Senate Commerce Shows Divisions on Ligado, Trump Section 230 EO

The Senate Commerce Committee’s divide over FCC approval of Ligado’s L-band plan was again on display Wednesday during a commission oversight hearing, as expected (see 2006230059). The issue also came up during a committee confirmation hearing for Commissioner Mike O'Rielly (see 2006160062). There was an even clearer partisan divide among committee members about President Donald Trump’s May executive order directing NTIA to petition the FCC for regulations defining the scope of Communications Decency Act Section 230 (see 2005280060). Senate Commerce also drilled into broadband funding proposals amid the ongoing push to include money in future COVID-19 aid legislation.

The FCC’s public disputes with DOD and NTIA on the Ligado plan and with the Department of Commerce over potential effects that commercial use of 24 GHz spectrum would have on weather forecasting technology (see 1906120076) aren’t “just another sign of internal chaos” within the Trump administration, said Senate Commerce ranking member Maria Cantwell, D-Wash. “It seems to me that the agency has narrowed its interest in the standard for public broadband policy” and “defaults to the belief that the highest and best use of spectrum is always terrestrial broadband.” Cantwell was already on record opposing the Ligado decision (see 2005150061).

“The FCC should not be the place to just move forward but the place to have the discussion and make sure these issues are well addressed,” including on Ligado, Cantwell said. She wondered why the FCC can't “go back” and reexamine the GPS interference issues DOD identified during a May Senate Armed Services Committee hearing (see 2005060065) and elsewhere. Sen. Tammy Duckworth, D-Ill., also wondered why the FCC wouldn’t "reconsider” its order in light of NTIA’s petition (see 2005220055). “There does not appear to be a consensus” within the federal government on the plan based on the DOD and NTIA opposition, she said.

FCC Chairman Ajit Pai and other commissioners strongly defended the Ligado decision-making process, though Commissioner Jessica Rosenworcel noted willingness to revisit interference issues. FCC engineers’ evaluation of the Ligado plan “is solid” and the commission has made “many adjustments and changes” to accommodate interference concerns, Rosenworcel told Cantwell. “But I also want to respect” concerns about the “continuing viability” of GPS systems. If Pai “was interested in circulating a decision to us staying the decision … that would certainly be something I would support, because we’ve got to iron this kind of stuff out,” Rosenworcel said.

Senate Commerce Chairman Roger Wicker, R-Miss., aimed to dispel arguments DOD and other Ligado opponents have introduced into the debate, including that the FCC approved the L-band plan “in the dark of night on a weekend” and there wasn’t enough consultation with other federal agencies. Pai emphasized the FCC’s unanimity in approving the proposal and the “stringent conditions” it placed on Ligado’s operations. The FCC “had a very open door” policy with other agencies and shared its proposed decision with them months in advance of approving it, he said: “This process has gone on for long enough.”

Sen. Mike Lee, R-Utah, faulted the plan’s critics, saying they “darn well better come to the argument armed with something other than” vague claims of a national security threat. “That’s wrong, they know it’s wrong, and we can’t let them get away with it,” Lee said. He suggested the dispute should “be a warning sign” about the federal government’s spectrum policy coordination process and believes Congress should look at ways to “address this breakdown.”

O’Rielly suggested Congress legislate to improve NTIA’s structure for managing federal spectrum and to require federal agencies to disclose as part of the appropriations process the value spectrum they currently hold. That will require “a lot of heavy lifting” by Capitol Hill, he said. Rosenworcel cited the Lee-led Government Spectrum Valuation Act (S-1626), which would require the FCC, NTIA and OMB jointly determine the value of each federal agency's assigned spectrum (see 1811140057). She also suggested Congress consider revamping NTIA’s Interdepartment Radio Advisory Committee.

Section 230

Wicker and other Republicans noted their concerns about the current Section 230. Several emphasized the need for a legislative solution and downplayed Trump’s EO. The House Communications and Consumer Protection subcommittees also discussed Section 230 issues Wednesday (see 2006240048).

“I am deeply troubled by recent reports that suggest some online platforms are disproportionately censoring conservative voices or posing an unfair bias through their policies and terms of service,” Wicker said. Senate Commerce “will evaluate the merits of Section 230 and whether modifications are necessary to promote more transparency and accountability across internet platforms and services.” Senate Communications Subcommittee Chairman John Thune, R-S.D., previewed his later filing of the Platform Accountability and Consumer Transparency Act to address Section 230 concerns (see 2006240059).

Wicker and other Republicans noted reports that Google threatened to demonetize its advertising on online magazine The Federalist over its user-generated comment section, which the publication subsequently removed. Sen. Ted Cruz of Texas cited Twitter’s Tuesday decision to put a warning label on a tweet from Trump that warned attempts by protesters to set up an “autonomous zone” in Washington, D.C., similar to one in Seattle would be “met with serious force.” Sen. Marsha Blackburn of Tennessee invoked her Balancing the Rights of Web Surfers Equally and Responsibly (Browser) Act (S-1116) as a potential Section 230 solution that should have passed “years ago.” If Congress had enacted the Browser Act earlier, “we wouldn’t be where we are today” with online censorship, she said.

Sen. Richard Blumenthal of Connecticut and other Democrats focused on Trump’s EO, prodding the FCC commissioners to disavow it. Blumenthal said the order is “directing you to do something that you simply do not have the authority to do.” Sen. Tom Udall of New Mexico called the EO a “bad-faith attempt to retaliate” against criticism of Trump and urged the FCC not to “buckle” to the White House’s “demands.”

Trump’s order is “plainly and blatantly, simply an assault on the credibility and the legitimacy of the First Amendment, and of your agency,” Blumenthal said. “If you care about” the commission’s integrity, “you will stand up for it.” Blumenthal urged the commission to deal with a coming NTIA rulemaking petition on the matter “as quickly as you can after it is filed.”

Pai repeatedly declined to express a view on the rulemaking Trump’s order seeks, though he noted his long-standing commitment to defend the First Amendment. Pai said he’s “not going to prejudge” the coming NTIA petition but will “always follow the law and follow the facts.” Rosenworcel said she opposes the order but is concerned about major tech companies' “absolute lack of transparency” and agrees “social media is frustrating.” Commissioner Geoffrey Starks said he’s “highly skeptical” of the FCC’s authority to address Section 230. Commissioner Brendan Carr believes there’s a place for Congress to legislate and a need for the FCC and other federal agencies to evaluate their policies. The government “can’t sit on our hands and do nothing” given the “immense concentration of power” social media platforms hold, he said.

Broadband

Wicker and other lawmakers highlighted their own broadband funding proposals. Wicker noted the importance of the FCC’s voluntary Keep Americans Connected pledge and said “we need to engage in a thoughtful debate about ways to transition from the pledge when it expires.” He also cited his Accelerating Broadband Connectivity Act (S-4021), which aims to accelerate broadband deployments by Rural Digital Opportunity Fund recipients (see 2006220059). Thune touted his Streamlining the Rapid Evolution and Modernization of Leading-edge Infrastructure Necessary to Enhance (Streamline) Small Cell Deployment Act. S-1699 aims to implement a “reasonable process and timeframe guidelines” for state and local small-cell consideration (see 1906030068).

Cantwell and others emphasized the need for specific broadband funding to address deficiencies identified during the COVID-19 pandemic. “We have a real opportunity here to close the digital divide, but I know it’s going to take being bold,” she said. “It won’t be accomplished through just incremental change or plus-upping some numbers. It will require significant investment.” Sen. Amy Klobuchar, D-Minn., touted her Keeping Critical Connections Act. S-3569 would set up a $2 billion FCC fund to compensate ISPs with fewer than 250,000 customers for free or discounted broadband services during the pandemic to low-income households that can't afford to pay their bills.

Wicker and others stressed the need for the FCC to implement the Broadband Deployment Accuracy and Technological Availability Act broadband mapping law (S-1822). Several Democrats pressed Pai on why he wants to proceed with RDOF funding distribution without first addressing inaccurate coverage data. The FCC seeks $65 million to implement S-1822 (see 2003230066). The current maps remain “an incomplete picture,” said Senate Communications ranking member Brian Schatz, D-Hawaii. Sen. Jon Tester, D-Mont., said he doesn’t “know how you’re going to put the money out” for RDOF without better maps.

Rosenworcel believes the FCC is making a false “choice between speed and accuracy” in deciding to proceed with the late October RDOF phase I auction when the government “needs to do both.” She believes the FCC should "reserve far more of [the RDOF] funds for a time when our maps are correct and accurate, because if we don’t, we will not have funds to get to every American." Pai pushed back, saying Rosenworcel’s concerns are “misplaced” given the RDOF phase I funding is targeted at areas that are known to be unserved. Rosenworcel wants to delay phase I “until the maps are perfect,” and “that’s not acceptable to me,” Pai said.

House Majority Whip James Clyburn of South Carolina and other House Democrats, meanwhile, filed their Accessible, Affordable Internet for All Act (HR-7302), which comprises the $100 billion broadband title of the Moving Forward Act infrastructure legislative package (HR-2) House Democrats already introduced (see 2006220054). Clyburn said he and other members of the all-Democratic House Rural Broadband Task Force said they decided to file HR-7302’s language as a stand-alone bill in a bid to provide multiple avenues to reach a bipartisan consensus. It’s “always good to get more than one bit at the apple,” Clyburn told reporters.

HR-7302 would allocate $9 billion for a Broadband Connectivity Fund to give eligible households “additional broadband benefit” and $5 billion for E-rate. It would allocate $5 billion for a proposed NTIA program for communities and public-private partnerships, reflecting the Broadband Infrastructure Finance and Innovation Act (HR-4127). Digital equity investments language mirrors a proposal in the Digital Equity Act (HR-4486/S-1167). There's also language from the House-passed Advancing Critical Connectivity Expands Service, Small Business Resources, Opportunities, Access and Data Based on Assessed Need and Demand (Access Broadband) Act. HR-1328/S-1046 would establish an NTIA Office of Internet Connectivity and Growth (see 1905080081).