Emerging Technologies Washington Update

August 6, 2020

Pardon Our Dust

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This week: FCC requests comment on social media order as White House withdraws O’Rielly nomination; U.S. Justice Department asks court to block California net neutrality law; FTC Commissioners testify before Senate Commerce on Section 230, antitrust; Congress voices support for Open Technology Fund; National Institutes of Health announces new COVID-19 testing technologies.

FCC Requests Comment on Social Media Order as White House Withdraws O’Rielly Nomination

On July 27, the Department of Commerce’s National Telecommunications and Information Administration (NTIA) filed a Petition for Rulemaking with the Federal Communications Commission (FCC) related to President Trump’s May Executive Order on Section 230 of the Communications Decency Act. FCC Chairman Ajit Pai announced on Monday the agency would collect public comment on the petition; initial comments are due by September 2 and reply comments are due by September 17. The Petition would have the FCC create regulations to clarify the scope of the liability protections afforded under Section 230 for third party users.

Also on Monday, President Trump withdrew Republican Commissioner Mike O’Rielly’s renomination to another five year term. O’Rielly has been a member of the FCC since 2013 and was confirmed for a second term in January 2015. His reappointment would have been retroactive to June 30, 2019 and would conclude in 2024, but now he must step down at year’s end.

Although President Trump has not commented on rescinding O’Rielly’s renomination, reports indicate the decision might have to do with the Commissioner’s reservations regarding the President’s Executive Order to clarify the scope of Section 230, and in particular whether the FCC has proper authority to limit social media companies’ legal protections. He expressed his concern in remarks last week before The Media Institute, whose primary mission is to promote freedom of speech. The decision could also relate to O’Rielly’s support for Ligado Network’s plan to use L-Band spectrum to support 5G and other Internet of Things services. Just last week, Senate Armed Services Committee Chairman Jim Inhofe (R-OK) placed a hold on O’Rielly’s renomination over the FCC’s Ligado order.

U.S. Justice Department Asks Court to Block California Net Neutrality Law

On August 4, the Department of Justice (DOJ) filed suit with the California Eastern District Court seeking an injunction against California’s net neutrality law as well as a declaration that the law is preempted based on the Federal Communication Commission’s (FCC) 2018 Restoring Internet Freedom Order, which specifically preempted state regulation of broadband, including net neutrality regulations.  FCC Chairman Pai said that he was pleased with the filing by DOJ.

California had agreed to hold its rule in abeyance until the validity of the FCC’s 2018 Restoring Internet Freedom Order was determined. The D.C. Circuit Court of Appeals made its determination in October 2019. 

FTC Commissioners Testify Before Senate Commerce on Section 230, Antitrust

On Wednesday, the Senate Commerce Committee held a Federal Trade Commission (FTC) oversight hearing during which all five commissioners testified on the Committee’s most pressing issues. In his opening statement, Chairman Wicker (R-MS) argued that the pandemic highlights the need for strong, uniform federal data privacy legislation, while Ranking Member Cantwell (D-WA) noted in her opening remarks that the pandemic has facilitated widespread fraud and scams online. Senators’ questions also touched on Section 230 reform, data privacy, and antitrust activity, among other topics.

In discussing Section 230, Chairman Wicker asked Chairman Simons what the FTC’s responsibilities are under President Trump’s Executive Order targeting the law. Simons said political speech is not within the Commission’s jurisdiction, as it only regulates commercial speech and even that is only to the extent it is alleged to be unfair or deceptive. Commissioner Chopra answered Sen. Wicker’s question on Section 230 generally saying Section 230 has been “overused and abused.” Sen. Thune (R-SD), who recently introduced legislation to amend Section 230, said consumers would benefit from its reform and Chairman Simons responded that the FTC often faces Section 230 defenses in court and that reform could help the it pursue enforcement.

In discussing data privacy, senators and commissioners alike pushed for federal privacy legislation, with several commissioners asserting that current FTC authority is insufficient to protect Americans’ data. However, there was disagreement on the role preemption should have in any federal privacy framework.  Democratic Commissioner Slaughter explained a federal privacy law should be a floor, not the ceiling, allowing states to add to privacy for their citizens.  Commissioner Phillips explained that uniformity is needed because data does not recognize borders.  When senators pressed the commissioners on antitrust activity, they highlighted the seriousness of investigations into the technology industry’s biggest players. In response to a question from Sen. Blumenthal (D-CT), Chairman Simons said that ongoing antitrust investigations are very active and have an “action-oriented mandate.” Simons also said the Commission is reexamining past consummate mergers and has the authority to undo them.

Congress Voices Support for Open Technology Fund

This week, lawmakers on both sides of the aisles called on the Trump Administration to release $20 million dollars Congress appropriated for the Open Technology Fund (OTF). The funding cutoff is currently preventing OTF from carrying out an estimated 80% of its work aimed at providing worldwide access to the internet and uncensored news platforms like Voice of America and Radio Free Asia. The funding dispute is tied to friction between OTF and Michael Pack, the newly appointed director of the U.S. Agency for Global Media (USAGM) who recently dismissed OTF’s Board and some senior officials.

House Foreign Affairs Committee Ranking Member Michael McCaul (R-TX) and Senate Judiciary Technology Task Force Chair Marsha Blackburn (R-TN) were among those who spoke up this week on OTF’s behalf. Senate Foreign Relations Committee Ranking Member Bob Menendez (D-NJ) was among the Democratic leaders to demand the Administration release the appropriations. The corporation will run out of money next month if the funds are not released.

National Institutes of Health Announces New COVID-19 Testing Technologies

On July 31, the National Institutes of Health (NIH) announced it will invest $248.7 million to develop new technologies to address challenges associated with COVID-19 testing. NIH’s Rapid Acceleration of Diagnostics (RADx) initiative awarded contracts to seven biomedical diagnostic companies to support their various new lab-based and point-of-care tests that have the potential to drastically increase the variety and availability of COVID-19 tests by millions per week as early as next month.

Four of the technologies offer innovations in laboratory-based testing technologies, including next generation sequencing and integrated microfluidic chips, which could significantly increase testing capacity and reduce the turnaround time for test results. The other three technologies use point-of-care mechanisms to provide nucleic acid and viral antigen tests that can produce rapid results at a variety of locations such as offices, childcare centers, nursing homes, and schools. Additionally, some of the tests offer more convenient sampling, such as saliva testing. The Food and Drug Administration (FDA) has been working with NIH and RADx external advisors to provide guidance on test validation and prioritize the review of emergency use authorizations (EUAs) for tests supported by RADx. Each of the seven companies have either received an EUA from the FDA or have applications in the process.