Do you have "major questions" about West Virginia v. EPA?
We're here to answer them. Plus, register for our 2022 Policy Summit, and read our recent work on AICOA, broadband deployment, spectrum management, FTC rulemaking, and state social media regulations.
Registration for TechFreedom’s 2022 Policy Summit on July 20, 2022 at the American Geophysical Union in Washington, D.C. is now officially open to the public! All of us can’t wait to welcome you—as well as any friends and colleagues you might invite by linking to our press release or Twitter update.
Click here to register to attend in person or sign up for the live stream. We’ve also updated our list of distinguished panelists and moderators, which you can check out here.
Administrative Law. Earlier today, the U.S. Supreme Court ruled, in West Virginia v. Environmental Protection Agency, that Congress has not authorized the EPA to implement a cap-and-trade program on coal power plants. Berin and Corbin hosted a Twitter Spaces event on what the decision means for administrative law and tech policy. The decision is a landmark ruling on the “major questions doctrine.” Accordingly, Berin and Corbin discussed “major questions” at length. But they also touched on nondelegation, the FTC, net neutrality, our tribal politics, our dysfunctional Congress, the limits of expertise, the increasingly harsh tone of dueling Supreme Court opinions, and more. Our Twitter thread on the discussion can be found here and Berin’s thread on the decision is here. For more on this issue, check out Corbin’s paper on nondelegation in the WLF Legal Pulse, and our Tech Policy Podcast episode discussing the case and previewing the oral argument.
Section 230. We’ve long been voicing concerns over the problematic language in the American Innovation and Choice Online Act (AICOA)—language which would pave the way for the bill to be weaponized against content moderation. On Monday, Berin and Ari were joined by Free Press Action, Copia Institute, and several distinguished academics in a coalition letter to Sens. Tammy Baldwin, Ben Ray Luján, Brian Schatz, and Ron Wyden to highlight the false assertion that Section 230 would protect against such abuses. Our letter explains that the danger AICOA poses to content moderation is not that it nullifies Section 230 or explicitly limits its applicability. Rather, the danger lies in how AICOA will inform courts’ application of existing Section 230 precedent. To assume that AICOA is drafted precisely enough to preclude attacks on content moderation ignores multiple loud warnings that future politically motivated enforcers and judges will seize on. Our letter was prominently featured in Techdirt and Politico’s Morning Tech (paywall) and our Twitter thread on the matter can be found here.
Broadband. On Monday, Jim filed comments concerning pole attachments in response to the FCC’s proposals. He explains why the Commission must address the issue of pole replacements now, as an unprecedented amount of federal funding for broadband is about to be deployed even as deployment costs are skyrocketing. We urge the Commission to adopt a request that disputes arising over pole replacements in unserved areas be moved to the Accelerated Docket—which requires a decision within 60 days. Check out the press release here, and share on Twitter here.
Spectrum. On Monday, Jim filed comments in response to the FCC’s inquiry on the role of receiver performance in spectrum management. While the FCC can work to make commercial spectrum users more efficient, if the government doesn’t deal with highly inefficient legacy government systems, this proceeding cannot achieve its intended purpose. We also address the FCC’s limited statutory authority. Check out the press release here, and share on Twitter here. Our analysis on this issue was also highlighted in Broadband Breakfast.
Social Media Regulation. On the latest Tech Policy Podcast, we return to the topic of Florida’s and Texas’s draconian social media speech regulations. Each law violates the First Amendment, and, not surprisingly, each was blocked by a federal trial court. On appeal, however, things got weird. Although the Eleventh Circuit affirmed most of the ruling against Florida’s law (SB 7072), the Fifth Circuit let Texas’s (HB 20) go into immediate effect. In an emergency order, the Supreme Court re-blocked the Texas law—for now. A further ruling by the justices, probably next year, is all but inevitable. Corbin and Ari break down the situation. Our work on these cases has, of course, been extensive. See, for example, our amicus brief in support of the Supreme Court’s emergency order, and the amicus briefs, focusing on common carriage, that we submitted at the Fifth and Eleventh Circuits. Some of our more recent pieces include Corbin’s essay “Trumpism on the Bench?,” published at The Bulwark, and Berin’s article “Mass Shooting Videos Are Protected Under These Awful Laws,” published at The Daily Beast.
FTC. Berin and Bilal participated in a conference, organized by Concurrences and CCIA, on the rulemaking authority of the Federal Trade Commission (FTC). Bilal’s panel kicked off the event; it discussed to what extent the current case law incorporates “competition rules,” and where the DOJ fits into the picture. He also walked through the key provisions of AICOA and described its overall approach to antitrust reform. Berin’s panel closed the event, and he explained why the Congress of 1914 couldn’t possibly have intended for the FTC to make rules governing all unfair methods of competition—and what it would mean, in practical terms, for the FTC to be able to function as, essentially, a second national legislature. The conference marked the release of the book Rulemaking Authority of the Federal Trade Commission, for which Berin and Corbin contributed a chapter titled “The Constitutional Revolution That Wasn’t: Why the FTC Isn’t a Second National Legislature” (free preview of the book here). You can find the photos, videos, and transcripts of the event on their website (paywall).
Follow us on Twitter! Corbin @CorbinKBarthold; Bilal @BilalKSayyed; Andy @AndyJungTech; Santana @SantanaBoulton; Jason @JasonKuznicki; me (Rachel) @MillionthRachel; Berin @BerinSzoka; Ari @AriCohn.