The Federal Communications Commission’s crucial role in regulating Big Tech

The internet has gone from instant messaging platforms like AOL to literally managing our everyday lives. Indeed, Big Tech is no longer a gaggle of scrappy startups. They have matured into trillion-dollar giants that manage everything we see and do. They have even entered into more legacy industries, making the most notable impact to the telecommunications and media markets.

As these companies continue on into traditional industries, the more aware they must be when it comes to who regulates them. 

For tech regulation, most knee-jerk reactions immediately go to two federal agencies, the Federal Trade Commission (FTC) and the Department of Justice (DOJ). Despite what many have argued, the Federal Communications Commission (FCC) is an agency that plays a significant role. Generally, we associate the FCC’s jurisdiction with patrolling, as the late George Carlin described, the “seven dirty words.”

But the agency does much more than police crude language over the airways. Due to the migration of media, communications and tech, the agency has a lot of discretion when it comes to regulating tech companies.

The reason for this regulatory shift is due to tech vertically integrating media and communications services with its own offerings. At one time, there was a clear distinction between tech and telecom companies, which made determining regulatory requirements relatively easy to silo. Today, tech’s vertical integration has augmented their regulatory compliance footprint to include the FCC.

Indeed, tech’s shift into telecom has positioned the FCC into an agency that can have a dramatic impact on their respective business models in myriad ways. For instance, Meta, Google and Amazon provide a form of wireless broadband that requires these tech companies to get FCC sanction to deliver those services. These services categorically make them regulated entities under the FCC’s jurisdiction.

It has even gotten to the point where FCC officials who own stock in Big Tech companies have been asked to recuse themselves from FCC proceedings involving certain tech companies. Google, in particular, has several active proceedings in front of the FCC. Google even needed FCC approval to use part of a shared U.S. and Taiwanese undersea telecommunications cable “to connect Google’s Taiwan data center to Google data centers in the United States and to serve users throughout the Asia-Pacific region.”

What’s more, the FCC plays an integral role in ensuring wireless devices are safe to use. Google and Apple both develop and manufacture wireless devices. Each one of those devices must go through an FCC authorization before they can enter into the market. In other words, if Apple and Google want to provide you mobile phones, tablets, streaming devices or routers, they must go through the FCC first. 

Currently, the FCC is evaluating its authority to impose contribution requirements on streaming services to fund its universal service programs. The Communications Act gives the FCC broad authority to establish an equitable contribution system for its Universal Service Fund. This authority can require streaming video entertainment providers and other traffic creators to contribute, directly or indirectly, to its Universal Service Fund.

For instance, some streaming video entertainment providers self-provision, and so the FCC can require those “providers of telecommunications” to contribute directly to the Fund. For streaming services that don’t self-provision, the FCC could still require indirect contributions by targeting assessments to those providers of telecommunications that interconnect these tech giants to the public and allow those interconnecting providers to pass along their contributions to those that create the traffic.

The FCC also has argued that it has interpretive authority over Section 230’s “Good Samaritan” law given that the statute sits in Title II of the Communications Act. The Good Samaritan law shields platform companies from liability for their users’ posts when those companies provide an “interactive computer service” (e.g., social media sites or a digital marketplace). Theoretically, the FCC could determine what services qualify as an interactive computer service due to the term’s inherent ambiguity, and, by extension, what services could avail themselves to those Section 230 protections. As the FCC’s former general counsel argued:

“While Section 230 itself deals primarily with an immunity shield, that fact alone does not exempt it from Commission rulemaking. [The courts] make clear that the FCC can clarify even those ambiguous statutory provisions within the [Communications] Act that are arguably directed toward courts—such as preemption or jurisdictional provisions.”

In short, as we see more tech integration, it’s important to understand the role the FCC can play in the tech space. It’s fair to say that not only does the FCC have authority over tech, but it is poised to do more.

Joel Thayer is president of the Digital Progress Institute and a Washington-based telecom and tech attorney.