Dec. 17, 2020, 8:29 a.m. EST

What a Biden FCC means for social-media and internet regulation

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Chris Matthews

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The Digital Divide

Indeed, the industry itself has called on Congress to pass new laws that would cement net neutrality rules without the FCC needing reclassify broadband as a Title II service — a move that would open the door for much more stringent regulation like price controls.

“The industry is afraid that Title II will open the door to utility-style regulation,” Wood said. Though he doesn’t think the FCC should engage in rate setting, he argued that the Title II designation is essential for ensuring all Americans have access to affordable, high-speed internet.

One way to close this “digital divide” that leaves tens of millions of Americans without high-speed internet, would be to force broadband internet providers to sell wholesale access to cable lines to competitors at a reasonable rate, thus spurring competition in an industry where monopoly markets are common, Wood said. According to the Institute for Local Self-Reliance, 77 million Americans have only one choice of broadband internet providers.

ISPs are steadfastly against such regulations, saying it would deter companies from spending money on building out and upgrading their networks. “ISPs have built their businesses for decades, investing billions of dollars, on the promise that they were not under the heavy yoke of Title II,” Michael Powell, president and CEO of the internet and Television Association told Congress last year.

The controversial nature of Title II regulation could lead the FCC to attempt other methods to close the digital divide, especially if Congressional gridlock leaves the commission evenly split between the parties.

“I expect a period of neutrality on net neutrality and Title II, given the realities the administration, the FCC and Congress face,” said Brookings’ Kerry. He added that a compromise position would be to expand and make more generous the FCC’s Lifeline program that provides subsidies to lower income Americans to purchase internet access.

Section 230

Meanwhile, the debate over the law which gives social media companies liability protection for most material posted by its users, or Section 230 of the 1996 Communications Decency Act, has taken center stage in the public imagination.

“Some of the attention that was paid to net neutrality by people in Washington in past years has shifted over to the tech platforms and things like section 230 and privacy and antitrust,” said Paul Gallant, a former FCC attorney and managing director at Cowen & Co.

President Trump brought attention to the issue in recent months, arguing that social media companies like Facebook Inc. /zigman2/quotes/205064656/composite FB +1.96% and Twitter Inc. /zigman2/quotes/203180645/composite TWTR +2.01% should be stripped of liability protection because of an alleged anti-conservative bias in their content moderation. He plans to veto a recently passed defense-spending bill because it does not include a repeal of Section 230, White House press secretary Kayleigh McEnany said Tuesday.

President-elect Biden has also come out in favor of eliminating Section 230, but it’s not entirely clear what either party wants to achieve by through repeal, other than limiting the spread of content they find objectionable.

FCC general counsel Thomas Johnson argued in October that the commission has the legal authority to amend Section 230 through the rule making process, and outgoing Commissioner Pai announced that the FCC would move forward with efforts to “clarify” the meaning of section 230. Congress, however, would have greater ability to amend the law.

“Congress will make a  run at passing a 230 bill, but the parties start from two different places I’d be surprised if it actually passes,” Gallant said. “More realistic is tougher self regulation proposals in place of legislation.”

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