- Facebook said it agreed with the Federal Communications Commission’s rules for broadcast stations – which are required to run all ads from political candidates – in a public spat with Elizabeth Warren over its decision to allow ads containing false information from Donald Trump.
- The FCC regulates broadcast stations in the public interest, and these networks have certain provisions against issuing false information.
- Facebook is under no such regulations, and it is not liable for posted content, as protected by Section 230 of the Communications Decency Act.
- However, experts say Facebook could one day face a similar set of rules as broadcast stations, as FCC Chairman Ajit Pai and bipartisan leaders have expressed a strong desire to introduce regulation.
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What is Facebook? Depending on where and when it’s asked, sometimes it’s a publisher, and sometimes it’s a platform.
But in its latest controversy – the decision to not fact-check ads from politicians – Facebook is positioning itself as most like a broadcast station.
@ewarren looks like broadcast stations across the country have aired this ad nearly 1,000 times, as required by law. FCC doesn’t want broadcast companies censoring candidates’ speech. We agree it’s better to let voters—not companies—decide. #FCC #candidateuse https://t.co/WlWePjh1vZ
— Facebook Newsroom (@fbnewsroom) October 12, 2019
Federal Communication Commission regulations state that broadcast stations – the local TV or radio stations that are often network affiliates – have to accept ads from political candidates, regardless if they are true or false. Broadcast stations are classified separately from cable networks, who have discretion; CNN chose not to run the Trump ad in question because it had been proven false.
According to Philip Napoli, the author of “Social Media and Public Interest: Media Regulation in the Disinformation Age,” courts have historically ruled in favour of counterspeech when it comes to ads from politicians. Instead of taking down false ads, which has been viewed as censorship, the government generally lets politicians issue all ads, believing that the public will make a reasonable decision on who to vote for.
Similarly, Facebook has said it doesn’t believe it should “prevent a politcian’s speech from reaching its audience and being subject to public debate and scrutiny.” For both the FCC and Facebook, the solution to false speech is usually considered to be more speech, it seems.
“Facebook is acting like a broadcast station in this case,” Napoli told Business Insider. “The irony, of course, is that there is no existing regulation that applies to them.”
What if the FCC regulated Facebook?
But Facebook is subject to no such regulation – it generally follows whatever rules it wants to – and it is not liable for any content posted via the service, as protected by Section 230 of the Communications Decency Act. If Facebook were actually a broadcast station, it would be subject to FCC regulation.
Wow, @fbnewsroom is comparing Facebook to federally regulated networks. If they want to go that route, they’ll want to be reminded broadcasters are also liable for the content that appears on their networks. https://t.co/rTTLtXKiBa
— Edmund Lee (@edmundlee) October 13, 2019
Still, the FCC is quite limited in media regulation, as it cannot generally infringe on the free press rights guaranteed by the First Amendment of the United States Constitution. But there are exceptions.
According to Napoli, the most common exception made is when there are implications for the public interest. For example, the FCC can regulate broadcast stations because they utlilize the broadcast spectrum, which is considered a public resource that is “owned by the people.”
Currently, this public interest framework isn’t applied to social media. But Napoli argues that Facebook is also built on a public resource – our user data – and it’s the only reason Facebook has been able to gain so much influence in the first place.
If Facebook is powered by this public resource, shouldn’t it be regulated in the public interest? This is how the FCC regulates broadcast stations, and Facebook is clearly acting like one in this case.
Of course, it would take a lot to enforce these regulations. The US currently lacks any guarantee of individual rights to their user data, and it seems like an even further jump to recognise aggregated user data as a public resource.
“The greatest threat to a free and open internet has been the unregulated Silicon Valley tech giants that do, in fact, today decide what you see and what you don’t. There’s no transparency. There’s no consumer protections and I think bipartisan members of both congressional chambers have now come to that realisation.”
The FCC and Facebook did not immediately respond to requests for comment.
Most of the calls for regulating Facebook, including Democratic presidential candidate Elizabeth Warren’s, are from an antitrust perspective – Facebook should be broken up because it is too big and harms competition, she argues.
While this regulation may also be necessary, Napoli points out another problem entirely. The FCC’s current regulations are entirely insufficient for social media, and our society is in dire need of an update, he says.
“We’ve just never had communications platforms operating on this scale, by a long shot,” Napoli said. “And we have this weird patchwork of regulations that becomes more fragmented every time a new technology becomes more important.”
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