In recent months, we have seen concerted attempts to reign in digital and social media from all along the political spectrum – from Washington, in the states and even internationally.  We thought that we would look at some of those efforts and their motivations today.  We will look at many of these issues in more detail in future articles.

Towards the end of last year, the Trump Administration sought to strip social media platforms of Section 230 protections because of their alleged bias against conservative speakers (see our articles here and here).  A similar perception seems to underlie the recently proposed Florida legislation that seems to create for social media a policy similar to the equal opportunities (or “equal time”) policy that applies to broadcasters – a social media service cannot “de-platform” a political candidate if it allows the opposing candidate access to that platform.  That proposed legislation also has announced goals of requiring clear rules for access and editing of political views on such sites.  A press release about that legislation is here, though the actual text does not yet seem to be available for review.
Continue Reading Everyone Seems to Want to Regulate Online Media – But Can They?  Setting the Stage- Looking at the Range of Regulatory Proposals

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • On November 12, the notice was published in the Federal Register of the lifting of the filing freeze for certain

November is one of those few months with no routine FCC filing obligations (no renewals, reports, fees or other regularly scheduled deadlines.  While that might seem to suggest that you can take time that you normally devote to regulatory actions to begin your holiday preparations even in this most unusual year, there are still many issues to consider, and you can also use this month to plan for complying with deadlines that fall in December.

While there are no significant comment dates on broadcast matters yet set in November, look for dates to be set in the FCC’s proceeding to determine whether there should be a limit on the number of applications that one party can file in the upcoming window for the filing of applications for new noncommercial, reserved band FM stations.  See our article here on the FCC’s request for comments in this proceeding.
Continue Reading November Regulatory Dates for Broadcasters: Rulemaking Comments, Hearings on Diversity and a New Commissioner, an FCC Open Meeting and More

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC’s International Bureau released a Public Notice on its review of the requests for “lump sum reimbursement requests” for

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC set the comment dates for its proposal for changing the cost to file various broadcast applications. The new

Here are some of the regulatory and legal actions and developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • Political advertising will continue to blanket the airwaves for the next month and a half and

Here are some of the regulatory and legal actions and developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC released its Report and Order on annual regulatory fees for fiscal year 2020 and,

Here are some of the regulatory and legal actions and developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC acted this week on two media modernization items that had been teed up for

The question about what to do with the protections offered by Section 230 of the Communications Decency Act took another turn this week, when Joe Biden suggested that online platforms needed to take responsibility for the content posted on them and correct misinformation in those ads.  That position is seemingly the opposite of the President’s Executive Order about which we wrote here and here, which seemingly suggests that no censorship should be applied against political speech on these platforms – or certainly no censorship against certain kinds of speech that is not applied against speech from all other parties on that platform.  Facebook almost immediately posted this response, defending its position not to censor candidate’s speech and analogizing it to the position that television and radio broadcasters are forced by Congress to take – where by law they are not allowed to refuse to run a political ad from a candidate because of its content and they are shielded from liability because of their inability to censor these candidate ads.  Facebook took the position that, if Congress wants to regulate political speech, it should pass laws to do so, but that Facebook would not itself be a censor.  That position reminded us of an article that we wrote back in January when there were calls to make Facebook stop running political ads comparing the regulatory schemes that apply to political ads on different platforms.  Given its new relevance in light of the sudden prominence of the debate over Section 230, we thought that we would rerun our earlier article.  Here it is – and we note how we seemingly anticipated the current debate in our last paragraph:

[In January], the New York Times ran an article seemingly critical of Facebook for not rejecting ads  from political candidates that contained false statements of fact.  We have already written that this policy of Facebook matches the policy that Congress has imposed on broadcast stations and local cable franchisees who sell time to political candidates – they cannot refuse an ad from a candidate’s authorized campaign committee based on its content – even if it is false or even defamatory (see our posts here and here for more on the FCC’s “no censorship” rule that applies to broadcasting and local cable systems).  As this Times article again raises this issue, we thought that we should again provide a brief recap of the rules that apply to broadcast and local cable political ad sales, and contrast these rules to those that currently apply to online advertising.
Continue Reading Facebook Defends Not Censoring Political Ads – Looking at the Differences In Regulation of Political Speech on Different Communications Platforms

We summarized the provisions of Section 230 of the Communications Decency Act on Monday, looking at the application of the law that the President has sought to change through the Executive Order released last week.  Today, it’s time to look at what the Executive Order purports to do and what practical effects it might have on media companies, including broadcasters.  As we noted in our first article, the reach of Section 230 is broad enough that any company with an online presence where content is created and posted by someone other than the site owner is protected by Section 230 – so that would include the online properties of almost every media company has.

The Executive Order has four distinct action items directed to different parts of the government.  The first, which has perhaps received the most publicity in the broadcast world, is the President’s direction that the Department of Commerce, acting through its National Telecommunications and Information Administration (NTIA – the Executive Branch office principally responsible for telecommunications policy), file a petition for rulemaking at the FCC.  This petition would ask that the FCC review Section 230 to determine if the protections afforded by the law are really as broad as they have been interpreted by the courts.  The Executive Order suggests that the FCC should review whether the ability granted by the law for an online platform to curate content posted by others – the “Good Samaritan” provisions that we wrote about on Monday – could trigger a loss of protections from civil liability for third-party content if sites exercise the curation rights in a manner that is not deemed to be in “good faith”.  The Executive Order directs this inquiry even though the protections for hosting online content are in a separate subsection of the law from the language granting the ability to curate content, and the protections from liability for third-party content contain no good faith language.  The Order suggests that the FCC should find that there would not be “good faith” if the reasons given for the curation actions were “pretextual,” if there was no notice and right to be heard by the party whose content is curated, and if the curation is contrary to the service’s terms of use.  The Order suggests that the FCC should adopt rules to clarify these issues.
Continue Reading Looking at the President’s Executive Order on Online Media – Part 2, What Real Risk Does It Pose for Media Companies?