Regulating Social Media Editorial Policies 1st Amendment 'Gibberish': O'Rielly

Amid talk of federal regulation of social media platforms' editorial privileges, FCC Commissioner Mike O'Rielly called it "First Amendment gibberish" to argue such regulation is pro-free speech. He spoke to the Media Institute Wednesday, also seeking less regulation of other industries and to get localities out of cable franchising. The social media regulatory step would curtail free speech through government action, he said in prepared and actual remarks.

"We should all reject demands, in the name of the First Amendment, for private actors to curate or publish speech in a certain way," the commissioner told the industry audience. He said he wasn't criticizing the White House but "certain opportunists outside that realm."

O'Rielly is "digesting" NTIA's petition asking the commission to clarify Communications Decency Act Section 230 (see 2007270070). He said the FCC generally has little authority over tech platforms.

O’Rielly called Senate Armed Services Committee Chairman Jim Inhofe, R-Okla., “an American patriot” when asked about Inhofe’s move to block his reconfirmation in the chamber. Inhofe said Tuesday he placed a hold on O’Rielly that won’t end until he commits to “overturn” FCC approval of Ligado’s L-band plan (see 2007280039). O’Rielly said he needs to discuss the matter with Inhofe and wouldn't comment further in Q&A.

Free State Foundation President Randolph May and others criticized Inhofe through Wednesday for blocking O’Rielly’s confirmation. The hold “is a prime example of what’s wrong with Washington,” May tweeted on FSF’s account. “A nominee’s confirmation shouldn’t be bartered for a vote on a particular issue. If [Inhofe] wants to pass legislation (wrongly in my view) reversing” the FCC’s Ligado approval, “so be it. But holding up” Senate confirmation of O’Rielly “is wrong!

Inhofe’s “threats to block” O’Rielly’s reconfirmation “will do nothing to keep America safe,” said Taxpayers Protection Alliance President David Williams. Inhofe “needs to stop playing games with this process and allow the FCC commissioners to continue to bolster digital innovation.” Public Knowledge Senior Vice President Harold Feld called the delay “outrageous” and not reflecting how the FCC “works.” O’Rielly “has no ability to overturn” the Ligado order on his own, Feld tweeted. Targeted Victory Vice President Nathan Leamer, an ex-aide to FCC Chairman Ajit Pai, hoped “reason is restored” and O’Rielly “receives a vote in the Senate for reconfirmation.”

Expect to see the FCC playing a diminishing role in video regulation, with the boom of over-the-top delivery, and that's good, O'Rielly said. Such direct-to-consumer video offerings "rightfully [bypass] stodgy, outdated FCC regulations," he said. OTT is giving "a rare look into an almost completely unregulated free market," and the evidence shows less regulation leads to a bigger overall market for content production and distribution and more access and lower prices for consumers, he said.

DOJ has failed to take a properly expansive view of relevant advertising market participants, ignoring how some tech companies are grabbing a bigger share of local ads and not considering nonbroadcast ad sales when stations in a market want to combine, O'Rielly said.

O'Rielly hoped all open media modernization items will be closed by year's end, especially ending the cable attributable interest record-keeping requirement and addressing timing issues of program carriage complaints. Optimally, he said the FCC should "blow up" the cable franchise regulatory regime: More realistic would be such changes as ending local review of transactions and rights-of-way discrimination and ending institutional network and public, education and government programming requirements. Shredding the broadcast regulatory regime is deserved but not in the cards, though the agency could at least update its failing station waiver analysis, he said.

Station minority ownership data is "beyond embarrassing" and reflects a failure of FCC ownership rules, O'Rielly said. Axing the rules could foster minority investment and ownership, with bigger clusters in a market perhaps helping stabilize or enhance minority-owned stations in that market, he said.

O'Rielly said his payola probe (see 2001220013) never received any evidence contradicting the recording industry, so until there's proof otherwise, "I have to take them at their word." He said the top 100 MHz of the 3.1-3.55 GHz band -- long a focus of his (see 2001080035) -- could be opened up to 5G "soon."