The Supreme Court could be more likely to review laws regulating social media after the 11th U.S. Court of Appeals ruled Monday that Florida may not restrict content moderation by social media platforms. The 11th Circuit decided in a 3-0 opinion to keep a temporary ban on moderation limits but lift injunction on most disclosure rules in Florida’s law that makes it illegal for social media sites to deplatform political candidates and requires them to be transparent about policing.
Adam Bender
Adam Bender, Senior Editor, is the state and local telecommunications reporter for Communications Daily, where he also has covered Congress and the Federal Communications Commission. He has won awards for his Warren Communications News reporting from the Society of Professional Journalists, Specialized Information Publishers Association and the Society for Advancing Business Editing and Writing. Bender studied print journalism at American University and is the author of dystopian science-fiction novels. You can follow Bender at WatchAdam.blog and @WatchAdam on Twitter.
An administrative law judge dismissed AT&T’s challenge of Florida Public Service Commission pole attachment rules Wednesday. The failure of AT&T’s appeal means the PSC could approve a certification to reverse preempt the FCC’s pole attachment authority as soon as its July 7 meeting (see 2205160059). The Florida commission "properly engaged in rulemaking, considered the interests of regulated entities and their consumers, made changes to the rule based thereon, and ultimately approved the Proposed Rule based on that robust process," said Florida Division of Administrative Hearings ALJ Andrew Manko. The carrier had said the PSC should explicitly use FCC rules as the default. But Manko said the PSC "reasonably chose not to include methodologies so that it could develop precedent on those substantive standards through the unique adjudicatory process mandated by the Legislature." Florida's pole attachment rules aren't "illogical, unreasonable, despotic, or arbitrary and capricious," said Manko: Nothing in the federal Communications Act Section 224(c) "requires a state to adopt a specific methodology in its rules, much less to certify that it has done so," and not adopting a specific method doesn't contravene Florida law's requiring the state rules, "even if that statute were interpreted to require compliance with the federal certification standards,” he said. The Florida commission filed the rule Thursday with the state department, and it will take effect June 8, said a PSC spokesperson: Florida still must certify its pole attachment authority to the FCC. AT&T didn’t comment.
The California Public Utilities Commission voted 5-0 to modify various account rules under the California Advanced Services Fund (CASF). Also at Thursday’s livestreamed meeting, the CPUC decided to update the California LifeLine program renewals process. Commissioners supported updating CASF program rules for the Broadband Public Housing Account, Broadband Adoption Account and Rural and Urban Regional Broadband Consortia Account in response to a $6 billion broadband package and three other 2021 state laws (see 2204140056). “To be fully and meaningfully connected to internet services, communities need not just access and affordable infrastructure, but also devices, training and support,” said CPUC President Alice Reynolds: Adopted changes will help build gap networks in low-income and affordable housing communities, train digital navigators and provide digital literacy education. Commissioner John Reynolds joined other commissioners supporting the item. “By adopting key changes to the CASF such as expanding program eligible for farmworker housing, further expansion of eligibility for low-income communities and setting a [25 Mbps download and 3 Mbps upload] speed requirement for the Public Housing Account, the CPUC will continue its mission of bridging the digital divide and advancing areas of California that have been historically unserved or underserved,” he said. The CPUC cleared the LifeLine proposed decision in a unanimous vote on its consent agenda. The adopted item in docket R.20-02-008 would comply with a 2021 state law by eliminating "use of a PIN for all renewals completed through database matching and for all participants with personal identification information on file as of the date the renewals suspension concludes," and implementing "recertification without a Commission-issued PIN for participants without a database match or personal identification information on file by" Dec. 31, 2023 (see 2203220026).
The Supreme Court might be showing interest in tech groups’ emergency appeal of a 5th U.S. Circuit Court of Appeals order allowing a Texas social media law to be enforced, said court watchers this week. Texas responded Wednesday to NetChoice and Computer and Communications Industry Association, as requested by Justice Samuel Alito (see 2205160030).
A Louisiana House panel advanced a privacy bill Tuesday to the full chamber despite continuing concerns by members and stakeholders about the comprehensive measure. The House and Governmental Affairs Committee voted 9-2 to clear HB-987 in its second hearing on the bill (see 2205110049). Noting he continues to receive comments, sponsor Rep. Daryl Deshotel (R) said he knows the bill has problems and will work on amendments before it gets to a House vote: "I don't want to pass a bill that's going to affect Louisiana's businesses in a negative way." Some changes made in the Commerce Committee -- supported by Microsoft -- went too far, said Deshotel, saying his goal is to align Louisiana with other states that passed privacy laws. The bill could have major impact for businesses, said Rep. Barry Ivey (R): “It is important that we get it right." Vice Chair Royce Duplessis (D) said he still has “questions about just what the bill does” and sees “a lot of work to be done.” TechNet and Louisiana Press Association officials testified against the bill. While praising Deshotel for working with LPA on its concerns, General Counsel Scott Sternberg said, “I still don't know what this bill does.”
State telecom industry groups seek to stop LTD Broadband from receiving promised Rural Digital Opportunity Fund (RDOF) funding in Minnesota and South Dakota. The efforts to deny eligible telecom carrier (ETC) status to the company are the latest in a growing number of state hurdles LTD faces as it tries to secure funding it preliminarily won from FCC auction. Some said the situation shows state ETC designation review’s value, but former Commissioner Mike O’Rielly said the process isn’t working.
Supreme Court Justice Samuel Alito asked Texas to respond by Wednesday at 5 p.m. EDT to tech associations’ Friday emergency appeal of a 5th U.S. Circuit Court of Appeals order allowing the state’s social media law to be enforced (see 2205120053). Alito sought the state’s response Saturday on application 21A720. NetChoice, one of the plaintiffs, expects a court ruling could come as soon as Thursday or next week, Policy Counsel Chris Marchese told us. Alito may rule unilaterally or circulate the matter with the full court. The 5th Circuit court decided 2-1 Wednesday to grant the state’s request to stay a lower court’s preliminary injunction, meaning Texas could start enforcing its law prohibiting larger platforms from blocking, deplatforming or otherwise discriminating against users based on viewpoint or location within Texas. The plaintiffs argued Friday to the Supreme Court there's a reasonable probability that most justices would grant certiorari and a more-than-fair prospect that most justices would overrule the lower court’s decision. Denying stay would mean irreparable harm for social platforms covered by the Texas law, with no harm to Texas from keeping the status quo, they said. “The Fifth Circuit has yet to offer any explanation why the District Court’s thorough opinion was wrong,” plaintiffs wrote. The appeals “court short-circuited the normal review process, authorizing Texas to inflict a massive change to leading global websites and undoubtedly also interfering with the Eleventh Circuit’s consideration of Applicants’ challenge to the similar Florida law.” The Texas attorney general’s office didn’t comment Monday.
Pole policies and participants must respond to climate change, said current and former state utilities regulators during an FCBA virtual event Monday. Pole replacement backlogs and insufficient information about attachments are challenges, they said. Florida could finalize its process this summer to become the 23rd state, in addition to Washington, D.C., to reverse preempt FCC pole attachments authority, said Berger Singerman cable attorney Floyd Self on another panel.
Arguing that a California 7 cents-per-minute cap on incarcerated person calling service (IPCS) rates wasn't based on data, Securus sued the California Public Utilities Commission at the California 2nd District Court of Appeals. Securus filed Thursday after the CPUC denied its petition last month to rehear the agency's August interim IPCS decision (see 2204130007 and 2204120047). "Securus supports data-driven, reasoned regulation such as the IPCS rate caps adopted by the FCC in its May 24, 2021 Interim Rate Order following an exhaustive analysis of cost data submitted by IPCS providers,” said the suit. Securus supported a CPUC staff recommendation to use the FCC rate regulation as an interim measure in California, but commissioners rejected that “and adopted rate regulation divorced from reasoned decision-making and lacking any substantial evidentiary foundation. As a result, companies providing IPCS to the state’s over 200 jails are saddled with a rate cap that is well below their cost of providing service to many of those facilities.” It was “an abuse of discretion and authority by the” CPUC, said Securus: The decision was “substantively and procedurally defective and raises issues of both administrative and constitutional dimensions.” The CPUC decision was interim, but “it is likely to remain in effect for years, as these proceedings are already over a year behind schedule, necessitating this Court’s intervention now.” Securus has tried “to find common purpose with federal and state regulators … in formulating meaningful rate caps and other reforms,” said Securus parent Aventiv Technologies CEO Dave Abel: But California commissioners’ rejected staff’s recommendation and instead chose “arbitrary rate caps without considering the necessary data for a thoughtful decision that complied with California law.” Securus didn’t “come to this decision lightly,” Abel said. “We’ve undertaken a national effort to reduce costs and create better outcomes for consumers. Regulation based on the thoughtful evaluation of relevant data is vital.” The CPUC didn’t comment.
Tech groups could soon go to the Supreme Court, after the 5th Circuit U.S. Court of Appeals lifted a lower court’s temporary ban on Texas’ social media law. Judges issued the 2-1 order, without written explanation, two days after oral argument (see 2205100002). The order signals that the 5th Circuit is likely to reverse the district court soon, said supporters and opponents of the state law, in interviews. They predicted litigation will quickly heat up.