Policy Priorities

The FCC needs to change course and bring new urgency to achieving four main goals:

1. Reining in Big Tech
2. Promoting national security
3. Unleashing economic prosperity
4. Ensuring FCC accountability and good governance

Reining in Big Tech

The FCC has an important role to play in addressing the threats to individual liberty posed by corporations that are abusing dominant positions in the market.

Nowhere is that clearer than when it comes to Big Tech and its attempts to drive diverse political viewpoints from the digital town square. Today, a handful of corporations can shape everything from the information we consume to the places we shop.

These corporate behemoths are not merely exercising market power; they are abusing dominant positions. They are not simply prevailing in the free market.

They are taking advantage of a landscape that has been skewed—in many cases by the government—to favor their business models over those of their competitors.

It is hard to imagine another industry in which a greater gap exists between power and accountability. That is why a new Adminis- tration should support FCC action on several fronts. Specifically, the FCC should:

Eliminate immunities that courts added to Section 230.

The FCC should issue an order that interprets Section 230 in a way that eliminates the expansive, non-textual immunities that courts have read into the statute.

As one of the FCC’s previous General Counsels noted, the FCC has authority to take this action because Section 230 is codified in the Communications Act.16

The FCC’s Section 230 reforms should track the positions outlined in a July 2020 Petition for Rulemaking filed at the FCC near the end of the Trump Administration.17

Any new presidential Administration should consider filing a similar or new petition.

As Justice Clarence Thomas has made clear, courts have construed Section 230 broadly to confer on some of the world’s largest companies a sweeping immunity that is found nowhere in the text of the statute.18

They have done so in a way that nullifies the limits Congress placed on the types of actions that Internet companies can take while continuing to benefit from Section 230.

One way to start correcting this error is for the FCC to remind courts how the various portions of Section 230 operate.

At the outset, the FCC can clarify that Section 230(c)(1) does not apply broadly to every decision that a platform makes. Rather, its protections apply only when a platform does not remove information provided by someone else.

In contrast, the FCC should clarify that the more limited Section 230(c)(2) protections apply to any covered platform’s decision to restrict access to material provided by someone else.

Combined, these actions will appropriately limit the number of cases in which a platform can censor with the benefit of Section 230’s protections. Such clarifications might also include drawing out the traditional legal distinction between distributor and publisher liability; Section 230 did not do away with the former, nor does it collapse into the latter.

Impose transparency rules on Big Tech

Today, Big Tech offers a black box.

After Google manipulates search results, a small business can see its web traffic drop precipitously overnight for no apparent reason, potentially flipping its outlook from black to red. On Facebook, social media posts are left up or taken down, accounts suspended or permanently banned, without any apparent consistency. Out of the blue, YouTube can demonetize individuals who have risked their capital and invested their labor to build online businesses.

At present, the FCC requires broadband providers to comply with a transparency rule that can provide a good baseline for Big Tech. Under the FCC’s rule, broadband providers must provide detailed disclosures about practices that would shape Internet traffic—from blocking to prioritizing or discriminating against content.

The FCC could take a similar approach to Big Tech, and it should look to Section 230 and the Consolidated Reporting Act as potential sources of authority.19 In acting, the FCC could require these platforms to provide greater specificity regarding their terms of service, and it could hold them accountable by prohibiting actions that are inconsistent with those plain and particular terms.

Within this framework, Big Tech should be required to offer a transparent appeals process that allows for the challenging of pretextual takedowns or other actions that violate clear rules of the road.

Support legislation that scraps Section 230’s current approach.

The FCC should work with Congress on more fundamental Section 230 reforms that go beyond interpreting its current terms. Congress should do so by ensuring that Internet companies no longer have carte blanche to censor protected speech while maintaining their Section 230 protections.

As part of those reforms, the FCC should work with Congress to ensure that antidiscrimination provisions are applied to Big Tech—including “back-end” companies that provide hosting services and DDoS protection.

Reforms that prohibit discrimination against core political viewpoints are one way to do this and would track the approach taken in a social media law passed in Texas, which was upheld on appeal in late 2022 by the U.S. Court of Appeals for the Fifth Circuit.20

In all of this, Congress can make certain points clear. It could focus legislation on dominant, general-use platforms rather than specialized ones.

This could include excluding comment sections in online publications, specialized message boards, or communities within larger platforms that self-moderate. Similarly, Congress could legislate in a way that does not require any platform to host illegal content; child pornography; terrorist speech; and indecent, profane, or similar categories of speech that Congress has previously carved out.

Support efforts to empower consumers

The FCC and Congress should work together to formulate rules that empower consumers. Section 230 itself codifies “user control” as an express policy goal and encourages Internet platforms to provide tools that will “empower” users to engage in their own content moderation.

Congress should be mindful of how we can return to Internet users the power to control their online experiences. One idea is to empower consumers to choose their own content filters and fact checkers, if any.

The FCC should also work with Congress to ensure stronger protections against young children accessing social media sites despite age restrictions that generally prohibit their use of these sites.

The views expressed here are not shared uniformly by all conservatives. Some do not think that the FCC or Congress should act in a way that regulates the content-moderation decisions of private platforms.

One of the main arguments that this group offers is that doing so would intrude—unlawfully in their view—on the First Amendment rights of corporations to exclude content from their private platforms.

Require that Big Tech begin to contribute a fair share.

Big Tech has avoided accountability in several additional ways as well. One of them concerns the FCC’s roughly $9 billion Universal Service Fund.

This initiative provides the support necessary to subsidize the agency’s affordable Internet and rural connectivity programs. The FCC obtains this funding through a line-item charge that carriers add to consumers’ monthly bills for traditional telecommunications service.

While Big Tech derives tremendous value from the federal government’s universal service investments—using those federally supported networks to deliver their products and realize significant profits—these large corporations have avoided paying a fair share into the program.

On top of that, the FCC’s current funding mechanism has been on an unsustainable path.

By requiring traditional telephone customers to contribute to a fund that is being used increasingly to support broadband networks, the FCC’s current approach is the regulatory equivalent of taxing horseshoes to pay for highways. To put the FCC’s universal service program on a stable footing, Congress should require Big Tech companies to start contributing an appropriate amount.

Conservatives are not unanimous in agreeing that the FCC should expand the USF contribution base. Instead, some argue that Congress should revisit the program’s entire funding structure and determine whether to continue subsidizing the provision of service. Future funding decisions, the argument goes, should be made by Congress through the normal appropriation process through which the USF program can compete for funding with other national initiatives.

These decisions should be made with an eye to right-sizing the federal government’s existing broadband initiatives in light of both technological advances and the recent influx of billions of dollars in new appropriations that can be used to support efforts to end the digital divide.

Protecting America’s National Security.

During the Trump Administration, the FCC ushered in a new and appropriately strong approach to the national security threats posed by the Chinese Communist Party (CCP). During that time, the FCC eliminated federal subsidies for telecommunications equipment from Huawei and ZTE, thereby greatly reducing the chances of that equipment finding a way into our nation’s communications networks.

The FCC also stood up a program to rip and replace insecure network gear to ensure that it did not remain a threat lurking inside our systems. The FCC revoked or denied the licenses of carriers like China Mobile, China Telecom, and China Unicom, which presented unacceptable national security risks. There are, however, additional strong actions that the FCC can and should take to address the CCP’s malign campaign.

Expand the FCC’s Covered List.

The FCC maintains a list of communications equipment and services that pose an unacceptable risk to the national security of the United States. It is known as the Covered List.23 Huawei is one of the companies on the Covered List, and its inclusion means that the FCC will no longer review or approve new applications from Huawei.

Without FCC approval, new Huawei gear cannot be lawfully sold or used in the U.S. However, the FCC must do a better job of ensuring that its Covered List stays up to date and accounts for changes in corporate names and forms.

Therefore, a new Administration should create a more regular and timely process for reviewing entities with ties to the CCP’s surveillance state. End the unregulated end run. As noted above, China Telecom and similar entities have been banned from operating in the U.S. in a manner that would require an FCC license or authorization because of the national security risks that those entities pose. However, many of these same entities are still operating in the U.S. and offering services very similar to the ones that they are prohibited from providing.

China Telecom, for instance, continues to provide services to data centers by offering the services on a private or “unregulated” basis. A new Administration should work with the FCC to close this loophole. One way to do so would be for the FCC to prohibit any regulated carrier from interconnecting with an insecure provider.