The FTC has an “uphill battle,” said Herb Hovenkamp, University of Pennsylvania law professor, Tuesday on an Information Technology and Innovation Foundation webinar on the commission’s September antitrust complaint against Amazon (docket 2:23-cv-01495) in U.S. District Court for Western Washington in Seattle.

The Court of International Trade in an Oct. 18 opinion remanded the Commerce Department's decision to deny importer Seneca Foods Corp.'s eight requests for exclusions from Section 232 steel and aluminum duties on its tin mill product imports. Judge Gary Katzmann granted Commerce's voluntary remand request for reconsideration of two of the denials, while also remanding the remaining six exclusion request denials after finding the agency acted arbitrarily and capriciously in denying the requests. Commerce did not adequately address contradictory evidence, the judge said, noting the decisions raise questions about Commerce's entire administrative process.

House Commerce Committee Republicans renewed their concerns Tuesday with FCC Chairwoman Jessica Rosenworcel’s draft net neutrality NPRM reclassifying broadband as a Communications Act Title II service (see 2309280084), but no one is expecting GOP members of that panel or elsewhere on Capitol Hill to make a strong push for now on legislation to halt the expected rewrite. Net neutrality legislation would be even more unlikely to pass now amid divided control of Congress than it was last year when Democrats had majorities in both chambers (see 2207280063), lawmakers and lobbyists told us. Lawmakers are less enthusiastic about even pushing a pure messaging bill on the issue amid the current stasis, lobbyists said.

House Republicans nominated House Judiciary Committee Chairman Jim Jordan of Ohio as their pick for speaker after a contentious 124-81 vote that pitted him against Agriculture Committee Vice Chairman Austin Scott of Georgia. House Majority Leader Steve Scalise of Louisiana, a former Communications Subcommittee senior member (see 2310110057), withdrew as the designated GOP nominee Thursday, once it became clear enough Republican caucus members wouldn’t support him on the floor and thereby deny him an overall chamber majority. Jordan declared himself as again a speaker candidate after previously withdrawing in Scalise’s favor, while Scott got into the race because of misgivings about Jordan. A subsequent caucus poll on Republicans' commitment to vote for Jordan on the floor was 152-55, raising doubts about Jordan’s ability to get an overall House majority. Scott was among House Agriculture leaders who filed the Broadband for Rural America Act in 2021 in a bid to give the Agriculture Department more power to oversee rural connectivity buildout at the FCC's expense (see 2105210059).

Few courts have explored Section 230’s application to websites’ “algorithmic recommendations” in depth, reported the Congressional Research Service Thursday. But Congress “may consider” whether the broad Section 230 immunity currently recognized by courts “should apply to algorithmically sorted content or, alternatively, whether certain behavior or content should warrant different treatment under Section 230,” it said. Some members of the 117th Congress introduced several bills that would have addressed Section 230’s relationship with algorithmically sorted or recommended content, it said. Those bills “generally would have restricted the availability of Section 230’s protections” for platforms that recommend or promote certain content, it said. One of these bills, the Discourse Act, was reintroduced in the 118th Congress as S-921, it said. The free speech clause of the First Amendment “limits the government's ability to regulate speech,” said the report. Proposals that make Section 230’s protections unavailable for certain algorithmic operations “raise at least three questions,” it said. One is whether, if Section 230 is unavailable, hosting or promoting others’ speech on the internet “is itself protected under the First Amendment,” it said. If it is, the First Amendment “might restrict liability,” it said. A second question is whether modifying an existing liability regime “raises the same First Amendment concerns as enacting a law that directly prohibits or restricts speech,” said the report. A third question is, if such a proposal does raise First Amendment concerns, whether withholding Section 230’s protections for certain algorithmic operations affects speech based on its content, it said.

Orbital debris experts think the FCC's fining of Dish Network for improper disposal of one of its satellites (see 2310020049) shows the agency getting increasingly serious about orbital debris enforcement. Yet some doubt the fine and threat of more agency enforcement action will have more than a minor effect on how space operators operate. Several saw it a sign that the agency is planting its flag as the orbital debris regulator. Space operators will be much more diligent about tracking their fuel consumption and maybe not try to squeeze quite so much operational life out of their satellites, said Mark Sundahl, director-Global Space Law Center at Cleveland State University. He said it could lead to industry standards on fuel consumption. The commission didn't comment.

The court should grant the FTC’s motion to strike and dismiss defendants Iqvia and Propel Media’ s constitutional and equitable affirmative defenses with prejudice, said the FTC’s Wednesday reply memorandum of law (docket 1:23-cv-06188) in U.S. District Court for Southern New York in Manhattan. The FTC moved the court last month to strike those defenses asserted by Iqvia on the grounds that several raise constitutional challenges to the FTC’s process and powers that are “immaterial” and “impertinent” to the “narrow inquiry” that the court must undertake pursuant to Section 13(b) of the FTC Act in evaluating a claim for a preliminary injunction enjoining Iqvia from completing its purchase of Propel Media. Iqvia also raised defenses of laches and estoppel that weren't properly pled and can’t be raised against the government in the circumstances of this case, said the FTC's reply. The FTC will suffer prejudice if forced to expend resources defending against “sideshow matters that have no bearing on the Section 13(b) inquiry," said the agency. That's "especially true in light of the expedited nature of these proceedings and the far-reaching implications of Defendants’ allegations -- which attack the constitutionality not just of the FTC, but also of other federal agencies that use administrative proceedings to protect and serve the American public,” it said in September. Defendants argued in their opposing memorandum of law this month (see 2310050057) that Section 13(b) of the FTC Act allows a court to issue a temporary restraining order and preliminary injunction in favor of the FTC only after “weighing the equities” and considering its likelihood of success. “The Court must consider whether the FTC is likely to ultimately succeed on its underlying claim that the merger would be anticompetitive, and must weigh the equities of enjoining the merger pending the administrative proceedings,” defendants said, saying their constitutional defenses “challenge the constitutionality of the FTC itself as well as of the administrative proceedings in connection with which the FTC initiated this action.” Defendants didn’t cite one Section 13(b) case to support their “novel interpretation,” said the FTC’s Wednesday reply. Given the importance of constitutional challenges, “the statutory scheme of the FTC Act and the Federal Rules mandate certain procedures to ensure that the government has sufficient time to defend itself against such charges, which have implications across federal agencies,” it said. Defendants’ “self-imposed drop-dead date” for the acquisition, which they have established can be moved, “is not a basis to push this Court to grapple with far-reaching constitutional issues on an expedited schedule,” the FTC said.

A current revamp of Presidential Policy Directive 21 (PDD-21), which could mean outer space being declared critical infrastructure, is expected to be done by year's end, infrastructure policy experts told us. Proponents of such a designation say it would be a path to streamlined space industry rules, while critics warn of potentially more regulation. Asked whether it has discussed such a designation with the Department of Homeland Security, the FCC didn't comment.

Trade lawyers and importers are wondering how the anti-stockpiling element of a two-year pause on trade remedy circumvention deposits will be enforced.

California Assemblymember Jim Patterson (R) will try again next session on a vetoed bill that would have expanded eligibility for federal broadband grants administered by the California Public Utilities Commission, a Patterson spokesperson told us Wednesday. Wireless industry groups lamented Gov. Gavin Newsom’s Sunday veto of AB-1065, though they applauded the Democrat for signing AB-965, a bill meant to streamline the broadband permitting process.