Week In Review

IN THE NEWS

• The U.S. House of Representatives voted 279-136 to approve the Financial Innovation and Technology for 21st Century Act, a bill which would create classification criteria for digital assets, determine which federal agencies will regulate various assets, and create a registry for digital assets. The bill now heads to the Senate.  President Biden has not threatened to veto the bill if it were to pass the Senate, but he has indicated that he is opposed to the bill.
• A new rule adopted by the U.S. Federal Trade Commission on February 15, 2023, took effect this Tuesday. The new rule, commonly referred to as the T+1 rule, reduces the number of days required for securities transactions to settle from two days to one day. A trade settlement occurs when a buyer receives a security and the seller is paid. Regulators are hoping that a faster settlement process will reduce risk and improve efficiency. The rule arrived in response to the “meme stock” frenzy in 2021 involving GameStop. U.S. Securities and Exchange Commission Chair Gary Gensler said the change will make the U.S. financial markets more resilient.
• The U.S. Environmental Protection Agency (EPA) issued a final rule revising an existing regulation addressing drinking water safety data reporting and aimed at increasing the clarity and accuracy of these reports. The rule requires states, territories, and Tribes with primary enforcement responsibilities over drinking water safety to report monitoring data to the EPA. With these data, the EPA asserts that it can make more informed decisions concerning public health. The EPA expects the revised rule to help inform members of the public of their water quality and increasing accessibility to the information. The rule is also intended to increase the EPA’s ability to meet the requirements of the Safe Drinking Water Act.
• The U.S. Fish and Wildlife Service (FWS) issued a final rule designating habitat in Oregon and California for the coastal marten—a threatened mammal species—as “critical” under the Endangered Species Act of 1973. A critical habitat includes territory occupied by the species and specific areas outside that territory with features essential to the conservation of the species The rule designates more than one million acres of land within the Siuslaw National Forest, the Siltcoos National Forest, Coos Bay, Cape Blanco and the Klamath Mountains as critical habitat for the coastal marten.
• The Department of Housing and Urban Development (HUD) proposed a revision to the rules governing its HOME Investment Partnerships Program, which provides grants to state and local governments to facilitate affordable housing and offers rental assistance for low-income households. The proposed rule changes are intended to  streamline and modernize the program, increase flexibility in its requirements, and encourage investments in vulnerable communities. Proposed changes include those that would be aimed at strengthening protections for tenants receiving rental assistance through the program, as well as relaxing requirements for nonprofits to qualify as “community housing development organizations” and to receive corresponding program funding.
• The U.S. Environmental Protection Agency (EPA) proposed a new regulatory framework that would require states to identify and assess restructuring alternatives for public water systems that have repeatedly violated drinking water regulations. The rule would require state regulators to develop plans for assessing water systems and implement strategies for improving water service, which could include consolidation of multiple providers or transferring ownership of a failing system. These state plans would be subject to EPA oversight.
• The Federal Communications Commission proposed a rule that would require wireless carriers to implement georouting for calls made to the 988 Suicide & Crisis Lifeline. Currently, many calls to the 988 Lifeline are routed to regional crisis centers based on the caller’s telephone area code. The rule would instead require that system operators direct calls based on the geographic locations where they originate. The geolocating of callers is already available for 911 calls and, if extended to 988 calls, would allow crisis counselors “to provide tailored support” to callers. The proposal reflects the use of the 988 Lifeline, with around 80 percent of calls being made from cellular devices.
• The U.S. Coast Guard issued a final rule implementing a new operating schedule and safety requirements for all movable bridges over the Cuyahoga River, a major commercial waterway in the Great Lakes. The regulation, which responds to complaints about unclear scheduling and long wait times from vessel operators, includes requirements for “a countdown clock, … posting of a phone number, mandatory use of a VHF-FM Marine Radio by the drawtender, and mandatory signage.” These communication requirements are intended to ensure that mariners can navigate bridge openings with better efficiency and increase the ability of first responders to reach emergencies.

WHAT WE’RE READING THIS WEEK

• In a recent essay published in the Yale Journal on Regulation, Alan Z. Rozenshtein, a professor at the University of Minnesota Law School, argued that Section 230—a statute shielding internet platforms from liability for third-party content—is “deeply ambiguous” due to a “series of errors” made by Congress while writing the statute and courts while interpreting it. Rozenshtein proposed that courts should instead interpret Section 230 immunity narrowly, which would spur large technology companies to pressure Congress for clarification on the scope of immunity for internet platforms. Rozenshtein acknowledged, however, that the internet could be significantly disrupted  between the narrow judicial reinterpretation of Section 230 and the subsequent congressional response.
• In a recent Brookings Institution paper, Benjamin Cedric Larsen, from the World Economic Forum, and Sabrina Küspert, from the European AI Office, compared efforts taken by the EU and the U.S. to regulate general-purpose artificial intelligence (AI). The EU adopted an AI Act in 2024, which focuses on regulating general-purpose AI and ensuring transparency between AI providers. In the United States, President Joseph Biden issued “Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” in 2023, which proposed a licensing structure that would include independent oversight of companies’ general-purpose AI models when used in high-risk situations. Larsen and Küspertk argue that a key difference between the regulations imposed by the EU and the U.S. are the former’s mandatory components and the latter’s voluntary nature.
• In a recent essay published in the Northwestern University Law Review, Christopher S. Yoo, the John H. Chestnut Professor of Law at the University of Pennsylvania, argued that courts and legislatures should avoid classifying social media as common carriers providing telecommunication services. Calls to regulate social media are coming from both ends of the political spectrum and cases involving differing opinions on common carrier classifications have been granted certiorari by the Supreme Court. Proponents argue that classifying social media as common carriers would make restrictions on their right to exclude users more constitutionally permissible under the First Amendment. Yoo argues that social media cannot be considered a common carrier under either statutory definitions or common law definitions of common carriers. Even if social media could qualify as a common carrier under either of these definitions, Yoo explains that such a change in classification would not have any effect on the case-specific analysis demanded by the First Amendment to justify restrictions on social media.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Herbert Hovenkamp, the James G. Dinan University Professor at the Wharton School at the University of Pennsylvania, argued that courts should reevaluate their approach to remedies for antitrust violations to focus on remedies that center around consumer welfare principles, not policing powers that serve as limitations on companies’ power and size. Hovenkamp explained that past antitrust cases falter at the remedy stage due to the vague guidance of antitrust laws. Hovenkamp discussed that effective remedies should aim to enhance competition and consumer welfare, with options including injunctions, interoperability requirements, and governing boards to oversee decision-making processes, rather than breaking up entities, which can lead to inefficiencies and loss of consumer benefits.