reformer, and Republican Sen. Chuck Grassley (R-Iowa), the ranking member, who joined Klobuchar at the press conference to press for a vote.

The bill would prevent an online platform from: 1) keeping one business from interoperating with a dominant platform of another business; 2) requiring a business to buy a dominant platform’s products or services in order to get preferred placement; 3) “misusing” a business’s data to compete against it; and 4) biasing search in its favor.

The bill’s targets are chiefly Google, Amazon and Apple, all members of the Computer & Communications Industry Association, which is funding an ad campaign opposing the bill that has blanketed the D.C. airwaves in recent months.

“[L]egislation will be a critical tool to discourage a wide range of exclusionary practices and give would-be competitors confidence that they are protected from retaliation,” Kanter said of the bill. ■

In a loss for Big Tech and its ad base, a federal appeals court has concluded that corporations do not have a “freewheeling First Amendment right to censor what people say,” and so has paved the way for a Texas law (HB 20) that restricts how social media giants moderate their content.

The law, which passed a Republican-controlled legislature last year, “prohibits an interactive computer service from censoring a user, a user’s expression, or a user's ability to receive the expression of another person based on … the viewpoint of the user or another person.” It also requires large social media platforms like Facebook and Twitter to disclose how they manage content, to publish an acceptable-use policy that users can find telling them what content is acceptable, to publish quarterly transparency reports and to have a complaint system in place.

In May, a three-judge panel of the 5th U.S. Circuit Court of Appeals, in a split 2-1 decision, reversed a lower court opinion and lifted a preliminary injunction against the law. On appeal from the Computer & Communications Industry Association and NetChoice, the Supreme Court reinstated the stay until the 5th Circuit rendered its decision on the underlying case, which it did Friday (Sept. 16).

CCIA and NetChoice argue the law is unconstitutional on its face and that the law puts all speech, including hate speech, on the same footing, but the Fifth Circuit clearly disagreed.

Also: Supreme Court Stays Texas Social Media Law

”In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment,” the court ruled. That amendment, of course, protects every person’s right to freedom of speech. But the platforms argue that “buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech," the three-judge panel concluded.

The CCIA was not pleased. 

“We strongly disagree with the court’s decision,” CCIA president Matt Schruers said. "Forcing private companies to give equal treatment to all viewpoints on their platforms places foreign propaganda and extremism on equal footing with decent Internet users, and places Americans at risk. ‘God Bless America’ and ‘Death to America’ are both viewpoints, and it is unwise and unconstitutional for the State of Texas to compel a private business to treat those the same.”

Computer companies have likened the law to the FCC’s Fairness Doctrine, which once imposed an affirmative obligation on broadcasters to present issues of public importance and to seek out opposing viewpoints on those issues. The demise of the doctrine in the 1980s is credited with giving rise to the conservative talk-radio boom.

Internet advertisers and others filed a friend of the court brief at the Supreme Court in support of NetChoice and the CCIA, agreeing that the law say will irreparably damage online platforms as advertising vehicles.

They said HB 20 “will result in the wholesale lifting of content moderation. The resulting deluge of hate speech, graphic images and video, and vile content of all forms is not what users want,” and will “irredeemably harm those platforms’ goodwill and reputations.” 

Republican commissioner Brendan Carr, who is a big critic of Big Tech, applauded the decision. 

“The Fifth Circuit has rightly rejected Big Tech’s claim to muzzle other peoples’ political speech without any check, turning aside what the court described a,'" he said. "This is a significant, pro-speech win that will promote a diversity of viewpoints."■

Republican leaders on the powerful Energy & Commerce Committee have officially written to complain to the White House about what they say are its attempts "to pressure private companies like Twitter and Facebook to censor certain speech or silence individuals." They want the Biden Administration to provide the committee with its communications with Big Tech.

That came after the release of some communications showing the White House sought to have what it considered disinformation removed from social media platforms.

The Republicans saw it differently. "The information revealed shows how quick Big Tech is to censor Americans to appease their Democrat allies in the White House," they told the White House.

Also: White House Issues Core Principles for Big Tech Reform

The Republicans first gave a copy of the letter seeking those communications to the New York Post, which is co-owned with Fox News, whose commentators have been critical of the Administration efforts to either crack down on misinformation and disinformation, as Democrats see it, or censor conservative critics, as Republicans allege.

"We know that administration officials and federal bureaucrats requested these companies to censor legitimate news stories and public discourse regarding the COVID-19 pandemic under the guise of combating misinformation, disinformation, and election interference," they wrote the White House Tuesday (Sept 13).

The "they" are Reps. Cathy McMorris Rodgers, ranking member of the committee, Bob Latta, ranking member on the Communications Subcommittee, and Gus Bilirakis, ranking member of the Consumer Protection Subcommittee.

Those legislators cited as an example what they said was Facebook's admission it has restricted access to apparent disinformation at the behest of the FBI, that information being related to the Hunter Biden laptop story they say Democrats and the media have downplayed for political reasons.

They also pointed to meetings between Twitter and White House officials over the speech of a conservative user of their platforms.

Those examples came following efforts by the attorneys general of Louisiana and Missouri to get access to communications between the White House and social media. While they got some info, they are seeking more and the legislators want to provide some backup, asking the White House to retain and provide communications to the Committee, including related to COVID-19 conversations with employees of Facebook.

"Administration officials have previously described conservative users as their political enemies, and we have previously expressed our concern that the administration’s recent actions could lead private companies to censor conservatives due to increased White House pressure," the legislators wrote.

They want a response from the White House by Sept. 26. ■

The Biden Administration signaled it wants major reforms of a tech industry the White House said clearly needs "rules of the road" given its capacity to "divide us and wreak serious, real-world harms."

Those would include limits on targeted advertising, data collection, and antitrust guardrails on the biggest players.

"A small number of dominant Internet platforms use their power to exclude market entrants, to engage in rent-seeking, and to gather intimate personal information that they can use for their own advantage," the White House said following a "listening session" on "tech accountability" Thursday (Sept. 8).

In Thursday's "listening session," numerous White House officials including policy advisor Susan Rice and Alondra Nelson, head of the Office of Science & Technology Policy, heard from various outside entities including Mozilla CEO Mitchell Baker and Alexandra Reeve Givens, president of the Center for Democracy and Technology.

After giving tech platforms their due for being a marketplace of ideas and commerce, the session participants clearly focused on the evils of Big Tech. "The rise of tech platforms has introduced new and difficult challenges, from the tragic acts of violence linked to toxic online cultures, to deteriorating mental health and wellbeing, to basic rights of Americans and communities worldwide suffering from the rise of tech platforms big and small," the White House said.

Clearly, the takeaway was that Big Tech, for all its upsides, was a threat that needs regulatory oversight, including given the concentration of power in a few mega-companies--like Google and Amazon and Twitter, though no names were called out in the readout of the session the White House provided.

Following the meeting, the White House released what it called its core principles for Big Tech reform.

1. "Promote competition." The Administration said that "a small number of dominant Internet platforms use their power to exclude market entrants, to engage in rent-seeking, and to gather intimate personal information that they can use for their own advantage."

To combat that, it said, Congress should pass antitrust legislation targeting Big Tech and providing "clear rules of the road" to make sure smaller companies can compete.

2. Robust privacy protections. The White says there need to be clear limits on the collection, use and storage of personal information, particularly sensitive info, and limits on targeted advertising.

3. Requiring platforms to prioritize children's safety and wellbeing over profit in how they design their products.

4. Remove the Sec. 230 protections for social media content moderation that "broadly shield them from liability even when they host or disseminate illegal, violent conduct or materials."

As the White House points out, President Biden has long called for Sec. 230 reform. Actually, he has long called for its revocation entirely.

5. Increase logarithmic transparency--how platforms decide what content to display where--and protect against the use of algorithms to discriminate against protected groups "such as by failing to share key opportunities equally, by discriminatorily exposing vulnerable communities to risky products, or through persistent surveillance."

It is unclear what the White House can do to bring all that about other than urging the industry to self-regulate and Congress to pass legislation, or make it clear to the Federal Trade Commission and Justice Department that it would welcome more muscular antitrust enforcement. ■

Big Tech and fans of fair use copyright exemptions are pushing back hard on a bill, the Journalism Competition & Preservation Act (JCPA), designed to give creators of original news content, like local broadcasters, more leverage over their content's re-use online.

They argue the bill will help big broadcasters rather than the smaller entities it purports to benefit.

Almost two dozen groups including the Computer & Communications Industry Association, Public Knowledge, Consumer Reports and others, wrote the leadership of the Senate Judiciary Committee and its Antitrust Subcommittee to argue against giving those broadcasters and others an antitrust exemption so they can jointly negotiate with Big Tech content aggregators.

Also: NAB Praises Hill Progress on Big Tech Targeted Bill

While the JCPA is billed as helping save local news, the groups said that it will do little to improve the situation, and a lot to compound some big problems.

They take issue with language in the bill that they say forces online platforms to negotiate with and carry content of any qualified digital journalism provider "regardless of how extreme their content," then sue them for moderating offensive content or that violated their terms of service or community standards.

Republicans argue that such moderation is a cover for censoring conservative content, while platforms say it is a way to weed out hate speech, disinformation and harassment.

Besides, the groups said, "this form of government mandate for covered platforms to carry and pay is also a violation of First Amendment."

While they concede the bill was written to try and prevent its use to limit fair use rights, but they say it still expands content rights "beyond the traditional bounds of copyright law in ways that would prove detrimental to the public interest."

They argue that the bill is requiring them to pay for facts when the First Amendment makes clear that "no one may own facts."

The groups say that rather than helping small publishers most in need of it, the bill favors bigger broadcasters, including News Corp., Sinclair, iHeart and Comcast/NBCUniversal, by allowing individual station licensees as members of a joint negotiating entity, even if they are all commonly owned -- like a network owned-and-operated station group. "The owners [ABC, NBC, CBS, Fox, for example] will
therefore control the governance of these entities and take the lion’s share of revenue," they said. ■

The FCC has decided not to tap the big pockets of Big Tech to help pay for its ongoing operations.

That came in a report and order Friday (Sept. 2) adopting a fee schedule to collect $381,950,000 in regulatory fees, which Congress requires, for FY 2022.

Also: State Broadcasters Say FCC Fee Regime Is Illegal

Broadcasters had called on the FCC to start assessing regulatory fees on Big Tech -- computer companies, streamers, and other edge providers -- saying they should not have to pay for computer company efforts (Microsoft in particular) to "degrade" their service. The FCC currently supports itself through fees on spectrum licensees.

But in the order, the FCC said: "We recognize the value in encouraging the development and innovation of technologies and decline to take such unprecedented action without a sufficient basis for making this change to the regulatory fee schedule."

Edge providers, cable operators and others opposed any new category, with NCTA-The Internet & Television Association pointing out that it wasn't even clear who would fall into the category, much less how such fees would be assessed.

Currently the fees are assessed according to the number of full-time employees (FTEs) in the various bureaus overseeing licensed operations -- media, wireless, wireline, etc.

"Use of spectrum on an unlicensed basis is nearly ubiquitous in modern-day society, and confers widespread benefits. Because of the large variety of uses of spectrum on an unlicensed basis, including for non-communications purposes, there is no specific user, service, or facility using this spectrum that could form the basis for a regulatory fee category of similar services," the FCC concluded.

The FCC pointed out that unlicensed users range from makers of baby monitors and garage door openers to medical imaging and Internet of Things industrial networks. The FCC said given that plethora of users, it would be hard to find a business, or consumer for that matter, who is not a user of unlicensed spectrum.

Broadcasters had argued that the FCC should not continue to burden broadcasters with helping subsidize their online competitors for eyeballs and ads by charging broadcasters a fee and not big tech, but the FCC said its reason for not applying the fee to the plethora of users simply applied to Big Tech as one of those many users and it would not create the category "premised on competitive considerations.... Competition for advertising revenues is not a sufficient basis for creating a new regulatory fee category," the FCC said. ■

The Senate Judiciary Committee has scheduled a markup of the Journalism Competition and Preservation Act for Thursday (August 4), but the National Association of Broadcasters expects that to be held over until after the August recess.

At press time, it was still on the committee agenda.

The bill would give "news content creators" -- print, broadcast, or digital -- an antitrust safe harbor to negotiate collectively with digital platforms like Facebook and Google for carriage of their original content.

NAB was still giving the Senate props for signaling it would move on the legislation.

“The Journalism Competition and Preservation Act levels the playing field between local media outlets and the big tech gate keepers that today leverage their market power to devalue our trusted news and community-focused content," said NAB President Curtis LeGeyt. "NAB applauds the Senate Judiciary Committee for scheduling a markup of this important, bipartisan legislation and we thank Senators Klobuchar and Kennedy, Chairman Durbin and the bill’s sponsors for their leadership. Broadcasters will continue to work with policymakers to advance this critical legislation.”

Specifically, the bill grants publishers immunity from federal and state antitrust laws for a 48-month period while they bargain collectively with digital platforms.

News content creators are defined as ones with 1) a dedicated professional editorial staff that creates and distributes original news and related content concerning local, national, or international matters of public interest on at least a weekly basis; 2) are marketed via subscriptions, advertising, or sponsorship.

Also: News Outlets Promote Value of Local Content

They include operations that provide original news and related content at least 25% of which is current news and related content, or broadcast original news and related content per an FCC license.

The online content distributors publishers get to collectively negotiate with must have one billion active users per month on all their websites worldwide, so it is clearly aimed at the biggest platforms.

Publishers under the News Media Alliance banner have for years been trying to get Congress to give news publishers a limited safe antitrust harbor so they can get tech platforms, Facebook and Google most notably, to pay for use of their content given that they "take most of the advertising revenue sold against that content," adding that "advertising revenue that previously went to the news publishers and allowed them to reinvest in quality journalism is now going to the platforms."

Also: News Media Alliance Slams Google Copyright Campaign

The bill said the joint negotiation is only allowed so long as negotiations are 1) not limited to price (no price fixing); 2) are nondiscriminatory as to similarly situated news content creators; 3) are directly related to the "quality, accuracy, 13 attribution or branding, and interoperability of news;" and 4) involve terms available to all news content creators.

The coordination among bidders has to be "directly related to and reasonably necessary for negotiations with an online content distributor" and [cannot] involve any person that is not a news content creator or online content distributor. ■

The Senate Commerce Committee Wednesday (July 27)  is marking up a one-two punch against Big Tech and in defense of children's health and privacy.

In addition to the Kids Online Safety Act, which stems from hearings in which both Republicans and Democrats grilled Facebook and others over issues including body image, eating disorders, substance abuse, and suicide in particular and mental health in general, it is also marking up an updated version of Sen. Ed Markey's online child, and now teen, data protection bill.

The Children and Teens’ Only Privacy and Protection Act (or COPPA 2.0, as author Sen. Ed Markey (D-Mass.) dubs it) updates the 1998 COPPA law, which only had "Children" in the name to extend protections to 13-16-year olds (the original bill stopped at 12).

The new bill, if it makes it out of committee Wednesday, would:

Ban advertising targeted to kids (as distinguished from contextual advertising in content targeted to children.

Change COPPA's "actual knowledge" standard to a "constructive knowledge" standard, which means websites "should reasonably know" that children are on their sites and they need to get consent to collect data.

Require online companies to explain what personal information is being collected, how it is being used and disclosed and their collection policies.

Require that internet-connected devices for kids have robust cybersecurity.

Require manufacturers of connected devices targeted to kids and minors to include on their packaging disclosures of how information is collected, transmitted, retained, used and protected.

Given the current bipartisan push to rein in Big Tech, both bills could make it to the President's desk.

Sen. Markey said he thought the Facebook whistleblower, who testified before the committee, had changed the dynamic of the push to protect children online and pass "historic" legislation. ■

The bipartisan, bicameral efforts to rein in edge provider data collecting and sharing practices just keep on coming.

Only hours after the House Energy & Commerce Committee marked up and favorably reported the legislative framework for a comprehensive data privacy bill (the American Data Privacy and Protection Act), Sens. Richard Blumenthal (D-Conn.) and Marsha Blackburn (R-Tenn.) were applauding the decision by the Senate Commerce Committee to mark up their Children and Teens’ Online Privacy Protection Act (S. 1628).

The markup has been scheduled for July 27.

“The Commerce Committee’s markup of the Kids Online Safety Act will bring us closer to holding Big Tech accountable for putting profits above kids’ safety,” said Blumenthal in a statement. 

Also: New Bill Would Break Up Big Tech Ad Giants

The bill, which the pair introduced in February came after hearings headed by the legislators on Big Tech's "repeated failures to protect children & teens from serious dangers on their platforms," as they put it at the time.

The legislation does the following:

1. “Requires that social media platforms provide minors with options to protect their information, disable addictive product features, and opt out of algorithmic recommendations. Platforms would be required to enable the strongest settings by default.
2. “Gives parents new controls to help support their children and identify harmful behaviors, and provides parents and children with a dedicated channel to report harms to kids to the platform.
3. “Creates a responsibility for social media platforms to prevent and mitigate harms to minors, such as promotion of self-harm, suicide, eating disorders, substance abuse, sexual exploitation, and unlawful products for minors (e.g. gambling and alcohol).
4.  “Requires social media platforms to perform an annual independent audit that assesses the risks to minors, their compliance with this legislation, and whether the platform is taking meaningful steps to prevent those harms.
5. “Provides academic and public interest organizations with access to critical datasets from social media platforms to foster research regarding harms to the safety and well-being of minors.”

Also: Blumenthal Says Facebook Weaponizes Childhood Suffering

"Protecting our kids and teens online is critically important,” said Sen. Blackburn in a joint statement with Blumenthal. “I have heard firsthand countless stories of physical and emotional damage of teen suicide and mental health issues affecting young users, along with Big Tech’s unwillingness to change. The Kids Online Safety Act will address those harms by setting necessary safety guiderails for online platforms to follow that will require transparency and give parents more peace of mind."

Also: Blumenthal Presses TikTok, YouTube, Snapchat for Documents

The American Data and Privacy Protection Act also has a protections for kids, banning knowingly targeting advertising to anyone under 17. ▪️

The time has finally come to require Silicon Valley giants to share an infinitesimal slice of their enormous profits to close the digital divide. On a bipartisan vote, the Senate Commerce Committee recently approved S. 2427, the Funding Affordable Internet with Reliable (FAIR) Contributions Act, which next heads to the Senate floor.

Last summer, U.S. Sens. Roger Wicker (R-Miss.), Shelley Moore Capito (R-W.Va.) and Todd Young (R-Ind.) introduced the legislation, which would direct the Federal Communications Commission to conduct a study into the feasibility of collecting Universal Service Fund (USF) contributions from internet edge providers, such as Google, Facebook and others. 

“These companies have benefited from the connectivity the USF supports but have not yet had to contribute,” Wicker explained.

Despite the fact that the combined annual revenue of technology companies on Forbes's Global 2000 list climbed from about $3.3 trillion to a record $4 trillion over the last year, these wildly wealthy companies are still fighting to keep their coffers closed.

But America needs their help.

Also: Big Tech to FCC: Drop Inquiry Into Universal Service Fund Fees

If the $65 billion for broadband set aside by the Infrastructure Investment and Jobs Act (IIJA) is spent wisely, all Americans can be reached with a high-speed internet connection. The problem is that adoption challenges remain, and an ongoing source of funding is needed to support broadband affordability for rural and low-income Americans, as well as schools, libraries and rural healthcare providers over the long haul. This is the primary purpose of the Universal Service Fund, but its funding is on the fritz. In fact, a recent study by EconONE managing director Hal Singer and consultant Ted Tatos indicates the current USF mechanism is unsustainable and will fail to meet the needs of its target consumer base within the next five years. Meanwhile, the Affordable Connectivity Program (ACP), which was established by the IIJA to help low-income Americans buy broadband, is only funded to the tune of $14.2 billion. To keep it going, we will need either a new appropriation from Congress or USF will have to pick up where ACP leaves off, making contribution reform an even more urgent solution.

Currently, USF is funded by requiring telecommunications companies to fork over a percentage of their interstate end-user revenues, which is known as the program’s “contribution factor.” It’s as old school as it sounds — a “tax” on “long distance” telephone calls. Even your grandmother would say this is outdated.

Given that older Americans and those living in older homes are far more likely to have landline phones, the reality is that the tax disproportionately impacts seniors and Americans with lower incomes. Among householders aged 75 and older, 75% have landlines in their homes, compared to less than 5% for householders under 25. And with fewer dollars being added to their personal bank accounts every month, the fees consume a greater portion of their incomes, as pointed out by a Government Accountability Office report.

What’s more, the USF’s revenue base is ever-shrinking, which can only be offset by the contribution factor ever-increasing. In 2019, just over 31% of U.S. households still had a landline, a steep decline from the more than 90% in 2004, 15 years earlier. In 2016, the fund was stretched to support broadband as well as phone service, so widening the contributions base to include broadband-related tech company revenues is a logical, fair and reasonable modernization. Drawing dollars from across the greater internet ecosystem, rather than from traditional phone service alone, could bring the contribution factor down to a small percentage that edge and internet service providers could tout as a business decision that would expand the ecosystem for the benefit of everyone.

America’s lawmakers aren’t the only ones who recognize the imbalance of Big Tech benefiting from broadband networks without backing them. The European Commission recently proposed the signing of a declaration of principles and rights underpinning digital transformation in the European Union, including “developing adequate frameworks so that all market actors benefiting from the digital transformation assume their social responsibilities and make a fair and proportionate contribution to the costs of public goods, services and infrastructures for the benefit of all Europeans.”

In South Korea, Big Tech and video-streaming companies generating 1% or more of total internet traffic, or those with at least 1 million users, pay a fee to support the provision of network capacity. So, while the Motion Picture Association, which represents streaming content providers like Netflix, Hulu, Disney Plus and others, is telling the FCC that expanding the USF contribution base to include them would “present significant implementation issues that would render such an approach unworkable," other countries have already worked it out.

Also: FCC's Carr: Make Big Tech Pay for USF Subsidies

Another potential solution for saving USF is tapping into huge internet-related tech company revenues through a digital advertising services fee. According to projections from Singer and Tatos, “Even if the current USF funding levels were increased to $17.5 billion annually (generously assuming a 75% participation rate by eligible, low-income households, and a $50 per month subsidy regardless of location), by 2029 the contribution factor on digital advertising would only reach 7.3%” — compared to a contribution factor today that’s greater than 25%.

As FCC commissioner Brendan Carr pointed out a year ago, “Ending Big Tech's free ride on the internet would represent a long-overdue return to the historic compact under which the businesses that benefit from a network pay their fair share for it.”

Fortunately for all Americans, this proposal is finally on track, thanks to the FAIR Contributions Act. Let’s hope a resounding “yes” is soon heard, once again, from both sides of the Senate floor. ▪️

Fight for the Future is calling on Sen. Chuck Schumer (D-N.Y.) to disclose any "dark money" funds Democrats have received from Big Tech.

As the Senate majority leader, Schumer controls whether a couple of bipartisan Big Tech-regulating bills get a floor vote after being favorably reported out of the Senate Commerce Committee. To date, he has not scheduled a vote and Fight for the Future wrote Schumer saying the funding needed to be out in the open to dispel the appearance of a conflict of interest.

The group, which backs the bills, said disclosure would “help reassure a public that is questioning your hesitation in cracking down on Big Tech despite broad, bipartisan public support for doing so.”

Also: Group Pushes Schumer To Watch John Oliver Big Tech Video

The bills they want Schumer to advance to a floor vote are S. 2992 and S. 2710.

S. 2992, the American Innovation and Choice Online Act, is billed as preventing online favoritism.

Specifically, it would:

• 1. “Prohibit dominant platforms from abusing their gatekeeper power by favoring their own products or services, disadvantaging rivals, or discriminating among businesses that use their platforms in a manner that would materially harm competition on the platform; and  
• a. “Prohibit specific forms of conduct that are harmful to small businesses, entrepreneurs, and consumers, but that do not have any pro-competitive benefit, including: 
• i. “Preventing another business’s product or service from interoperating with the dominant platform or another business;  
• ii. “Requiring a business to buy a dominant platform’s goods or services for preferred placement on its platform;  
• iii. “Misusing a business’s data to compete against them; and iv. “Biasing search results in favor of the dominant firm; and 
• iv. “Biasing search results in favor of the dominant firm.”

Reading like an app net neutrality rule for Apple and Google, S. 2710, the Open Apps Market Act, would prevent a covered company from restricting the use of alternative in-app payment systems; or from favoring their own terms of distribution, pricing or conditions of sale; or penalize developers for using different pricing terms or conditions via another in-app payment system.

It prevents a Google or Apple, for example, from using info derived from a third-party app to compete with that same app.

That bill passed the Senate Judiciary Committee with overwhelming bipartisan support (21-1) back in February and was backed by the odd couple pairing of liberal Connecticut Democratic Sen. Richard Blumenthal (D-Conn.) and conservative Tennessee Republican Sen. Marsha Blackburn.

In a press conference last month, Sen. Amy Klobuchar (D-Minn.) and other S. 2992 sponsors and supporters said they need to get a vote ASAP, before the August recess. She pointed out that the leaders of both the House and Senate [the latter would be Schumer] have promised a vote and need to schedule it. Klobuchar pointed out that it has been over a year and there has been no vote on the bill. She also said that Big Tech has spent some $70 million on ads in the past year and employed thousands of lobbyists.

The airwaves and wires (cable) in D.C. have definitely been blanketed with scary ads suggesting the bills could end Amazon Prime's two-day delivery service, among just one of a parade of horribles. ■

The National Association of Broadcasters said the Federal Communications Commission should start imposing regulatory fees on businesses that benefit indirectly from its activities, particularly internet service providers — regulation of which is taking up a lot of the agency’s resources.

The FCC supports itself entirely from fees levied on its licensees, including broadcasters, cable providers and satellite services. The NAB, whose constituency includes owners of broadcast TV stations, has been telling the FCC — and anyone else within earshot — that it’s time for that to change. 

Congress directed the FCC to collect fees from those who benefit from its services, and the NAB said that should include those who benefit indirectly.

Also: NAB Says Court Decision Means FCC Is Free To Charge Fees to Big Tech

The NAB‘s most recent pitch came in comments to the FCC this week on its 2022 regulatory fees and the agency‘s own inquiry into whether it should, indeed, reach beyond the usual fee-payers to others.

“Broadcasters’ fees are skyrocketing to unsustainable levels because of a fee methodology that both fails to perform any analysis of the benefits provided to industries by 75% of the Commission and is inconsistently applied, and the Commission’s willingness to force broadcasters to subsidize other companies by paying for broadband-related activities that the Commission acknowledges do not provide any benefits to broadcasters,” the NAB said. “Broadcasters should not be penalized because the Commission’s fee methodology has not kept pace with market changes and technological convergence in other industries.”

It is past time for the FCC to add an ISP fee category, and to consider adding one for edge providers such as Google, Netflix and Amazon as well, the NAB said.

The FCC is also considering whether to add Big Tech to those who have to pay into the Universal Service Fund subsidies for broadband buildouts. ■

Powerful computer companies told the Federal Communications Commission it would be a waste of the the agency’s — and stakeholders’ — time and money to continue trying to make them pay a regulatory fee to the FCC.

Editor's note: This story initially said that the filing was on Universal Service Fund fees rather than FCC fees. We regret the error.

Currently, edge providers such as Google, Facebook, Apple and others who benefit from unlicensed spectrum do not pay, as to broadcasters, cable operators and satellite operators, who are all FCC licensees. But the FCC has asked whether that needs to change.

Also: Who Should Pay for Universal Broadband Connectivity?

In a resubmission of previous comments, INCOMPAS, the Computer & Communications Industry Association and the Digital Media Association said that since the time of that first comment submission last year, there is overwhelming opposition to considering adding Big Tech to the fee categories and no justification for imposing new levies on “large technology companies.”

To sum it up, they said, INCOMPAS, CCIA and DiMA believe it is time for the FCC to close this aspect of the proceeding “so as not to waste any additional resources of the Commission or stakeholders.”

Separately, the Consumer Technology Association led a group of associations, including INCOMPAS, in a letter to the FCC this week pointing to the economic harm of imposing regulatory fees on unlicensed spectrum users and also asking the FCC to terminate the proceeding.  ■

NCTA-The Internet & Television Association is joining Big Tech companies in trying to head off any Federal Communications Commission effort to establish “one-size-fits-all” standards for 5G receivers, and cable has a big dog in the fight.

NCTA pointed out in comments this week that cable operators are both incumbent licenseholders — whose satellite programming transmissions can be affected by harmful wireless interference — as well as operators of “the largest WiFi networks in the country.” Unlicensed WiFi has been cable’s big competitive play in the wireless internet access space through hot spots that blanked the landscape.

Rules to prevent new services from causing such harmful interference are absolutely necessary, NCTA said, but locking in receiver mandates would “limit overall utility and spectrum efficiency, make deployment unnecessarily expensive, and undermine innovation and deployment, which ultimately harms consumers.”

Also: CTA Says Receiver Mandates Could Stifle Innovation

And while NCTA agrees the FCC should look at the receiver side of the equation — it has been focused on transmitters and there is some debate over whether the agency has authority over the consumer-facing receiver side — the association told the regulator it should not single out unlicensed receivers for special regulatory treatment.

It says a flexible approach featuring incentives and good-faith collaboration is the better way to go.

The FCC in April opened an inquiry into setting wireless receiver standards, one of several routes the regulator could take, alone or in tandem, to protect signals in increasingly crowded spectrum bands, a road map laid out by FCC chair Jessica Rosenworcel back in April. “We recognize that a variety of approaches may be appropriate, whether through industry-led voluntary measures, Commission policy and guidance, or rule requirements where other approaches would be insufficient,” she said after the FCC approved the notice of inquiry (NOI).

The NOI was unanimous, but that was not necessarily an indication of any unanimity on which approach to take. At this stage the NOI is only an effort to collect info on how to improve receiver performance and expand the FCC's traditional focus beyond transmitters alone.

Also: Simington Has Dynamic View of Spectrum Sharing

The heavy lifting will be when the FCC comes up with a proposed new approach — or if, since the FCC has tried to address receiver standards in the past without coming up with a new way forward.

NCTA has some definite suggestions. It told the commission it should not adopt “specific receiver performance or design rules or mandate standards” because those are “time-intensive and difficult to design and implement across services and industries, and would be inherently less adaptable to specific circumstances.” ■

Fight for the Future, a group pushing new regulations on Big Tech, is taking the fight to the home(s) of Senate Majority Leader Chuck Schumer (D-N.Y.).

Over the weekend, the group parked billboard trucks outside Schumer’s homes in Washington, D.C., and Brooklyn, New York, looping a segment from HBO's Last Week Tonight with John Oliver on regulating Big Tech.

Oliver was famous for pushing the Federal Communications Commission to impose network-neutrality regs on internet service providers, but like many Washington legislators on both sides of the aisle, he has turned his attention to the power of edge providers.

Also: Sponsors Urge Action on Bipartisan Big Tech Competition Bill

The video billboard also directs passersby to Fight for the Future’s website, the aptly named MakeSchumerWatchJohnOliver.com, which will allow them to tweet the segment directly to the senator as well.

Fight for the Future is looking to fight fire with fire, as it were, given that Big Tech backers have blanketed media in Washington with ads arguing the bills represent a parade of horrible from allowing dangerous malware, to essentially breaking Amazon Prime's free two-day delivery.

The bills they want Schumer to advance to a floor vote are S. 2992 and S. 2710.

S. 2992, the American Innovation and Choice Online Act, is billed as preventing online favoritism.

Specifically, it would:

• 1. “Prohibit dominant platforms from abusing their gatekeeper power by favoring their own products or services, disadvantaging rivals, or discriminating among businesses that use their platforms in a manner that would materially harm competition on the platform; and 
• a. “Prohibit specific forms of conduct that are harmful to small businesses, entrepreneurs, and consumers, but that do not have any pro-competitive benefit, including: 
• i. “Preventing another business’s product or service from interoperating with the dominant platform or another business; 
• ii. “Requiring a business to buy a dominant platform’s goods or services for preferred placement on its platform; 
• iii. “Misusing a business’s data to compete against them; and 
• iv. “Biasing search results in favor of the dominant firm."

Reading like an app net neutrality rule for Apple and Google, S. 2710, the Open Apps Market Act, would prevent a covered company from restricting the use of alternative in-app payment systems; or from favoring their own terms of distribution, pricing or conditions of sale; or penalize developers for using different pricing terms or conditions via another in-app payment system.

It prevents a Google or Apple, for example, from using info derived from a third-party app to compete with that same app.

The bill passed the Senate Judiciary Committee with overwhelming bipartisan support (21-1) back in February and was backed by the odd couple pairing of liberal Connecticut Democratic Sen. Richard Blumenthal (D-Conn.) and conservative Tennessee Republican Sen. Marsha Blackburn.

“We know as soon as Schumer watches the John Oliver segment he’ll understand why S. 2992 and S. 2710 are so important, stop stalling, and move them to the floor for a vote,” said Fight for the Future.

Democratic legislators are also pushing Schumer to hold the votes.

In a press conference earlier this month, Sen. Amy Klobuchar (D-Minn.) and other  2992 sponsors and supporters said they need to get a vote ASAP, before the August recess. She pointed out that the leaders of both the House and Senate [that would be Schumer] need have promised a vote and need to schedule it. Sen. Klobuchar pointed out that it has been over a year and there has been no vote on the bill. She also said that Big Tech has spent some $70 million on ads in the past year and employed thousands of lobbyists. ■

Big Tech companies are continuing to try and head off any FCC effort to establish what they said would be 'one-size-fits-all" standards for 5G receivers that would work against the FCC's goals of an innovative 5G environment.

The FCC in April opened an inquiry into setting wireless receiver standards, one of several routes the FCC could take, alone or in tandem, to protect signals in increasingly crowded spectrum bands, a roadmap laid out by FCC chair Jessica Rosenworcel back in April. "We recognize that a variety of approaches may be appropriate, whether through industry-led voluntary measures, Commission policy and guidance, or rule requirements where other approaches would be insufficient," she said after the FCC approved the Notice of Inquiry (NOI)

The NOI was unanimous, but that was not necessarily an indication of any unanimity on which approach to take. At this stage the NOI is only an effort to collect info on how to improve receiver performance and expand the FCC's traditional focus beyond transmitters alone.

Also: Simington Has Dynamic View of Spectrum Sharing

The heavy lifting will be when the FCC comes up with a proposed new approach--or if, since the FCC has tried to address receiver standards in the past without coming up with a new way forward.

In meetings earlier this month, according to commission documents, Consumer Technology Association representatives told advisors to Rosenworcel and other top FCC staffers that FCC-mandated receiver standards were not the way to go.

While conceding an increasingly congested environment for RF signals that could only become more congested as the FCC opens up more spectrum for 5G, CTA said that "One-size-fits all mandates on receiver performance" would actually undercut reallocation efforts and "stifle" the innovation the FCC is trying to promote.  

CTA said self-regulation in the form of industry-led efforts, have the most likelihood of success, as it says has been proven "time and time again."

That could be a tough sell, particularly if the FCC gets a third Democrat. But even without, there seems to be agreement that the FCC's regulatory philosophy around protecting against interference needs to change with the times.

"[W]ireless communications systems involve transmitters and receivers," Rosenworcel said. "It’s a two way proposition. Both are vital. Both matter. So we need to rethink our approach to spectrum policy and move beyond just transmitters and consider receivers, too."

Republican commissioner Nathan Simington also signaled in April that past performance is no guarantee of future returns in a changed spectrum landscape, though he is on record as saying he would prefer industry do the heavy lifting after getting some pushback for his initial push for receiver standards. "It is time that our regulatory approach goes duplex both receivers and transmitters," he said after voting to approve the NOI. "To proceed with the status quo risks stymying innovative technologies that require intensive use of spectrum adjacent to incumbent commercial allocations."

Simington has in the past taken issue with some of the CTA arguments. As to stifling innovation, he said he is skeptical, saying better standards could put (price) pressure on Chinese manufacturers and make it more feasible for non-Chinese manufacturers, a sort of rising tide of spectral-wave receivers that lifts all boats. That sounds to him like actually protecting innovation, or at least mitigating some of China's dominance in the market.

As to the argument that has been made that the FCC regulates transmissions, not receivers, he said the agency clearly regulates reception since it regulates interference and interference to an end user is part of that process. He agrees that the FCC has not focused on receivers, but does not see an outright prohibition. ■

Facing a multimillion-dollar TV ad campaign by Big Tech to try and stop their online competition bill, sponsors of the American Innovation and Choice Online Act said they will not be thwarted by a campaign they assert is full of lies and disinformation.

But the legislators also suggested the campaign may be working since the bill has yet to make it to the floor after a year of work refining the bill with input from stakeholders.

The bill's targets are chiefly Google, Amazon and Apple, all members of the Computer & Communications Industry Association, which is funding the ad campaign.

In a press conference, Sen. Amy Klobuchar (D-Minn.) and her bill co-sponsors and supporters said they need to get a vote ASAP, before the August recess. She pointed out that the leaders of both the House and Senate need have promised a vote and need to schedule it.

Sen. Klobuchar pointed out that it has been over a year and there has been no vote on the bill. She also said that Big Tech has spent some $70 million on ads in the past year and employed thousands of lobbyists.

Also: CCIA Study Asserts Edge Regs Could Be $300 Billion Economic Hit

The American Innovation and Choice Online Act was introduced back in October 2021 by Klobuchar, chair of the Senate Antitrust Subcommittee and a self-described leading antitrust reformer, and Republican Sen. Chuck Grassley (R-Iowa), the ranking member, who joined Klobuchar at the press conference to press for a vote.

The bill would prevent an online platform from: 1) keeping another business from interoperating with a dominant platform of other business; 2) requiring a business to buy a dominant platform’s products or services in order to get preferred placement; 3) “misusing” a business“s data to compete against it, and 4) biasing search in their favor.

The bill allows civil penalties for violations of up to 15% of U.S. revenue for the duration of the violation and authorizes a court to penalize a CEO or corporate officer an amount equal to their compensation for the 12 months preceding or following a complaint.

At the press conference, Grassley said that their bill is the best way to address Big Tech's power over “what we buy, see, read and say online.” He said those tens of millions on TV ads were from rant groups spreading “falsehoods” about the bill. “They want to protect the status quo, which allows them to expand influence over the decisions of small businesses or consumers.”

Bill sponsor Rep. David Cicciline (D-R.I.) said the three big lies in the Big Tech ad campaign are that the bill would threaten choice, privacy and national security, none of which he suggested was remotely true.

Looking to aid the bill sponsors' effort, following the June 8 press conference, the Fight for the Future said it had launched a new website, pledging to press Congress to hold votes on the bill in the House and Senate. ■

Computer companies including the biggest Big Tech targets of a potential revamp of antitrust regulations have told the National Telecommunications & Information Administration that  the mobile app market is already a 'fair, open and competitive marketplace' and that using antitrust enforcement to go after perceived inequities could hurt consumers and innovation.

That is according to comments filed by the Computer & Communications Industry Association.

NTIA, the White House’s chief communications policy adviser, last month asked for input on the state of mobile app competition, a request that suggested app competition needed "restoring" and that the goal was one of the "critical priorities" of President Biden's Executive Order on Promoting Competition in the American Economy."

Also: Amazon Freevee (Finally) Gets Apple TV App

CCIA, whose members include Amazon, Apple, Facebook and Google, essentially told NTIA 'nothing to see here,' or at least nothing that can't be fixed by Congress with federal privacy standards. “Growth and innovation in the mobile app ecosystem, together with rapid advancements in the power and diversity of mobile devices, have created a fiercely competitive environment benefiting consumers, developers, and the computer industry," it said.

CCIA renewed its call for Congress to come up with federal privacy legislation to protect consumers' privacy on mobile apps rather than have the Federal Trade Commission and Justice Department "rewrite antitrust practice and jurisprudence accumulated over the course of many decades," in the process "overlooking the significant constraints that multi-sided firms face and, accordingly, finding anticompetitive conduct where none exists."

It said that such "false positives” by either regulators or the courts "deter innovation and hinder consumer welfare." ■

A federal appeals court has agreed to block enforcement of the major provisions of a Florida law targeting social media content moderation. NetChoice and the Computer & Communications Industry Association had sought the preliminary injunction while their legal challenge of the law works its way through the courts.

In a unanimous decision penned by judge Levin Newsom, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit upheld a lower court's injunction against the enforcement of provisions in the law that restrict social media platforms' ability to moderate content and that they have to come up with a "thorough rationale" for all of their content moderation decisions.

The court said both are likely unconstitutional. It declined to block enforcement of the "far less burdensome" requirement of other disclosure provisions, saying the lower court got it wrong when it blocked those as well.

The law was the product of a Republican-controlled legislature. Republicans have argued that Silicon Valley giants have attempted to suppress conservative speech in the guise of moderating their platforms and under the protection of section 230 of the Communications Decency Act, which exempts them with civil liability over most of that third-party content.

Asserting that “social media platforms have unfairly censored, shadow-banned, deplatformed and applied post-prioritization algorithms to Floridians,” the law removed civil liability protection for content on Big Tech platforms — like Facebook or Twitter — that violated the law, including allowing for monetary damages up to $250,000 per day for deplatforming political candidates for statewide office, and $25,000 for non-statewide offices.

"The question at the core of this appeal is whether the Facebooks and Twitters of the world — indisputably 'private actors,' with First Amendment rights — are engaged in constitutionally protected expressive activity when they moderate and curate the content that they disseminate on their platforms. The State of Florida insists that they aren’t," Newsom wrote in the panel decision.

By contrast, Newsom said the panel was pretty sure those Big Tech companies were, indeed, private actors engaging in protected speech. ■

A new bipartisan Senate bill would impose restrictions on the biggest players in the digital advertising market that mirror those on electronic trading in the financial sector. Those restrictions would prevent the largest providers of ad-supported digital platforms from also selling third-party ads, meaning major divestitures for Big Tech's biggest.

The Competition and Transparency in Digital Advertising Act is targeted to the dominance of Google and Facebook in the digital ad market. The bill's backers point out that Google Ad Manager is used by 90% of large publishers, for example.

A bill summary supplied by Sen. Mike Lee (R-Utah) is particularly tough on Google, saying that Google "uses its pervasive market power across the digital advertising ecosystem, and exploits numerous conflicts of interest, to extract monopoly rents and stack the deck in its favor." But other tech giants would be in their sights as well.

The summary minced no words about the potential impact.

"If enacted into law, this bill would most likely require Google and Facebook to divest significant portions of their advertising businesses — business units that account for or facilitate a large portion of their ad revenue," the summary flatly states. "Amazon may also have to make divestments, and the bill will impact Apple’s accelerating entry into third-party ads."

Also: Bills Prompt Faceoff Between Big Tech, Antitrust Groups

Joining Lee in introducing the bill Thursday (May 19) were some big names in the competition oversight space: Sens. Amy Klobuchar (D-Minn.), Ted Cruz (R-Tex.), and Richard Blumenthal (D-Conn.).

Bill backers say those are monopoly rents that constitute a tax of more than 40% on every ad-supported website that advertises online, which together comprise a big chunk of the entire economy.

While the bill appears to focus on Google, its supporters also say the legislation will need to apply broadband "to avoid replacing one abusive monopolist with another."

The bill prohibits large digital advertising companies -- and they mean large -- from owning more than one part of the digital ad ecosystem. Large is defined as "process[ing] more than $20 billion in digital ad transactions."

That means that ad exchange owners can't own supply side platforms or demand-side platforms unless those only run their own ad inventory.

All digital ad companies that process more than $5 billion in digital ad transactions would also have to abide by some customer and competition-protection obligations, including to act in customers' best interests, to be transparent about their business practices, and to erect firewalls if they are allowed to operate on both sides of the market, which would be those over $5 billion but under the $20 billion threshold.

But wait, there's more. Both state attorneys general and the Department of Justice would be charged with enforcement, and there would be the dreaded -- at least from companies' perspectives -- private right of action for violations of the obligation for $5 billion-and-up companies if committed by those with over $20 billion in business.

"While online advertising is essential to nearly every business, this broken system has been the primary driver of growth for the tech companies that have failed us in so many other ways: by undermining our privacy, censoring our speech, and exploiting our children," said Sen. Lee.

“For too long, Google and Facebook have dominated the digital advertising marketplace at the expense of advertisers, publishers, and consumers. It is past time for a transparent ad technology industry where the best interests of customers are prioritized and companies of all sizes are able to compete," said Sen. Klobuchar. "This legislation will put rules in place to do just that, restoring and protecting competition in digital advertising to create a more even playing field that will promote fairness and innovation moving forward.”

“Structural interventions in the marketplace are a blunt instrument and would be a bad precedent to set for antitrust regulation," said CCIA President Matt Schruers. "The bill would make online ads more costly and harm consumers and the economy.”

Interactive advertising interests also did not share the legislators' enthusiasm.

“This legislation is intended to punish a few companies, but the effects would reverberate across the digital economy, affecting advertisers large and small as well as the American public," said Interactive Advertising Bureau CEO David Cohen. "The unintended consequences would be devastating to one of the most powerful growth engines of the U.S. economy. The market would lose the scale and precision the internet offers, ad costs would rise, and growth opportunities for brands and publishers would disappear. Small businesses and content creators across the country wouldn’t exist without integrated technologies helping them to attract and retain customers, providing them with products and services."

The Connected Commerce Council saw the bill as a disconnect, suggesting it would "disproportionately hurt small businesses that use affordable digital ads to promote their business." ■

Google is teaming with one of the nation's largest local TV station owners, Scripps, to help create local news content.

The move comes as as broadcasters are calling for federal help to allow them to jointly negotiate for compensation for online platform use of their local news content.

Google has agreed to fund a new Scripps Journalism Journey initiative to help print journalists make what it calls "mid-career" transitions to "video-driven storytelling" in broadcast news careers. Those new jobs can include beat reporter, executive producer, editor/manager, documentary producer and copy editor.

The program will provide training, support, mentoring (including job shadowing), and coaching, and may also include conferences, Google News Initiative programs, Poynter Institute for journalism programs, or opportunities through the National Association of Broadcasters and the Society of Professional Journalists.

Also: Senate Panel Weighs in on Journalism Competition Issues

Those chosen to participate will get full-time "career" positions in Scripps newsrooms, local and national, said the broadcaster. Interested journalists can start applying in early summer.

The new program comes the same week that National Association of Broadcasters President Curtis LeGeyt called on Congress to pass the Journalism Competition and Preservation Act.

The bill would grant publishers immunity from federal and state antitrust laws for a 48-month period while they bargain collectively with digital platforms like Google.

Media outlets argue that Big Tech has been using their content without sufficiently compensating them for their investment in original, independent journalism, and sought the antitrust carveout to be able to present a more united negotiating front.

Broadcasters say not getting that fair compensation is an existential threat to the local news that multiple polls have shown American media audiences rely on.

NAB has also launched a website calling for help from Congress and calling out Google and Facebook by name for controlling access while failing to pay most new publishers for use of their local news content. ■

Social media companies are asking the Supreme Court to prevent the enforcement of a Texas law they say prevents online platforms from exercising editorial discretion over content and irreversibly tarnishes their businesses.

The law, which passed a Republican-controlled legislature September 9, 2021, “prohibits an interactive computer service from censoring a user, a user’s expression, or a user's ability to receive the expression of another person based on … the viewpoint of the user or another person.” It also requires large social media platforms like Facebook and Twitter to disclose how they manage content, to publish an acceptable use policy that users can find telling them what content is acceptable, to publish quarterly transparency reports, and to have a complaint system in place for violations of its policies.

The Computer & Communications Industry Association and NetChoice, whose membership includes Amazon, Facebook, Google and Twitter, filed an emergency brief with the Supreme Court Friday (May 13) asking it to block the statute, calling it an "unprecedented assault on the editorial discretion of private websites, listing Facebook, Twitter, Instagram, Pinterest, Vimeo and YouTube among those under assault.

Earlier in the week, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit in a split 2-1 decision reversed a lower court opinion and lifted a preliminary injunction against the Texas law. CCIA and NetChoice want the Supreme Court to overrule the 5th Circuit panel.

Also: Big Tech Fires Latest Legal Volley at Texas Social Media Law

The social media companies say that denying them the ability to engage in any viewpoint-based content moderation would "compel platforms to disseminate all sorts of objectionable viewpoints—such as Russia’s propaganda claiming that its invasion of Ukraine is justified, ISIS propaganda claiming that extremism is warranted, neo-Nazi or KKK screeds denying or supporting the Holocaust, and encouraging children to engage in risky or unhealthy behavior like eating disorders."

They said the sites can't comply with the law without "irreversibly transforming" their worldwide platforms, in the process tarnishing their reputations, causing users and advertisers to flee.

They said the court should maintain the status quo while the courts consider the merits of their underlying challenge to the law. ■

A three-judge panel of a federal appeals court has lifted a preliminary injunction against a Texas law tech companies say unconstitutionally prevents online platforms from exercising editorial discretion based on viewpoint.

That is according to the Computer & Communications Industry Association, which said a split panel of the U.S. Court of Appeals for the Fifth Circuit had sided with the state of Texas, which had challenged the injunction imposed by a Texas U.S. District court judge back in December.

CCIA and NetChoice filed the lawsuit challenging the law in May of last year.

Also: Big Tech Fires Latest Legal Volley at Texas Social Media Law

That appeals court decision means the law could go into effect while that underlying lawsuit by computer companies is adjudicated.

"As a result of today’s order, Texas could soon seek to enforce its 'Fairness Doctrine for the Internet' against leading digital services, which invites unwarranted and unnecessary governmental intrusion into Americans’ online experience," the CCIA said.

The law, which passed a Republican-controlled legislature September 9, 2021, “prohibits an interactive computer service from censoring a user, a user’s expression, or a user's ability to receive the expression of another person based on … the viewpoint of the user or another person.” It also requires large social media platforms like Facebook and Twitter to disclose how they manage content, to publish an acceptable use policy that users can find telling them what content is acceptable, to publish quarterly transparency reports, and to have a complaint system in place for violations of its policies.

CCIA said the order lifting the injunction did not go to the merits of the appeal and had no written decision accompanying it.

“This unexplained order contravenes established First Amendment law," said CCIA President Matt Schruers. "No option is off the table. We will do what is necessary to ensure that the free market, not government fiat, decides what speech digital services do and do not disseminate.”

Both Republicans and Democrats have been critical of Big Tech, but often for different reasons. Republicans argue that social media sites have censored protected conservative speech, while Democrats generally support what they see as weeding out disinformation, misinformation, and hate speech. Democrats' issues with Big Tech are more about privacy, algorithmic discrimination, lack of sufficient child protections, and not enough weeding out of dangerous speech. ■

The Senate appears to be getting serious about making edge providers including streamers and search engines pay into the Universal Service Fund. The USF subsidizes advanced telecommunications — essentially broadband — to low-income and hard-to-reach areas of the country.

Currently, the fund is paid into by telecom providers, but with the move from traditional phones to broadband as the connectivity of choice, the sustainability of the subsidy program is at issue.

The Senate Commerce Committee on Wednesday (May 11) approved S. 2427, the Funding Affordable Internet with Reliable Contributions (FAIR Contributions) Act, which now heads to the Senate floor.

Edge providers still have plenty of time and opportunity to lobby against the move since the bill only requires the Federal Communications Commission to study the feasibility “and effects” — the additional language was added as an amendment — of making edge providers pay into the fund.

Streaming content providers are telling the FCC it would be unwise and unworkable for Congress to expand the broadband subsidy base to include over-the-top video and others in the vague “Big Tech” basket and essentially impossible for the FCC to administer.

Also: OTT tells FCC That USF Streaming Fee Would Be Impossible to Administer

Committee ranking member Roger Wicker (R-Miss.), who authored the bill, said it was about the sustainability of the fund and that it would require Big Tech, as well as broadband providers and other users, to be added to the base of those having to pay into the fund. If past is prologue, that cost will be passed along to customers.

Wicker said expanding the base would ensure support for rural broadband "for years to come" and lower consumer bills. "These companies have benefited from the connectivity the USF supports but have not yet had to contribute," he said.

Also approved was a related bill, the 3692 Network Equipment Transparency (NET) Act, which requires the FCC to “evaluate and consider the impact of the telecommunications network equipment supply chain on the deployment of universal service." The FCC is specifically asked, to the extent there is relevant data, to "determine whether a lack of network equipment significantly impacted the deployment of advanced telecommunications capability during the applicable year.”

Bill backer Sen. John Hickenlooper (D-Colo.) said that closing the digital divide is a bipartisan goal and that a resilient supply chain is a key to achieving that “federally funded goal.” He said companies in his home state of Colorado were complaining about delays in getting batteries, antennas and fiber-optic cable, all crucial to broadband buildouts.

Hickenlooper said the bill will charge the FCC with monitoring and reporting any supply chain delays to Congress. ■