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Tele-miscommunications

Fully Charged
Bloomberg

Hey, it's Josh. In a characteristic outburst this week, President Donald Trump threatened to defund the military if Congress didn't revoke part of a 24-year old telecommunications law. The provision, usually referred to as Section 230, protects companies like Facebook Inc. from legal liability for user-generated content. It's widely viewed as foundational to the modern internet.

Congress pressed ahead with the Defense bill and didn't repeal Section 230, even though many Republicans say they want to. And it's safe to assume they'll continue to make noise about undermining the provision. But now that Democrats are taking over the executive branch, expect Congressional Republicans to shift gears on tech policy. Instead of trying to rewrite key internet legislation, the GOP will likely focus instead on stopping Democrats from doing anything at all. 

A prime example of this dynamic is this week's maneuvering around the Federal Communications Commission. A Senate committee voted Wednesday to advance Trump's nomination of Nathan Simington to the commission, a move that could deadlock the FCC between Democratic and Republican commissioners. 

At first glance, Simington's imminent confirmation seems like yet another Trump gambit to undermine Section 230. Earlier this year the president asked the FCC to review the law's protections, a request that Simington helped write. After Commissioner Michael O'Rielly, an otherwise reliable Trump ally, expressed doubt about using the FCC to weaken the law, Trump withdrew O'Rielly's renomination and put forward Simington instead.

Lawmakers have expressed concern about Simington's involvement in the administration's efforts around Section 230. Last month, Democratic Senator Richard Blumenthal said he'd block the nomination unless Simington recused himself from any votes on the issue. Simington wouldn't commit to doing so, but it doesn't much matter because there isn't going to be a vote. In a Joe Biden administration, the chair of the FCC will be a Democrat, and they'll likely just let the issue drop.

Of course, from a Republican perspective, Simington's value as an FCC commissioner won't be actually to do anything himself, but to keep other commissioners from doing things. Once FCC Chair Ajit Pai steps down in January, there will be four members left. And if the Trump administration doesn't appoint someone else in the coming weeks, the Biden administration will start with a 2-1 majority on the five-member commission. 

That would leave the FCC free to pursue reinstating net neutrality, a Democratic priority that Republicans strongly oppose. The commission could also boost funding for low-income broadband programs as well as other initiatives that Republicans decry as wasteful. "Republicans should not underestimate the harm that a Democrat-led FCC could impose on the American economy during Biden's first 100 days," wrote Grover Norquist, the president of conservative advocacy group Americans for Tax Reform, in a letter to congress. 

By deadlocking the commission at 2-2, the Republicans can effectively paralyze it until the Democrats get their own nominee seated. There's no assurance that would happen quickly—or ever—if the GOP holds the Senate. I spoke to former FCC staffers from both parties this week, and they all brought up spurned Supreme Court nominee Merrick Garland, who was nominated by President Barack Obama. 

Democrats won't get to implement a sweeping agenda. But they aren't exactly out of options. They could respond to Republicans' hardball with hardball of their own, for example, by refusing to carry out normal business if the Senate holds up their nominee to replace Pai.

The commission could also enact some policies through maneuvers that wouldn't require votes, says Gigi Sohn, fellow at Georgetown Law's Institute for Technology Law & Policy, who worked at the FCC during the Obama administration. "A crafty acting chair and crafty general counsel can do a lot," she said. 

Even a deadlocked commission should be able to carry out its more uncontroversial duties, said Katie McAuliffe who works with Norquist at the conservative advocacy group as director of federal policy, adding that the commissioners should strive for consensus. It's a nice thought. The early indications, though, don't point to anything but maximal partisanship. Joshua Brustein

If you read one thing

Timnit Gebru, a co-leader of the Ethical Artificial Intelligence team at Google, said she was fired for sending an email that management deemed "inconsistent with the expectations of a Google manager." Gebru was a rare voice of public criticism from inside the company, and her departure came after a dispute over Google's request that she retract a research paper.

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