PRESS RELEASE: Eleventh Circuit's Vacation of Gray Television's Forfeiture Should Raise Caution Flags at FCC

Free State Foundation President Randolph May issued the following statement regarding the Court of Appeals for the Eleventh Circuit's opinion today vacating a forfeiture penalty of $518,283 assessed against Gray Television, Inc: 

The Free State Foundation filed an amicus brief in Gray Television's appeal of its forfeiture because of certain concerns relating the FCC's rationale for imposing the forfeiture, including whether Gray's due process rights had been violated for lack of fair notice regarding whether Gray's conduct actually violated the Commission's rules as they had been interpreted. While the court did not address the specific points FCC raised, it did hold that the entire
forfeiture should be vacated because the Commission failed to provide fair notice and acted arbitrarily and capriciously in failing to explain the basis for its Notice of Apparent Liability (NAL).

 

The FCC's enforcement regime has been plagued by problematic examples of overreach and abuse in the past, which is a major reason why FSF participated as an amicus in the Gray appeal. Before the agency is allowed to impose massive penalties, it's required as a matter of due process that parties regulated by the agency have fair notice of what's expected of them to comply with Commission rules. Conservatives and rule-of-law advocates have always been rightly concerned by "regulation by enforcement" – that is using an enforcement regime to establish new heretofore unknowable regulatory requirements.

 

The FCC's recent imposition of a massive forfeiture on Telnyx, and others, may well fall into this category, raising similar due process and fair notice concerns regarding whether the conduct alleged to be violative of the agency’s rules was known or knowable.

House Commerce Privacy Working Group Seeks Input

In a February 2025 post to the FSF Blog, I reported on a press release from House Commerce Committee Chairman Brett Guthrie (R-KY) and Vice Chairman John Joyce, M.D. (R-PA) announcing the creation of a working group focused on federal comprehensive data privacy legislation. That working group is now asking interested parties to provide responses to a Request for Information (RFI).

Released on February 21, 2025, the RFI begins by acknowledging two points I have highlighted repeatedly in writings for the Free State Foundation, most recently in a December 2024 Perspectives from FSF Scholars.

One, that "the challenge of providing clear digital protections for Americans is compounded by the fast pace of technological advancement and the complex web of state and federal data privacy and security laws, which in some cases create conflicting legal requirements."

And two, that "Members of Congress have spent many years working toward federal comprehensive data privacy and security standards to bring consumer protections into the digital age while ensuring that the U.S. continues to lead in a globally competitive environment."

The information sought by the RFI is organized into the following six specific categories:

• Roles and Responsibilities: What types of entities collect, process, and sell personal information? What obligations should apply to each?

• Personal Information, Transparency, and Consumer Rights: What specific consumer protections should a privacy law include? What heightened safeguards should apply to sensitive personal information? How should covered entities provide disclosures to consumers?

• Existing Privacy Frameworks and Protections: What can be learned from the existing "patchwork" of state privacy laws? To what extent should a federal privacy law preempt state privacy laws?

• Data Security: How can federal lawmakers ensure the security of consumer data?

• Artificial Intelligence (AI): How might a federal privacy law account for existing state laws addressing AI, including those relating to automated decision-making?

• Accountability and Enforcement: What are the pros and cons of exclusive enforcement by the FTC and state Attorneys General? Should a federal privacy law include a safe harbor?

A seventh, catch-all, category encourages interested parties to submit "any additional information that may be relevant to the working group as it develops a comprehensive data privacy and security law."

Responses, due by April 7, 2025, should be emailed to PrivacyWorkingGroup@mail.house.gov.

Former FCC Chairman Ajit Pai a Keynoter at FSF's 17th Annual Conference March 25!

Registration Now Open!

 

 Keynote Speaker Announced!

 

 

Former Chairman, Federal Communications Commission, 

and Partner, Searchlight Capital

 

Previously Announced Keynoters

 

Senator Ted Cruz

 

Jonathan Turley

 

Nathan Simington

 

WHAT: FSF's Seventeenth Annual Policy Conference

 

WHERE: National Press Club, Washington, DC

 

WHEN: Tuesday, March 25, 2025 -- 8:30 a.m. - 2:30 p.m.

 

The Free State Foundation will hold its Seventeenth Annual Policy Conference on March 25, 2025, at the National Press Club in Washington, DC. This annual conference is acknowledged to be one of the nation's premier law and policy events.

 

As always, a truly outstanding lineup of senior officials and prominent experts from the FCC and Congress, and from other government agencies, industry, academia, and think tanks will discuss and debate the most important communications and Internet policy issues of the day, as well as other topical law and policy issues involving free market competition, free speech, and the rule of law.

 

With a new Trump administration, a new Congress, and new leadership at the FCC, FTC, and other agencies, this promises to be one of the most impactful of FSF's annual conferences.

 

REGISTRATION IS COMPLIMENTARY, INCLUDING CONTINENTAL BREAKFAST AND LUNCH.

BUT YOU MUST REGISTER TO ATTEND.

 

FOR ADDITIONAL INFORMATION, CLICK HERE.

 

REGISTER HERE!

 

#FSFConf17

TMT with Mike O'Rielly - Ep 18: The Next Broadcast TV Standard

Episode 18 of "TMT with Mike O'Rielly," a videocast featuring former FCC Commissioner and Adjunct Senior Fellow at the Free State Foundation Michael O'Rielly, was released on February 21. In this episode, titled "The Creation & Status of the Next Broadcast Television Standard," Mr. O'Rielly has a conversation with guest Madeleine Noland, President, ATSC – The Broadcast Standards Association. 

Their conversation covers the ongoing transition from ATSC 1.0 to the next-gen broadcast TV standard of ATSC 3.0. Mr. O'Rielly and Ms. Noland touch on topics such as ATSC 3.0 capabilities, including picture enhancements, ATSC 3.0-capable devices (TVs and converter boxes), current coverage status, as well as channel sharing arrangements to enable simulcasts. 

Anna Gomez, Section 230, and Professions of Alarm

FCC Commissioner Anna Gomez apparently is upset that FCC Chairman Brendan Carr plans to have the Commission issue some sort of "advisory opinion" regarding the meaning of parts of Section 230, perhaps Section 230(c)(2)(A) which limits the immunity enjoyed by Internet websites for restricting access to objectionable content to actions taken in "good faith." According to a statement Commissioner Gomez issued, she is concerned that "involvement of the FCC in interpreting Section 230 would represent an attempt to "increase government control of online speech."

She goes on to say: "It is meant to bully private social media companies to comply with direct demands from the administration," she said. "An advisory opinion like this signals what the FCC already knows. It has little to no authority to weigh in on this complex issue. That's why this is a vague and weak effort. Only Congress can change and amend the law that gave us the internet as we know it today."

 

A few quick reactions. First, I don't recall Ms. Gomez voicing any concerns when the Biden administration was "bullying" social media companies to deplatform posters or restrict access to content, for example, with respect to the origin of COVID-19, years-long school closings, business shutdown mandates, and so forth. Meta's Mark Zuckerberg now says, "the government pressure was wrong" and he "regrets" that Facebook "was not more outspoken about it." For plenty more regarding Biden administration bullying of social media companies, including Twitter (nee X) and Facebook, see the opinions in the Supreme Court's Murthy v. Missouri decision.

Regardless of whatever reasons Ms. Gomez had in the past for not speaking out against bullying of social media companies by the government, her present concern would be more credible if, at a minimum, she would join Mr. Zuckerberg in expressing regret regarding the previous administration's content suppression actions.

 

Second, if the FCC, in fact, issues some sort of advisory opinion regarding its understanding of the meaning of the Section 230 immunity provision, its action at least would be done in an open manner and be subject to public scrutiny. Of course, this is much different than the hidden behind closed door efforts of the Biden administration that took place via private emails and telephone conversations. Again, on this point check with Mr. Zuckerberg.

 

Finally, because the FCC is not granted authority to enforce Section 230, and because after Loper Bright, the FCC no longer will receive Chevron deference for its statutory interpretations, the extent to which a court will accord any weight at all to the FCC's advisory opinion regarding Section 230's meaning likely will depend on application of the factors set forth in the Supreme Court's pre-Chevron Skidmore v. Swift & Co. decision. In Loper Bright, the Supreme Court recognized that even after Chevron's demise, in accordance with Swift, courts still should consider agency views for their “power to persuade, if lacking power to control.” Among those factors relevant to the power of an agency's statutory interpretation to persuade are “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements."

 

So, while a court most likely won't simply defer to the FCC's views regarding any Section 230 interpretations it offers in the form of an advisory opinion or the like, it might accord them some weight if it finds them persuasive. By the same token, should Commissioner Gomez offer her own views, it's possible a court might find them persuasive.

 

But, for myself, I would find Ms. Gomez professions of alarm regarding her claims of "bullying" more persuasive had she sounded the alarm bells regarding the previous administration's content suppression efforts – or if now, Zuckerberg-like, she would at least acknowledge that what went down behind closed doors then was wrong. 

High Court Again Declines to Rule on State-Level Price Controls for Broadband

On February 24, the Supreme Court issued an order denying a petition for a rehearing on its order to deny a writ of certiorari in New York State Telecommunications Association v. James. That is a wordy way of saying the Court declined to change its mind about its earlier refusal to take up the case. The Court's order leaves in place an April 2024 decision by the U.S. Court of Appeals for the Second Circuit rejecting ISPs' claims that the New York broadband price control law is subject to field preemption and conflict preemption.

The Supreme Court's prior order denying certiorari in NYSTA v. James is the subject of my blog post from December 18, 2024. Reconsideration was requested by the petitioners following the January 2, 2025, decision by the Sixth Circuit in In re: MCP No. 185. The Sixth Circuit's decision vacated the FCC's April 2024 order that reclassified broadband services as Title II "telecommunications services" and thereby left in place the agency’s prior order that classified broadband as a Title I "information service." The petitioners argued that the result in the Sixth Circuit constituted intervening circumstances substantial enough to warrant the granting of a rehearing and certiorari. But the Court declined to see it that way. 

 

New York's Affordable Broadband Act imposes price ceilings—a type of rate regulation—on broadband Internet service providers (ISPs) offering service in the state. Under the law, ISPs must offer low-income individuals plans of $15 per month and $20 per month. After being involved in litigation, the law finally went into effect on January 15 of this year. As a result of the Supreme Court's recent order, it appears the New York price control law will remain in effect for the foreseeable future. 

 

There are early signs that the New York law has unintended consequences for broadband competition and new deployments in that state. For more, see my February 20 FedSoc Blog post, "States Should Keep Broadband Internet Services Free From Price Controls."

Presidential Removal Power and the FCC - II

 In my blog post published on February 14, I addressed how the FCC possibly could be impacted by the outcome of cases testing the Trump administration's power to remove the heads of agency officials. Please see that post for background information regarding the significance of the Seila Law case on a president's power to remove a member of a multimember agency like the FCC.

 

Now, I want to call attention to a case that is the first one involving a president's removal power in which the Trump administration is asking the Supreme Court to intervene. It involves President Trump's effort, on February 2, to remove Hampton Dellinger, as head of the Office of Special Counsel. Here are the essential facts as recounted by Amy Howe on SCOTUSblog:

 

Dellinger was appointed by then-President Joe Biden and confirmed by the Senate for a five-year term beginning in 2024. The watchdog agency protects whistleblowers inside the government, independent from the sitting president. It is not related to DOJ special counsels like Jack Smith. Under the federal law creating the Office of Special Counsel, Dellinger could be removed by the president from his job only for “inefficiency, neglect of duty, or malfeasance in office.”

 

So far, President Trump's attempted firing of Mr. Dellinger, for which he gave no reason at all, has been temporarily blocked by United States District Court Judge Amy Berman Jackson, and a D.C. Circuit panel, in a 2-1 decision, refused to lift the temporary restraining order (TRO).

 

On Sunday, Acting Solicitor General Sarah Harris filed an emergency petition with the Supreme Court asking it to vacate the TRO so that President Trump's firing of Mr. Dellinger will be effective immediately. SG Harris declares that "[t]his case involves an unprecedented assault on the separation of powers that warrants immediate relief." She claims that the president possesses "unrestricted power to remove" agency heads, so that "preventing him from exercising these powers thus inflicts the gravest of injuries on the Executive Branch and the separation of powers."

 

It is impossible to predict what the Supreme Court will do in response to the Trump administration's emergency application. And it's important to stress that however the Court responds, such response may itself be of a temporary nature and not resolve the merits of the case or provide a basis for predicting the case's ultimate disposition.

Nevertheless, this and other cases involving a president's removal power bear close attention by FCC watchers – and, of course, FCC commissioners. So, a few observations are in order:

1.     The SG's petition to the Supreme Court in the Dellinger case relies heavily on the Court's Seila Law decision, where, in dicta, the Court intimated that the seminal Humphrey's Executor case may no longer be sufficient to protect members of a multimember commission from removal by a president for any reason, especially if the agency exercises substantial executive power. In the her February 12 letter to Senator Dick Durbin to which I linked in my last post, the Acting Solicitor General makes clear that the Department of Justice no longer believes the tenure protection provisions contained in the FTC Act and similar statutes are constitutional. So, if this view ultimately prevails in the Supreme Court, a president's authority to remove an FCC commissioner without providing any reason would be assured.

2.     Even if the Court does not go "full Seila Law" and accept the Trump administration's claim to unrestricted removal power for multimember agencies such as the FTC, the National Labor Relations Board, and the Consumer Product Safety Commission, it may rely, at least to some extent, on the tenure protection provisions contained in these agencies' enabling statutes. In material respects, they mirror the “inefficiency, neglect of duty, or malfeasance in office” language contained in the Office of Special Counsel statute now before the Supreme Court. As I pointed out in my previous post, the Communications Act contains no such explicit tenure protection limitation language.

The fact that the Communications Act lacks a tenure protection provision similar to those contained in the FTC and other agency enabling statutes – a fact underreported and little considered – possibly could be significant if there is ever a case involving a president's attempt to remove an FCC commissioner. It's possible it could be determinative.

A FINAL NOTE: Please understand that I am not advocating the removal of any FCC commissioner. In that regard, observe that generally I refer to "a" president's removal power, not "the" president's removal power. But as someone who has practiced, and been involved in, communications law and policy for nearly fifty years, I'm very interested in following all the now fast-brewing cases involving a president's removal power for what they could portend for the FCC. If you follow the FCC, you should be interested too!

House Commerce Leaders Create Privacy Working Group

On February 12, 2025, House Commerce Committee Chairman Brett Guthrie (R-KY) and Vice Chairman John Joyce, M.D. (R-PA) issued a press release announcing the formation of a comprehensive data privacy working group.

This marks the first notable federal legislative step forward on privacy since a full House Commerce Committee markup of the American Privacy Rights Act of 2024 (APRA), scheduled for June 27, 2024, was cancelled at the last minute. For more on the fate of the APRA, please see my year-end comprehensive recap of developments at both the federal and state levels, "2024 Data Privacy Legislative Review: Federal Lawmakers Fall Short As More State Laws Gain Teeth," a December 2024 Perspectives from FSF Scholars.

In the press release, Chairman Guthrie and Vice Chairman Joyce stated that:

We strongly believe that a national data privacy standard is necessary to protect Americans' rights online and maintain our country's global leadership in digital technologies, including artificial intelligence. That's why we are creating this working group, to bring members and stakeholders together to explore a framework for legislation that can get across the finish line…. The need for comprehensive data privacy is greater than ever, and we are hopeful that we can start building a strong coalition to address this important issue.

They also encouraged interested parties to engage with the working group by sending an email to PrivacyWorkingGroup@mail.house.gov.

Report Touts Positive Impact of Fiber Broadband on Local Economy

On February 7, the Fiber Broadband Association published a case study report, "Fiber Anchors Sustained Economic Development, Charlottesville, Virginia." The report examined the impact of fiber broadband network deployment on the greater Charlottesville area, focusing on three economic indicators: private sector job growth, housing value, and digital microbusiness density. According to the report: "Availability of high-speed, low-latency broadband accounted for roughly 35% of Charlottesville's private sector job growth during 2015-2019." The report also credits fiber deployment with increased housing values in the area. And it emphasized the benefits of fiber for "microbusinesses" that have 10 or fewer employees, a domain, and an active website. The findings of the report are based, at least in part, on a comparison of the economic activity of Charlottesville compared with similar-sized cities in Virginia.  

The economic benefits, including job creation, of next-generation broadband networks is also the subject of previous studies. For instance, other analysts have observed the positive economic impact from deployment of 4G and 5G wireless networks and 5G networks. 

 

Local communities hoping to timely realize the full potential of fiber networks for creating jobs and economic opportunities for their residents – similar to how Charlottesville, Virginia, appears to have benefitted – should have in place wireline infrastructure siting policies, including for access to public rights-of-way, that enable timely permit application processing, with permit fees that limited to covering review and processing costs.