Only Congress Can Decide Major Questions
Plus regulating AI, negative option rulemaking, an FTC open meeting, and more …
Net Neutrality: Yesterday, Berin, Jim, and Corbin filed reply comments explaining why classifying Broadband Internet Access Service (BIAS) as a Title II common carrier service constitutes a “major question”—which can only be decided by Congress. As we explained in our comments, SCOTUS is likely to act on the subject, both soon and decisively.
AI and Free Speech: On the latest Tech Policy Podcast, Corbin and Ari discuss AI and elections. Is AI a threat to democracy? Probably not. Does the First Amendment pose an obstacle to regulating AI-generated campaign speech? You bet. For more, checkout Ari’s 2023 Senate testimony and Corbin’s companion piece on Substack.
FTC: Berin testified at the FTC’s hearing (at 13:16) on the proposed amendments to the Negative Option Rule. He examined the Commission’s abuse of its Magnuson-Moss rulemaking power to impose civil penalties—a power that has not been granted by Congress. FTCWatch (paywall) and Law.com (paywall) also quoted his testimony.
At today’s FTC Open Commission meeting, Berin (at 48:05) emphasized the important role hearings play in upholding due process in Magnuson-Moss rulemakings. He commended Administrative Law Judge Foelak ordering a further hearing in the FTC’s ongoing Negative Option rulemaking and encouraged the Commission to allow a full discussion of the evidence before issuing a revised rule.
Content Moderation: Tomorrow, Ari will participate in the 2024 Missouri Federalist Society Chapters Conference. His panel will debate Missouri v. Biden, which concerns the federal government allegedly coercing social media companies over content moderation. Ari also discussed the case on a previous episode of the podcast.
Only Congress can legislate net neutrality concerns, however hypothetical they may be.