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Round-Up for the Week of July 15-19, 2024

In the wake of the 2024 Republican National Convention and in light of some recent controversy, we take a look at a proposed FCC agenda for 2025.

In January 2023, Spencer Chretien—a former Special Assistant to President Donald J. Trump and Associate Director of Presidential Personnel—introduced Project 2025, an effort organized by the Heritage Foundation "to lay the groundwork for a White House more friendly to the right." At the time, some 45 right-of-center organizations were working together on "restoring this country through the combination of the right policies and well-trained people." 

One pillar of Project 2025 is Heritage's 180-day Transition Playbook—called Mandate for Leadership—which includes a transition plan for each federal agency.

Heritage warns that few appointments to federal independent regulatory agencies will be as important as the President’s selection of the next chairman of the Federal Communications Commission (FCC). FCC Commissioner Brendan Carr wrote the playbook chapter on the FCC. The chapter does not purport to set forth a comprehensive agenda for the FCC. Rather, it focuses on selected issue areas that may quickly rise to the attention of a new Administration. The four identified policy priorities are:

1. Reining in Big Tech
2. Protecting America’s National Security
3. Unleashing Economic Prosperity
4. Holding Government Accountable

I. Reining in Big Tech

Although "Big Tech" is undefined by Commissioner Carr, he warns that it is attempting "to drive diverse political viewpoints from the digital town square." "Today," Carr writes, "a handful of corporations can shape everything from the information we consume to the places we shop." He identifies five fronts on which the next Administration should support FCC action.

1. Eliminate immunities that courts added to Section 230

Section 230 of the Communications Act of 1934, enacted as part of the Communications Decency Act of 1996, provides limited federal immunity to providers and users of interactive computer services. The statute generally precludes providers and users from being held liable—that is, legally responsible—for information provided by another person, but does not prevent them from being held legally responsible for information that they have developed or for activities unrelated to third-party content. Courts have interpreted Section 230 to foreclose a wide variety of lawsuits and to preempt laws that would make providers and users liable for third-party content. For example, the law has been applied to protect online service providers like social media companies from lawsuits based on their decisions to transmit or take down user-generated content. 

Through Section 230, Congress established that it is the policy of the United States:

• to promote the continued development of the Internet and other interactive computer services and other interactive media;
• to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
• to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
• to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and
• to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

During the next Administration, Commissioner Carr proposes that:

The FCC should issue an order that interprets Section 230 in a way that eliminates the expansive, non-textual immunities that courts have read into the statute. 

The next Administration should file a petition similar to the one filed by the National Telecommunications and Information Administration (NTIA) near the end of the Trump Administration calling for Section 230 reform.

The FCC should remind courts how the various portions of Section 230 operate.

The FCC can clarify that Section 230(c)(1) does not apply broadly to every decision that a platform makes. Rather, its protections apply only when a platform does not remove information provided by someone else. 

The FCC should clarify that the more limited Section 230(c)(2) protections apply to any covered platform’s decision to restrict access to material provided by someone else.

2. Impose transparency rules on Big Tech

At present, the FCC requires broadband providers to comply with a transparency rule: broadband providers must provide detailed disclosures about practices that would shape Internet traffic—from blocking to prioritizing or discriminating against content. Commissioner Carr proposes the FCC take a similar approach to Big Tech. The FCC could, he says:

• require platforms to provide greater specificity regarding their terms of service,
• hold platforms accountable by prohibiting actions that are inconsistent with those plain and particular terms.

"Within this framework, Big Tech should be required to offer a transparent appeals process that allows for the challenging of pretextual takedowns or other actions that violate clear rules of the road," Carr concludes.

3. Support legislation that scraps current approach

Carr proposes that the FCC should work with Congress on more fundamental Section 230 reforms that go beyond interpreting its current terms. Congress, he says, should do so by ensuring that Internet companies no longer have carte blanche to censor protected speech while maintaining their Section 230 protections. As part of those reforms, the FCC should work with Congress to ensure that antidiscrimination provisions are applied to Big Tech—including “back-end” companies that provide hosting services and distributed denial-of-service (DDoS) protection.

In all of this, Carr says, Congress can make certain points clear. It could focus legislation on dominant, general-use platforms rather than specialized ones. This could include excluding comment sections in online publications, specialized message boards, or communities within larger platforms that self-moderate. Similarly, Congress could legislate in a way that does not require any platform to host illegal content; child pornography; terrorist speech; and indecent, profane, or similar categories of speech that Congress has previously carved out.

4. Support efforts to empower consumers

The FCC and Congress should work together, Carr says, to formulate rules that empower consumers. Congress should be mindful of how we can return to Internet users the power to control their online experiences. One idea Carr highlights is to empower consumers to choose their own content filters and fact checkers, if any. The FCC should also work with Congress to ensure stronger protections against young children accessing social media sites despite age restrictions that generally prohibit their use of these sites.

5. Require that Big Tech begin to contribute a fair share to universal connectivity

To put the FCC’s universal service program on a stable footing, Congress should require Big Tech companies to start contributing an appropriate amount to the Universal Service Fund.

II. Protecting America’s National Security

Commissioner Carr says that during the Trump Administration, the FCC ushered in a new and appropriately strong approach to the national security threats posed by the Chinese Communist Party (CCP). There are, however, additional strong actions that the FCC can and should take to address the CCP’s malign campaign.

1. Address TikTok’s threat to U.S. national security

A new Administration should ban the application on national security grounds.

2. Expand the FCC’s Covered List of communications equipment and services that pose a national security risk

The FCC maintains a list of communications equipment and services that pose an unacceptable risk to the national security of the United States. It is known as the Covered List. However, the FCC must do a better job of ensuring that its Covered List stays up to date and accounts for changes in corporate names and forms. Therefore, a new Administration should create a more regular and timely process for reviewing entities with ties to the CCP’s surveillance state.

3. End the unregulated end run

China Telecom continues to provide services to data centers by offering the services on a private or “unregulated” basis.

A new Administration should work with the FCC to close this loophole. One way to do so would be for the FCC to prohibit any regulated carrier from interconnecting with an insecure provider.

4. Publish a foreign adversary transparency list

As part of the FCC’s ongoing work to secure our networks from entities that would do the bidding of our foreign adversaries, the FCC should do more to shine the light of transparency on the scope of the problem.

The FCC should compile and publish a list of all entities that hold FCC authorizations, licenses, or other grants of authority with more than 10 percent ownership by foreign adversarial governments, including the governments of China, Russia, Iran, Syria, or North Korea.¹

5. Fully fund the federal “rip and replace” program

In 2019, Congress established a $1.9 billion Secure and Trusted Communications Networks Reimbursement Program (known colloquially as the “rip and replace” program) to reimburse communications providers for the reasonable expenses they would incur to remove, replace, and dispose of insecure Huawei and ZTE gear. However, $1.9 billion is about $3 billion short of the total amount of funding needed to complete the rip and replace process.

Commissioner Carr suggests that a new Administration should ensure that the program is fully funded and should look first at repurposing and applying unused COVID-era emergency funds for this purpose.

6. Launch a Clean Standards Initiative

During the Trump Administration, the U.S. government launched a worldwide Clean Networks program which resulted in many of the U.S. government’s allies starting the process of ending their relationships with Huawei. 

Commissioner Carr writes, "It is time for an Administration to build and expand on this groundbreaking work by taking a similar approach to the standard-setting process."

7. Stop aiding the CCP’s authoritarian approach to artificial intelligence

Commissioner Carr says U.S. businesses are aiding Beijing in its effort to become the global leader in artificial intelligence (AI) by 2030.

"[I]t is time for an Administration to put in place a comprehensive plan that aims to stop U.S. entities from directly or indirectly contributing to China’s malign AI goals," Carr writes.

III. Unleashing Economic Prosperity

Commissioner Carr says the FCC needs to advance a pro-growth agenda that gives every American a fair shot at next-generation connectivity. "It is time for a return to the successful spectrum and infrastructure policies that prevailed during the Trump Administration—policies that enabled the U.S. to lead the world in 5G," he writes.

1. Refill America’s spectrum pipeline

The FCC and a new Administration should work together to develop a national spectrum strategy that both identifies the specific airwaves that the FCC can free for commercial wireless services and sets an aggressive timeline for agency action.

2. Facilitate coordination on spectrum issues

On the one hand, America’s global economic leadership depends on its ability to free spectrum that will power the U.S. commercial wireless industry. On the other hand, we must ensure that America’s national security and other federal agencies have access to the spectrum resources that they need to carry out their vital missions.

The White House should work with Congress to establish a spectrum coordination process that will work for both commercial and federal users.

3. Modernize infrastructure rules

The FCC should now explore action for the deployment of wired infrastructure by imposing limits on the fees that local and state governments can charge for reviewing those wireline applications and time restrictions on the government’s decision-making process.

The next Administration should also work to address the delays that continue to persist when it comes to building Internet infrastructure on federal lands. This is an area where the FCC itself has very little jurisdiction, so a new Administration should redouble efforts to require timely reviews and final actions by agencies with jurisdiction over federal lands, including the Bureau of Land Management and the U.S. Forest Service.

4. Advance America’s space leadership

The FCC should expedite its work to support low-earth orbit satellites like StarLink and Kuiper by acting more quickly in its review and approval of applications to launch new satellites. 

IV. Holding Government Accountable

Carr says federal technology and telecommunications programs have been plagued by a troubling lack of accountability and good governance. They would benefit from stronger oversight and a fresh look at eliminating outdated regulations that are doing more harm than good.

1. End wasteful broadband spending policies

Congress should therefore hold the agencies accountable so that taxpayer money is used effectively to promote broadband connectivity across the nation.

The next Administration should instruct the various departments and agencies that are administering broadband infrastructure funds to direct those resources to communities without adequate Internet infrastructure instead of to places that already enjoy broadband connectivity. 

A new Administration should eliminate government-funded overbuilding of existing networks.

2. Adopt a national coordinating strategy

A new Administration needs to bring fresh oversight to broadband infrastructure spending and put a national strategy in place to ensure that the federal government adopts a coordinated approach to its various broadband initiatives.²

The next Administration should ask the FCC to launch a review of its existing broadband programs, including the different components of the USF, with the goal of avoiding duplication, improving efficiency of existing programs, and saving taxpayer money.

3. Correct the FCC’s regulatory trajectory and encourage competition to improve connectivity

Carr writes that rapidly evolving market conditions counsel in favor of eliminating many of the heavy-handed FCC regulations that were adopted in an era when every technology operated in a silo. These include many of the FCC’s media ownership rules, which can have the effect of restricting investment and competition because those regulations assume a far more limited set of competitors for advertising dollars than exist today, as well as its universal service requirements.

FCC reliance on competition and innovation, Carr says, is vital if the agency is to deliver optimal outcomes for the American public.

The FCC should engage in a serious top-to-bottom review of its regulations and take steps to rescind any that are overly cumbersome or outdated.

The FCC should focus its efforts on creating a market-friendly regulatory environment that fosters innovation and competition from a wide range of actors, including cable-based, broadband-based, and satellite-based Internet providers.

2025

Introducing Project 2025, the Heritage Foundation says that historically a President’s power to implement an agenda is at its apex during the Administration’s opening days. To execute requires a well-conceived, coordinated, unified plan and a trained and committed cadre of personnel to implement it. In recent election cycles, presidential candidates normally began transition planning in the late spring of election year or even after the party’s nomination was secured. That, Heritage argues, is too late. 

That's why Project 2025 started so early—to make sure policymakers can begin work on a conservative agenda from the early days of the next Administration. Commissioner Carr has supplied the outline of the conservative telecommunications agenda.

Ethical Violation?

On July 17, 2024, 16 Members of Congress requested that the Office of Special Counsel, Office of Government Ethics, and Office of the Inspector General of the Federal Communications Commission investigate possible ethics violations by Commissioner Brendan Carr. They are concerned that Commissioner Carr may be misusing his official position as an executive-level employee of the FCC to craft and advance a political playbook to influence the presidential election in favor of Donald Trump, in violation of the Hatch Act and the Standards of Ethical Conduct for Employees of the Executive Branch. 

"It is alarming that Commissioner Carr was one of many Trump appointees to participate in this endeavor," the Members wrote. Although federal employees may certainly express their private opinions or engage in political activity in their personal capacity, they may not do so in their official capacity. Despite this requirement, Commissioner Carr used his official title to author the chapter of Project 2025 about the FCC. "This potential misuse of title raises serious questions about Commissioner Carr’s commitment to keeping his private political activities separate from his official duties."

Bio

FCC Commissioner Brendan Carr has nearly 20 years of private-sector and public-sector experience in communications and tech policy. Prior to his current position, Carr served as the FCC’s General Counsel. Earlier, he worked as an attorney at Wiley Rein LLP. Previously, he clerked on the U.S. Court of Appeals for the Fourth Circuit. After graduating from Georgetown University, he earned his JD magna cum laude from the Catholic University of America’s Columbus School of Law.

Notes

1. The Foreign Adversary Communications Transparency Act (H.R. 820) would mandate the FCC create and publish this list. The bill was approved by the House Energy and Commerce Committee on May 2024. The legislation awaits a vote on the House floor. A companion bill in the Senate (S. 2114) was introduced over a year ago and has not been acted upon. 
2. In May 2024, House of Representatives passed the National Telecommunications and Information Administration Reauthorization Act of 2024 (H.R. 4510). Tucked in the 100-page bill is a call for the National Telecommunications and Information Administration's (NTIA) Office of Internet Connectivity and Growth to develop and submit to Congress a national strategy to close the digital divide. [See www.benton.org/blog/national-strategy-close-digital-divide]

Quick Bits

• House Commerce Committee Leaders Open BEAD Investigation (House Commerce Committee)
• Wi-Fi Hotspots to Connect Students and Library Patrons (Federal Communications Commission)
• FCC Caps Exorbitant Phone & Video Call Rates for Incarcerated Persons & Their Families (Federal Communications Commission)
• Grading Internet for Good (NDIA)
• 5 Questions for the ACLU’s Jenna Leventoff (Politico)

Weekend Reads

• FCC Takes Steps to Update Broadband Data Collection Processes​ (Federal Communications Commission)
• The Efficacy of the Connect America Fund in Addressing US Internet Access Inequities (University of California Santa Barbara)
• Internet Usage Report 2024 (HighSpeedInternet.com)
• Special Issue: Information Access Practices: Introduction (Journal of Information Policy)

ICYMI from Benton

• Benton Institute Marks a Major Milestone on Road to Prison Phone Justice
• More RDOF Defaults on the Horizon?
• Broadband Deployment: Who’s the Cop on the Beat?
• How States Are Working to Achieve Education and Digital Equity Goals

Upcoming Events

Jul 23—Schools and Libraries Cybersecurity Pilot Program Webinar (FCC)

Jul 24—FCC Tribal Workshop (FCC)

Jul 25—Updates from NTIA's Digital Equity Program (National Telecommunications and Information Administration)

Jul 30—Direct Video Calling Forum (FCC)

Aug 7—August 2024 Open Federal Communications Commission Meeting (FCC)

Aug 14—Precision Agriculture Task Force (FCC)

The Benton Institute for Broadband & Society is a non-profit organization dedicated to ensuring that all people in the U.S. have access to competitive, High-Performance Broadband regardless of where they live or who they are. We believe communication policy - rooted in the values of access, equity, and diversity - has the power to deliver new opportunities and strengthen communities.

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