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Robocall Regulation and Judicial Review [July 22, 2019]
From the Document: "Robocalls--calls placed using an automatic telephone dialing system or an artificial or prerecorded voice--continue to be one of the most common consumer complaints received by the Federal Communications Commission (FCC). Generally, it is illegal under the Telephone Consumer Protection Act (TCPA) to place robocalls to consumers without their consent. However, enforcement efforts have been complicated by technology that allows callers to falsify, or 'spoof,' their caller ID information and adopt an area code or telephone number similar to that of the recipient. One method of combating robocalls with spoofed numbers involves deploying technology to verify the authenticity of caller ID information and to block calls made from numbers with unverified caller ID information."
Library of Congress. Congressional Research Service
Holmes, Eric N.
2019-07-22
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What is an Autodialer? A Lingering Robocall Enforcement Question [February 13, 2020]
From the Document: "On December 30, 2019, President Trump signed the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act) into law. The TRACED Act is Congress's latest effort to control the proliferation of unwanted automated telemarketing calls, commonly known as 'robocalls.' [...] The TRACED Act enables the Federal Communications Commission (FCC) to enforce more aggressively the prohibitions on unwanted robocalls included in the Telephone Consumer Protection Act (TCPA). Among other things, the TRACED Act authorizes the FCC to seek forfeiture penalties for first-time violators and extends the statute of limitations for intentional violations to four years. However, one central enforcement issue remains unresolved: what exactly is a 'robocall'? The TCPA makes it illegal to call any wireless phone number using an 'automatic telephone dialing system' (an autodialer) or an artificial or prerecorded voice. While the text of the TCPA defines 'automatic telephone dialing system,' uncertainty has emerged as to how this definition--written in 1991--applies to a technological landscape that is far different today from what existed at the time the TCPA became law. This Sidebar discusses how the FCC and federal courts of appeals have interpreted the TCPA's autodialer definition and identifies the current legal issues regarding this definition that the FCC, federal courts, or Congress may be able to resolve."
Library of Congress. Congressional Research Service
Holmes, Eric N.
2020-02-13
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Cable Franchising Authority of State and Local Governments and the Communications Act [January 3, 2020]
From the Document: "Companies that provide cable television service (cable operators) are subject to regulation at the federal, state, and local levels. Under the Communications Act of 1934, the Federal Communications Commission (FCC or Commission) exercises regulatory authority over various operational aspects of cable service. [...] This report first outlines the FCC's role in regulating cable operators and franchising authorities, beginning with the Commission's approach under the Communications Act through the passage of the Cable Act and its amendments. The report then turns to a discussion of recurring legal issues over the FCC's power over franchising authorities. The report concludes with a discussion of possible legal issues that may arise in current legal challenges to FCC regulations and offers considerations for Congress."
Library of Congress. Congressional Research Service
Linebaugh, Chris D.; Holmes, Eric N.
2020-01-03
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Broadband Connectivity and COVID-19: The FCC's Response [May 21, 2020]
From the Document: "As states and localities have directed their citizens to stay home in response to the COVID-19 [coronavirus disease 2019] outbreak, internet traffic in the United States has shifted dramatically. The greater number of individuals working remotely over the internet, participating in online education, and seeking online sources of entertainment threatens to place an increasing strain on American internet networks. The Federal Communications Commission (FCC or Commission) has thus far focused its response on expanding internet access and ensuring that networks can support increased traffic. Along with its widely publicized Keep Americans Connected Initiative--an elective pledge for communications providers--the FCC has taken a number of regulatory actions aimed at promoting internet connectivity. This Sidebar provides an overview of how COVID-19 has affected the FCC's operations, some ways the FCC has responded thus far, and common criticisms and perceived shortcomings of the FCC's approach."
Library of Congress. Congressional Research Service
Holmes, Eric N.
2020-05-21
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Stepping in: The FCC's Authority to Preempt State Laws Under the Communications Act [March 26, 2021]
From the Summary: "The line between federal and state authority plays a central role in modern communications law. Rather than fully displacing state law, the Communications Act of 1934 (Communications Act or Act) sets up a dual system of federal and state regulation.At the federal level, the Communications Act gives the Federal Communications Commission (FCC or Commission) broad authority to regulate wired and wireless telephony, radio transmissions, cable services, and matters that are ancillary to these areas. At the same time, however, the Act expressly preserves some state regulatory authority over these technologies. Consequently, the boundary between the FCC's authority and the states' has been a source of dispute. [...] Far from being an abstract debate, the FCC's ability to preempt state laws lies at the heart of many of its regulatory initiatives in recent years. [...] This Report discusses these issues in more detail. It begins with an overview of the legal framework governing the FCC's preemption actions, first discussing general federal preemption principles and then explaining the FCC's preemption authority under the Communications Act. The Report then reviews recent FCC initiatives in which FCC preemption plays a key role. Specifically, it explains how the FCC has exercised its preemption authority--and the extent to which such authority has been challenged or is uncertain--in the areas of net neutrality, VoIP [Voice over Internet Protocol], 5G [fifth-generation wireless] infrastructure deployment, community broadband, and state and local regulation of cable operators."
Library of Congress. Congressional Research Service
Linebaugh, Chris D.; Holmes, Eric N.
2021-03-26
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Children and the Internet: Legal Considerations in Restricting Access to Content [March 14, 2022]
From the Summary: "Throughout the internet's history, the medium's effect on children has been a recurring topic of interest to legislators and the public. In the internet's early days, much attention focused on children's access to online pornography. Today, commentators have expressed concern with a range of issues including targeted advertising, eating disorders, and self-harm. One possible legislative approach to issues arising from children's use of the internet is to regulate particular types of content that might pose harms to children. When undertaking such efforts, legislators might consider that laws that restrict the provision of expressive material may infringe on free speech rights guaranteed by the First Amendment of the United States Constitution, and laws that target specific categories of speech based on its content are subject to the demanding 'strict scrutiny' standard of judicial review. Congress has attempted to criminalize the provision of internet content that is 'harmful to minors,' but courts applying the strict scrutiny standard have struck down these statutes as unconstitutional under the First Amendment."
Library of Congress. Congressional Research Service
Holmes, Eric N.
2022-03-14
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Supreme Court Preview of 2020-2021 Environmental and Energy Law Cases and Review of 2019-2020 Rulings [Updated February 11, 2021]
From the Summary: "The Supreme Court 2019-2020 term, which started on October 1, 2019, was historic in unexpected ways. The Coronavirus Disease 2019 (COVID-19) pandemic resulted in the Court indefinitely closing its building to the public, postponing oral arguments, and conducting telephonic oral arguments for the first time in history. Beyond the effects of the pandemic, the 2019-2020 Term was notable for the substantive opinions that the Supreme Court issued on environmental, energy, and natural resources (EENR) law issues. [...] The Supreme Court's 2020-2021 term, which began on October 5, 2020, features cases relating to states' competing claims to several interstate rivers, disclosure of agency documents produced during an Endangered Species Act consultation, the appropriate court to decide climate change liability suits, the small refinery exemptions under the Clean Air Act's renewable fuel standard, the relationship between separate CERCLA [Comprehensive Environmental Response, Compensation, and Liability Act] provisions for recouping cleanup costs, eminent domain authority under the Natural Gas Act, and other areas of EENR law. [...] This report reviews some the major EENR decisions from the Supreme Court's 2019-2020 term and previews the legal disputes and arguments in selected EENR cases and petitions for certiorari in the 2020-2021 term. The report also highlights the broader implications of these decisions and cases for Congress."
Library of Congress. Congressional Research Service
Tsang, Linda; Bowers, Kate R.; Holmes, Eric N. . . .
2021-02-11
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Regulating Internet Access: Lessons from COVID-19 [July 20, 2020]
From the Document: "As some states and localities have paused re-opening efforts in response to recent increases in COVID-19 [coronavirus disease 2019] cases, internet access continues to serve a critical role to help many individuals work, learn, and receive healthcare from home. The Federal Communications Commission (FCC or Commission) has encouraged internet service providers to expand internet access and ensure that networks can support increased traffic. A centerpiece of the FCC's approach in the early stages of the COVID-19 emergency was the Keep Americans Connected Pledge. Internet providers who took the voluntary pledge promised to waive late fees and not disconnect a customer's service through June 30. [...] This Legal Sidebar discusses how the FCC's statutory authority under the Communications Act applies to broadband internet access. The Sidebar concludes with a brief discussion of how the FCC's interpretation of its statutory authority has shaped the Commission's response to COVID-19 and the congressional role in regulating broadband access."
Library of Congress. Congressional Research Service
Holmes, Eric N.
2020-07-20
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COVID-19: Digital Contact Tracing and Privacy Law [July 9, 2020]
From the Document: "Many states, territories, and localities have implemented public health orders to limit the spread of Coronavirus Disease 2019 (COVID-19) in their respective communities, including stay-at-home orders, orders temporarily closing schools and businesses, and orders limiting the size of public gatherings. In preparation for the eventual relaxation and lifting of these orders, the Centers for Disease Control and Prevention (CDC) have advocated that public health authorities use robust 'contact tracing' procedures to prevent the reoccurrence of widespread infections after communities reopen. While federal entities may advise on these procedures, state and local authorities are responsible for contact tracing operations, as provided by state law."
Library of Congress. Congressional Research Service
Holmes, Eric N.; Linebaugh, Chris D.
2020-07-09
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Privacy Law and Private Rights of Action: Standing After 'TransUnion v. Ramirez' [July 22, 2021]
From the Document: "Data privacy continues to be an important issue for legislators at both the state [hyperlink] and federal [hyperlink] levels, and a frequent consideration for privacy legislation is whether consumers will be able to sue those who violate their privacy rights. The availability of federal courts to hear litigation implicates the constitutional doctrine of 'standing': the notion that a federal court may only hear a claim that alleges a 'case or controversy' [hyperlink] between the plaintiff and the defendant. In the Supreme Court's recent decision in 'TransUnion, LLC v. Ramirez' [hyperlink], the Court addressed whether a class of more than 8,000 plaintiffs alleging violations of the Fair Credit Reporting Act [hyperlink] (FCRA) had standing given that many of the plaintiffs alleged no harm other than the FCRA violations themselves. The Court's analysis in 'TransUnion' and the outcome of the case--in which the Court determined that only 1,853 class members had standing to sue--may be a blueprint for federal courts addressing questions of standing in future claims involving privacy rights or other statutory violations. This Legal Sidebar briefly outlines the doctrine of standing before turning to a discussion of the Supreme Court's opinion in 'TransUnion'. The Sidebar concludes with considerations for federal privacy legislation in light of 'TransUnion.'"
Library of Congress. Congressional Research Service
Holmes, Eric N.
2021-07-22
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Stepping in: The FCC's Authority to Preempt State Laws Under the Communications Act [Updated September 20, 2021]
From the Summary: "The line between federal and state authority plays a central role in modern communications law. Rather than fully displacing state law, the Communications Act of 1934 (Communications Act or Act)sets up a dual system of federal and state regulation. At the federal level, the Communications Act gives the Federal Communications Commission (FCC or Commission) broad authority to regulate wired and wireless telephony, radio transmissions, cable services, and matters that are ancillary to these areas. At the same time, however, the Act expressly preserves some state regulatory authority over these technologies. Consequently, the boundary between the FCC's authority and the states' has been a source of dispute. [...] This Report discusses these issues in more detail. It begins with an overview of the legal framework governing the FCC's preemption actions, first discussing general federal preemption principles and then explaining the FCC's preemption authority under the Communications Act. The Report then reviews recent FCC initiatives in which FCC preemption plays a key role. Specifically, it explains how the FCC has exercised its preemption authority--and the extent to which such authority has been challenged or is uncertain--in the areas of net neutrality, VoIP, 5G infrastructure deployment, community broadband, and state and local regulation of cable operators."
Library of Congress. Congressional Research Service
Linebaugh, Chris D.; Holmes, Eric N.
2021-09-20
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This Land is Your Land? Eminent Domain Under the Natural Gas Act and State Sovereign Immunity [October 30, 2019]
From the Document: "In passing the Natural Gas Act of 1938, Congress acknowledged that interstate natural gas pipelines and other natural gas transmission facilities serve the public interest. To facilitate the land acquisition process for pipelines, Congress amended the Natural Gas Act in 1947 to permit natural gas companies to exercise the power of federal eminent domain. But pipeline routes can require more than just privately owned property. In 2018, a pipeline construction company sought to exercise eminent domain over land set aside by the State of New Jersey for agriculture, conservation, and recreation. When New Jersey opposed the eminent domain action, the ensuing court battle set up a clash of two powers: the pipeline company's eminent domain power and New Jersey's power to control state lands and retain its sovereign immunity against the pipeline company. The Third Circuit's opinion in 'PennEast Pipeline Company, LLC v. New Jersey' calls into doubt whether the Natural Gas Act permits natural gas companies to condemn state lands--or whether such a grant of authority would even be constitutional. The issue is poised to reach another court of appeals in the coming months and may find its way to the Supreme Court."
Library of Congress. Congressional Research Service
Holmes, Eric N.
2019-11-05
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What is an Autodialer (Part II)? The Supreme Court (Mostly) Resolves a Robocall Enforcement Question [April 28, 2021]
From the Document: "The Telephone Consumer Protection Act (TCPA) makes it illegal to call any wireless phone number using an 'automatic telephone dialing system' (an autodialer) or an artificial or prerecorded voice. While the text of the TCPA defines [hyperlink] 'automatic telephone dialing system,' uncertainty has emerged over how this definition--written in 1991--applies to a technological landscape that is far different today from what existed at the time the TCPA became law. On April 1, 2021, the Supreme Court issued a unanimous decision in 'Facebook, Inc. v. Duguid', [hyperlink] reversing the Ninth Circuit's interpretation of the term 'automatic telephone dialing system' used in the TCPA. The TCPA defines an automatic telephone dialing system as 'equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.' [...] [The Supreme Court] held [hyperlink] that an automatic telephone dialing system is one that has the capacity to either store a telephone number using a random or sequential number generator or produce a telephone number using a random or sequential number generator. This Legal Sidebar briefly discusses the Supreme Court's decision and considerations for Congress relating to the TCPA's autodialer definition."
Library of Congress. Congressional Research Service
Holmes, Eric N.
2021-04-28
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Overview of the American Data Privacy and Protection Act, H.R. 8152 [June 30, 2022]
From the Document: "On June 21, 2022, the House Energy and Commerce Committee introduced the American Data Privacy and Protection Act (ADPPA), H.R. 8152 [hyperlink], which would create a comprehensive federal consumer privacy framework. Some commentators have noted [hyperlink] the bill's novel compromises on two issues--whether to preempt state privacy laws and whether to create a private right of action--that have impeded [hyperlink] previous attempts to create a national privacy framework. The bipartisan bill is co-sponsored by House Energy and Commerce Committee Chairman Frank Pallone, Jr. and Ranking Member Cathy McMorris Rogers and promoted in the Senate by Senate Commerce Committee Ranking Member Roger Wicker. In a joint statement, Representatives Pallone and McMorris Rodgers and Senator Wicker described the bill [hyperlink] as 'strik[ing] a meaningful balance' on key issues. Senate Commerce Committee Chair Maria Cantwell, however, has critiqued [hyperlink] the ADPPA as having 'major enforcement holes,' prompting other commentators to question [hyperlink] whether the Senate will pass the bill. Members of the House Energy and Commerce Committee raised additional concerns [hyperlink] during a markup hearing on June 23, 2022. Still, some scholars [hyperlink] are hopeful that Congress will pass the bill. This Sidebar first provides a summary of the ADDPA. It then compares several of the bill's key provisions to other privacy bills from the 117th and 116th Congresses before examining some considerations for Congress, including potential next steps for the legislation."
Library of Congress. Congressional Research Service
Gaffney, Jonathan M.; Linebaugh, Chris D.; Holmes, Eric N.
2022-06-30
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Update: Section 230 and the Executive Order on Preventing Online Censorship [Updated October 16, 2020]
From the Document: "'Update: On October 15, 2020, Federal Communications Commission (FCC) Chairman Ajit Pai announced that the FCC will adopt rules interpreting Section 230 of the Communications Decency Act. FCC General Counsel Tom Johnson confirmed that his office has advised Chairman Pai that "the FCC has the legal authority to interpret Section 230." Chairman Pai's statement comes after the National Telecommunications and Information Administration petitioned the FCC for rulemaking. On August 3, 2020, the FCC invited public comment on the petition for 45 days and received more than 20,000 comments in response.'"
Library of Congress. Congressional Research Service
Brannon, Valerie C.; Hart, Nina M.; Holmes, Eric N. . . .
2020-10-16
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Section 230: An Overview [April 7, 2021]
From the Summary: "Section 230 of the Communications Act of 1934, enacted as part of the Communications Decency Act of 1996, provides limited federal immunity to providers and users of interactive computer services. The law generally precludes providers and users from being held liable--that is, legally responsible--for information provided by a third party, but does not prevent them from being held legally responsible for information that they have developed or for activities unrelated to third-party content. Courts have interpreted Section 230 to foreclose a wide variety of lawsuits and to preempt laws that would make providers and users liable for third-party content. For example, the law has been applied to protect online service providers like social media companies from lawsuits based on their decisions to transmit or take down user-generated content."
Library of Congress. Congressional Research Service
Brannon, Valerie C.; Holmes, Eric N.
2021-04-07
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Supreme Court Nomination of Judge Ketanji Brown Jackson: Initial Observations [February 28, 2022]
From the Document: "On February 25, 2022, President Joe Biden announced [hyperlink] the Supreme Court nomination of Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit). If confirmed, Judge Jackson would fill the vacancy left by the upcoming retirement [hyperlink] of Associate Justice Stephen Breyer, whose jurisprudence is discussed in another Legal Sidebar [hyperlink]. This Sidebar provides initial observations about Judge Jackson based on decisions she issued while serving on the federal bench."
Library of Congress. Congressional Research Service
Brannon, Valerie C.; Bowers, Kate R.; Holmes, Eric N. . . .
2022-02-28
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