Tech

Coming soon: A GOP majority at the FCC?

With help from Leah Nylen and John Hendel

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— Race against the clock: As this year’s legislative calendar winds down, Democrats are afraid that the FCC will soon have a Republican majority.

— Getting creative: The FTC is using an obscure legal authority to crack down on for-profit colleges, a move that could signal changes in how it goes after the tech industry.

— Broad(band) impact: Senators are discussing the FCC’s program to expand broadband access today, as they explore the importance of telehealth amid the pandemic.

IT’S THURSDAY, OCT. 7. WELCOME TO MORNING TECH. I’m your host, Benjamin Din. Are you being vetted for an administration position? Let me know!

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WILL THERE BE A GOP-DOMINATED FCC? — That’s the question on everyone’s mind, and lawmakers are getting frustrated with the Biden administration’s lack of urgency in appointing a fifth commissioner at the FCC, John reports for Pros in a story out this morning.

“There’s no good excuse,” Sen. Ben Ray Lujan (D-N.M.) told John. “I’m absolutely fearful that what the administration is setting up is a 2-1 Republican majority FCC under a Democratic administration. That is unacceptable.”

— How we got here: The five-member agency has been down a commissioner since former GOP Chair Ajit Pai vacated the position during the presidential transition. Democratic lawmakers and progressive groups expected President Joe Biden to move quickly on a nominee, since a fully staffed FCC would be crucial to achieving progressive goals like reinstating net neutrality rules and increasing transparency around internet billing. Nearly nine months in, Biden still hasn’t made his pick.

Making matters complicated, acting Chair Jessica Rosenworcel’s term lapsed in June 2020, which means she’ll have to leave the commission by the end of the year unless Biden nominates her and the Senate confirms her to another five-year term — a Herculean task with so few legislative days left this year and so much else on Congress’ schedule. With Rosenworcel out, the remaining Democrat, Geoffrey Starks, would become acting chair. He would have the power to set the voting agenda at monthly open meetings, but the two Republican commissioners could outvote him on every item if they so chose.

— A historic delay: Biden has also lagged on naming a permanent chair for the agency, taking longer than any other president. (The closest parallels are Jimmy Carter and Richard Nixon, who made their decisions in mid-September.)

Rep. Anna Eshoo (D-Calif.), who supports Rosenworcel for permanent chair, lamented the White House inaction during a Wednesday Energy and Commerce hearing. “I think it’s troubling,” she said. “The FCC should not be left without a permanent chair being named.”

FTC EXPANDS ITS OPTIONS — Privacy advocates cheered the FTC’s decision to revive its rarely used “penalty offense authority” against for-profit colleges that make misleading or deceptive claims, a move that shows the agency is expanding its enforcement options after the Supreme Court earlier this year gutted its Section 13(b) authority to seek monetary damages from companies that engage in illegal conduct.

— Tech implications: The agency could use this penalty offense authority to target various other cases, including several involving tech — and it should do so, FTC Commissioner Rohit Chopra and his then-adviser Samuel Levine argued in a paper published last October. (Levine is now director of the FTC’s bureau of consumer protection.)

Some examples they cited: gig economy companies that mislead workers about how much money they can make; companies that employ influencers for posts or fake reviews without disclosing that they’re sponsored; and deceptive data practices, such as when companies tell users they’re collecting data for one purpose and then use that data for another.

“The penalty offense authority is an underused tool in the FTC’s toolkit, and one of the most powerful authorities for addressing data abuse,” tweeted John Davisson, senior counsel at the Electronic Privacy Information Center, an advocacy group, in response to the agency’s decision. (EPIC urged the FTC in June to use this same power to protect privacy.)

— How it works: FTC Chair Lina Khan said Wednesday the agency was “resurrecting a dormant authority to deter wrongdoing and hold accountable bad actors who abuse students and taxpayers.” The authority, granted to the FTC in 1975, allows the agency to fine companies if they knowingly engage in behavior the FTC has deemed “unfair or deceptive” in a previous case, with fines potentially reaching more than $43,000 per violation per day.

The practice was largely abandoned in the 1980s, and the last time it was used was in a 2013 case where the FTC penalized Amazon, Macy’s, K-Mart and others for mislabeling rayon products as environmentally friendly bamboo.

TAKING A LOOK AT TELEHEALTH — Brendan Carr is testifying before the Senate Commerce telecom panel this morning, the first sitting FCC commissioner to appear before lawmakers in more than a year. The topic of the day: the state of telehealth, especially amid the pandemic, and how to remove barriers to accessing it. Lawmakers will also discuss the importance of broadband during a public health crisis.

— Why Carr? The Republican commissioner, who will testify alongside other witnesses, played a key role in launching the FCC’s Connected Care Pilot Program, which helps cover the cost of broadband connectivity, among other things, for low-income or veteran patients to access connected care services. (The FCC has also launched similar efforts, such as the Covid-19 Telehealth Program and Rural Health Care Program, and is in charge of doling out billions to boost broadband access.)

— On lawmakers’ minds: Luján, who chairs the subcommittee, is expected to highlight the need to close the digital divide so all Americans have access to telehealth, particularly those in Native American and Hispanic communities and rural areas. “The solution must include access to affordable broadband Internet service, support for connected devices, and access to digital literacy training,” he will say, per prepared remarks shared with MT.

Panel ranking member John Thune (R-S.D.) will emphasize the importance of telehealth in rural communities, advocate for increased broadband expansion to those areas and push for broadband funding to go to “truly unserved areas,” according to his prepared remarks.

— New addition: Christianna Barnhart is joining the telecom subcommittee as senior counsel. Her appointment comes as two of the committee’s top telecom staffers, John Branscome and Shawn Bone, are leaving for industry gigs. She previously led the tech and telecoms team for Sen. Brian Schatz (D-Hawaii), the panel’s former ranking member. Barnhart was vice president of regulatory affairs at Charter Communications and a former adviser to Rosenworcel at the FCC, where she managed the Rural Health Care Program.

THE OTHER ANTITRUST NOMINEE — DOJ antitrust nominee Jonathan Kanter, who won bipartisan support Wednesday, wasn’t the only one fielding antitrust questions at the Senate Judiciary confirmation hearing: Judge Lucy Koh, currently a trial judge in San Jose and Biden’s pick for the U.S. Court of Appeals for the 9th Circuit, got several about her decision in the FTC’s antitrust case against Qualcomm.

— Flashback: Koh sided with the FTC in 2019, ruling that the way that Qualcomm licensed essential technology for cellular communications violated antitrust law. The 9th Circuit overturned that decision in August 2020 and the FTC’s efforts to appeal the 9th Circuit decision were unsuccessful. On Wednesday, GOP Sens. Tom Cotton of Arkansas and Thom Tillis of North Carolina both quoted the 9th Circuit’s decision that Koh’s ruling was an “improper excursion beyond the outer limits” of the law.

— Antitrust is hard: Koh defended her decision in the Qualcomm case, saying she had sought to apply two earlier 9th Circuit rulings on licensing similar patents. “The 9th Circuit decision is the controlling law and that is what I am going to apply,” she said. “But I did want to let you know at the time, what was in my mind — I really did think I was following the law and I really sincerely was trying to do my job.”

“Personally for me, antitrust is a really complex area of the law,” she added. (MT agrees.)

Olivier Sylvain is now senior adviser to Khan at the FTC. The Fordham Law School professor has advocated for significant changes to Section 230 of the Communications Decency Act, the tech industry’s legal liability shield. … Trevor Theunissen is now VP of government affairs at Shipt. He previously was director of public policy and comms at Uber. … Corey Goldstone is joining Amazon as a public relations specialist. He previously was senior comms manager at the Campaign Legal Center, and is a GMMB and ReThink Media alum. … Laura G. Brent joins the Center for a New American Security’s technology and national security program as a senior fellow. She previously served on the NATO International Staff and is a Homeland Security alum.

AT&T announced a slate of hires for its Hill staff, all joining as AVP for federal relations: Lin Whitehouse, Jeremy Pederson, Marc Gonzales and James Robertson. Whitehouse spent a decade working with House Majority Whip Jim Clyburn. Pederson was most recently at USTelecom and is a Frontier Communications and Rep. Gus Bilirakis (R-Fla.) alum. Gonzales was also at USTelecom and served as chief of staff to former Rep. Gene Green (D-Texas). Robertson was most recently at CTIA and worked on the Hill in various roles, including in the offices of Bilirakis and his father, Michael Bilirakis, and as staff director for a House Oversight subcommittee. … WTA — Advocates for Rural Broadband announced its new officers: Jimmy Todd as president, Pat McElroy as VP, Jason Williams as secretary/treasurer and David Shipley as past president.

Behind the empire: “How AT&T helped build far-right One America News.” Reuters has more.

Under pressure: Facebook is hitting pause on some of its new products, as they undergo “reputational reviews,” via WSJ.

Firsthand knowledge: “I Designed Algorithms at Facebook. Here’s How to Regulate Them,” a former Facebook data scientist writes in NYT Opinion.

Can we tech this? “Google wants to use AI to time traffic lights more efficiently,” Reuters reports.

Let’s do it: A judge granted YouTube’s motion to transfer a Section 230 suit filed against it by former President Donald Trump from Florida to Northern California.

GOP dissent: Changes to the merger review process could undermine the Hart-Scott-Rodino Act, Republican FTC Commissioner Noah Phillips argues in Global Competition Review.

Tips, comments, suggestions? Send them along via email to our team: Bob King ([email protected]), Heidi Vogt ([email protected]), John Hendel ([email protected]), Alexandra S. Levine ([email protected]), Leah Nylen ([email protected]), Emily Birnbaum ([email protected]), and Benjamin Din ([email protected]). Got an event for our calendar? Send details to [email protected]. And don’t forget: Add @MorningTech and @PoliticoPro on Twitter.

SEE YOU TOMORROW!



Coming soon: A GOP majority at the FCC? Source link Coming soon: A GOP majority at the FCC?

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