Following weeks of speculation about a potential role for Columbia Law Professor Tim Wu in the Biden Administration, the White House announced on March 5 that Wu has been named Special Assistant to the President for Technology and Competition Policy. As an official housed in the National Economic Council (“NEC”), Wu will not directly command staff within federal agencies or set the agencies’ enforcement or regulatory agendas. Instead, Wu will most likely focus on coordinating federal agencies’ efforts to identify and address competition issues. Given his history, Wu could seek to have particular influence on the Federal Communications Commission (“FCC”) and Federal Trade Commission (“FTC”) as they shape their Biden Administration agendas.

Continue Reading Competition Policy Gets a Top Spot in the White House

The upcoming election will bring changes to the FCC, regardless of which party wins the White House. In this episode of Kelley Drye’s Full Spectrum, Partners John Heitmann and Steve Augustino are joined by Dana Wood, co-chair of Kelley Drye’s Government Relations and Public Policy (GRPP) practice, for a discussion of the potential organizational

In a move spurred by Twitter’s decision to fact-check a pair of President Trump’s tweets, the president recently signed a multi-pronged “Executive Order on Preventing Online Censorship” with the claimed intention of stopping online platforms from making content moderation decisions that discriminate against particular viewpoints. The President, along with other conservative political figures and commentators, have frequently claimed that social media platforms have used content moderation practices to stifle conservative speech. The Executive Order (“EO”) evokes the First Amendment, calling online platforms the 21st century “public square,” where people go to express and debate different views, and saying the allegedly biased content moderation practices undermine that free expression.

The most controversial aspects of the order are its interpretation of Section 230 of the Communications Decency Act (“CDA”)—the statutory provision that shields online service providers from liability for user-generated content and the decisions they make about how to moderate that content—and its attempt to prompt the Federal Communications Commission (“FCC”) to adopt regulations further interpreting the law. Reform of Section 230 has been under consideration in Congress for years, with Republicans and Democrats both offering different—and mostly contrary—critiques about how online platforms have failed to act in accordance with the statute while also benefitting from the liability protections.

Other directives in the EO attempt to elicit other parts of the federal government to discipline online platforms for their content moderation practices. Absent Congressional action, the EO’s directives appear to stand on shaky legal ground and are likely to have limited legal impact.  However, the issuance of the EO alone may be unlawful, at least according to a complaint challenging the constitutionality of the EO filed with the U.S. District Court in D.C. by the Center for Democracy & Technology (“CDT”). According to the complaint, the EO violates the First Amendment, which strictly limits the government’s ability to abridge speech, by retaliating against Twitter for exercising its right to comment on the President’s statements and because it “seeks to curtail and chill the constitutionally protected speech of all online platforms and individuals” by demonstrating the government’s willingness to retaliate against those who criticize the government.


Continue Reading Section 230 Executive Order Strikes Back at Twitter, But Legal Impact Likely to be Limited

For years, there have been critiques about the lack of procedures surrounding the review, by a group of Executive Branch agencies commonly referred to as “Team Telecom”, of applications before the Federal Communications Commission (“FCC” or “Commission”) for licenses and transaction approvals involving foreign ownership, including the absence of timeframes for completing reviews. The FCC tried to implement limited changes within its jurisdiction by launching a rulemaking, but that never progressed to a conclusion. Now, by Executive Order (“EO”) on April 4, 2020, President Trump established a framework to govern such reviews and clearly include reviews of existing licenses and authorizations even where there are no current mitigations. There are still a lot of unknowns regarding the new “Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector” (the “Committee”). It is too soon to know whether the Committee will bring a welcome measure of regularity to a previously unshackled process or will prove to be an even greater bane to applicants and licensees than the Team Telecom process its work will replace.

Continue Reading President Formalizes Executive Agency Review of FCC Applications and Licenses; Quick Action on FCC License Revocation