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Former FCC Commissioners Reflect on Changes Since 1996 Telecommunications Act

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Former Federal Communications Commissioner Mike O'Rielly on the webinar

February 9, 2021 – As 2021 marks the 25-yearanniversary of the Telecommunications Act, former Federal Communications Commissioners Mike O’Rielly and Harold Furchtgott-Roth reminisced Monday on their time in Congress as staff members when the law was passed. The Hudson Institute hosted the conversation.

The Telecommunications Act was the first major update to telecommunications law since 1934, and the two former commissioners reflected onhow much the internet has shifted the focus of technology legislation.

O’Rielly said the “heart of the legislation” was looking at local and long-distance telephone company markets and opening them to more competition, but “no one knew at the time that the internet would go in a different direction,” he said.

“No one really figured out at the time what was going to happen as broadband and online technology would take over from circuit-switch technologies,” agreed Furchtgott-Roth.

“These markets that we thought were so important back in 1996, long-distance services, they don’t exist anymore,” he said. “Technology has changed and provided a different and a superior form of competition than the [Act] could have ever imagined,” he said.

Four of the biggest tech companies today—Amazon, Google, Facebook, Tesla—didn’t even exist 25 years ago, Furchtgott-Roth said, using them as examples of how much technology and the market has changed. “All of which have a very active role directly or indirectly in the communication space,” he said.

The two also expressed surprise at how prominent some of the law’s provisions have become, and how rarely the FCC uses other provisions.

O’Rielly said that even though the preamble to the law was written as a description and had no legal merit, that language “has been abused” by courts and by the FCC even though, in his view, the preamble is “something that has no statutory weight.”

Section 230 a new focus for concern

In recent months Section 230 of the Act, which grants immunity to online platforms for content provided by their users, has become a major conversation for Congress and in public discourse, due to controversial topics like the election, COVID-19, and the U.S. Capitol riot on January 6, which led to Donald Trump’s ban from Twitter and Facebook, and the shutting down of Parler, a conservative-led competitor to Twitter.

“Everyone agrees that Section 230 is worthy of review or some type of reform, but they come from different perspectives,” O’Rielly said. Republicans and conservatives are worried about censorship on the online platforms, while Democrats on the other side are worried about the spread of misinformation without any correction or policing, he said. “Those two things make it really hard to find a middle ground, even if everyone agrees on the overall premise of some type of reform,” he said.

Furchtgott-Roth mentioned two parts of the Act that he thought would have been used more often. First, the forbearance clause from Section 10, which gives the FCC the option to not enforce parts of the Act if certain conditions are met by entities. Second, regulatory review from section 11, which allows the FCC to review its own rules.

On being questioned about reforming the Telecommunications Act, O’Rielly said that Congress needs to be forward thinking, not constantly fixing previous legislation, and that they need to be specific in their statutes for what they want and do not want federal agencies to do.

The anniversary also received praise from members of Congress and industry groups on Monday. Rep. Anna Eshoo, D-Calif, and Sen. Ed Markey, D-Mass and co-author of the Act, said Congress must revisit the law to bring up-to-speed demands for better broadband.

Meanwhile, FirstLight Fiber CEO Kurt Van Wagenen and Incompas CEO Chip Pickering suggested the new-look White House and Federal Communications Commission make broadband deployment a top agenda item to usher in connectivity in underserved areas.

Reporter Tim White studied communication and political science at the University of Utah, and previously worked on Capitol Hill for a member of Congress. A native of Salt Lake City, he escapes to the Pacific Northwest as often as he can. He is passionate about politics, Star Wars, and breakfast cereal.

China

New Leadership and Priorities for Republican-Led Energy and Commerce Committee

The new chair renamed three subcommittees, hinting at the GOP’s goals for the coming term.

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Photo of Rep. Cathy McMorris Rodgers in 2018 by Gage Skidmore, used with permission

WASHINGTON, January 27, 2023 — Rep. Cathy McMorris Rodgers, R-Wash., recently named chair of the House Energy and Commerce Committee, announced on Wednesday the new Republican leadership and membership of each subcommittee, giving insight into which members of Congress will be at the forefront of key technology decisions over the coming term.

McMorris Rodgers also announced changes to the committee’s structure, renaming three subcommittees and shifting some of their responsibilities. The changes aim to “ensure our work tackles the greatest challenges and most important priorities of the day, including lowering energy costs, beating China and building a more secure future,” McMorris Rodgers told Fox News.

Rep. Frank Pallone, Jr., D-N.J. — now the committee’s ranking member after serving as chair for the past four years — announced on Friday each subcommittee’s Democratic membership and leadership, and named Rep. Kim Schrier, D-Wash., as the vice ranking member for the full committee.

Rep. Kelly Armstrong, R-N.D., who will serve as the committee’s vice chair, is a vocal critic of Big Tech. In 2021, he was one of several Republicans who championed major reforms to Section 230 of the Communications Decency Act.

The committee’s new names hint at some of the ways that the committee’s priorities may shift as Republicans take control. The former Consumer Protection and Commerce Subcommittee is now titled the Innovation, Data and Commerce Subcommittee and will be chaired by Rep. Gus Bilirakis, R-Fla., alongside Ranking Member Jan Schakowsky, D-Ill.

Bilirakis and McMorris Rodgers have already announced the subcommittee’s first hearing, which will focus on U.S. global technology leadership and competition with China.

The Communications and Technology Subcommittee, now led by Chair Bob Latta, R-Ohio, and Ranking Member Doris Matsui, D-Calif., also emphasized competition with China in the announcement of a hearing on the global satellite industry.

Latta has previously spoken out against the total repeal of Section 230, but he has also expressed concerns about the extent to which it protects tech companies. In an April 2021 op-ed written jointly with Bilirakis, Latta accused social media platforms of engaging in “poisonous practices… that drive depression, isolation and suicide.”

The Environment, Manufacturing and Critical Minerals Subcommittee, formerly known as the Environment and Climate Change Subcommittee, will be led by Chair Bill Johnson, R-Ohio and Ranking Member Paul Tonko, D-N.Y.

The Energy Climate, and Grid Security Subcommittee, formerly known as the Energy Subcommittee, will be led by Chair Jeff Duncan, R-S.C., and Ranking Member Diana DeGette, D-Colo.

The Health Subcommittee will be led by Chair Brett Guthrie, R-Ky., and Ranking Member Anna Eshoo, D-Calif. The Oversight and Investigations Subcommittee will be led by Chair Morgan Griffith, R-Va., and Ranking Member Kathy Castor, D-Fla.

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Digital Inclusion

CES 2023: Congressional Oversight, Digital Equity Priorities for New Mexico Senator

Sen. Lujan once again voiced concern that the FCC’s national broadband map contains major inaccuracies.

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Photo of Sen. Ben Ray Lujan, D-N.M., in February 2018 by Keith Mellnick used with permission

LAS VEGAS, January 6, 2023 – Sen. Ben Ray Lujan on Friday endorsed “oversight at every level” of executive agencies’ broadband policies and decried service providers that perpetuate digital inequities.

Lujan appeared before an audience at the Consumer Electronics Show with Sen. Mark Warner, D-Va., and Sen. Jacky Rosen, D-Nev., to preview the tech-policy priorities of the 118th Congress.

Among Washington legislators, Senators had CES 2023 to themselves: Representatives from the House of Representatives were stuck in Washington participating on Friday in the 12th, 13th and 14th votes for House Speaker.

Congress allocated $65 billion to broadband projects in the Infrastructure Investment and Jobs Act of 2021, the bulk of which, housed in the $42.45 billion Broadband Equity, Access, and Deployment program, is yet to be disbursed. The IIJA funds are primarily for infrastructure, but billions are also available for digital equity and affordability projects.

Several federal legislators, including Sen. John Thune, R-S.D., have called for close supervision of Washington’s multitude of broadband-related programs. At CES on Friday, Warner argued that previous tranches of broadband funding have been poorly administered, and Lujan once again voiced concern that the Federal Communications Commission’s national broadband map, whose data will be used to allocate BEAD funds, contains major inaccuracies.

Affordable, high-speed broadband is now a necessity, stated Warner. Lujan argued that policy must crafted to ensure all communities have access to connectivity.

“The [Federal Communications Commission] is working on some of the digital equity definitions right now…. I don’t want to see definitions that create loopholes that people can hide behind to not connect communities,” the New Mexico senator said, emphasizing the importance of “the digital literacy to be able take advantage of what this new connection means, so that people can take advantage of what I saw today [at CES].”

At a Senate hearing in December, Lujan grilled executives from industry trade associations over allegations of digital discrimination.

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Congress

Omnibus Bill Includes FCC Spectrum Auction Extension, TikTok Ban on Government Devices

The spending package includes an extension of the FCC’s auction authority to March 2023.

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Photo of Rep. Jan Schakowsky, D-IL.

WASHINGTON, December 20, 2022 – A massive omnibus spending bill for fiscal 2023 released Tuesday includes a provision to extend the Federal Communications Commission’s spectrum auction authority at least until March 2023.

The commission’s authority has already been extended from September to December. But Tuesday’s $1.7 trillion appropriations bill to power the government through September would extend that authority further to March 9, 2023.

Experts and FCC officials have warned about letting lapse the commission’s authority to auction the valuable airwaves, which power wireless communications services.

Meanwhile, a bill introduced earlier this year, would extend the commission’s authority to March 31, 2024.

TikTok ban on government devices

The omnibus bill also includes a ban on video sharing app TikTok on government devices, cited in the bill as the “No TikTok on Government Devices Act.” The Chinese-owned company has been flagged as a possible national security threat because of its ties to the Chinese Communist government.

The provision requires that not later than 60 days after the bill’s enactment, the director of the Office of Management and Budget, in consultation with relevant agencies, “develop standards and guidelines for executive agencies requiring the removal of any covered application from information technology.”

The ban also covers any further apps developed or owned by TikTok parent company ByteDance.

Earlier this month, Maryland moved to eliminate the app from government devices and networks.

Consumer protection, cybersecurity measures

The sprawling bill also includes a provision to establish a national standard for online seller transparency and require the Federal Trade Commission to report on cross-border cyber attacks.

Rep. Frank Pallone, D-NJ., and Jan Schakowsky, D-IL., advocated for enhanced protections in the bill that puts the FTC at its center. That includes a Schakowsky-authored provision establishing a national standard – enforced by the competition agency and state attorneys general – that requires online platforms to verify the identity of high-volume third-party sellers so that consumers can get basic identification on the sellers.

Another provision, also authored by Schakowsky — chair of the Consumer Protection and Commerce Subcommittee — would require the FTC to report on cross-border complaints about ransomware and other cyber attacked committed by foreign individuals, companies and governments, specifically Russia, China, North Korea, and Iran.

Over the past two years, the U.S. has been the subject of major cyberattacks that struck financial services, oil transport, and software companies.

“This end-of-year package is in lock step with our Committee’s commitment to put consumers first,” said the representatives in a joint statement. “It includes legislation that will help curb the onslaught of counterfeit, defective, and unsafe products available to Americans shopping on third-party e-commerce sites—a major source of fake and unsafe goods. It also includes commonsense provisions to keep dangerous furniture products that can tip over on small children off the market and out of our homes.”

Congress is reportedly pushing for the passing of the bill before Christmas.

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