The curious thing about Trump's TikTok "qualified divestiture": it appears not to involve any divestiture by ByteDance at all. Our take today.

Worth reading Judge Pan's dissent today raising dispensing power. D.C. Circuit said groups that were denied appropriated funding couldn't sue for constitutional violation, only a statutory one. On statutory issue, court found no "extreme" violation. media.cadc.uscourts.gov/opinions/doc...

Puzzlingly, the "irrevocably relinquish" language is only included for some companies, for some periods. For example, it wasn't included in a 4/5 letter to Microsoft. But it then was added in a second letter to the company on 4/8. x.com/mattschett/s...

Key Paramount-Trump legal backdrop: 1) Texas has anti-SLAPP law -- path to speedy dismissal of free-speech cases -- but CA5 says it doesn't apply in federal courts. There's no federal anti-SLAPP law. 2) No time limit in law on FCC reviews. FCC's on day 230 of informal 180-day review.

Admin law question re TikTok law extension: Would AG letters "stating that there has been no violation of the statute" qualify as "agency action" ("statement of...particular applicability and future effect designed to...interpret... law") under APA? www.whitehouse.gov/presidential...

The FCC has now passed its nonbinding 180-day timeline to act on Skydance-Paramount matter. FCC Chair Brendan Carr told Congress last July that he would support "deemed granted" remedy so FCC shot clock would have "teeth." www.fcc.gov/transaction/... www.congress.gov/118/meeting/...

@mattschett.bsky.social thanks again for pointing this out! I updated my piece to refer to it and gave you a hat tip in the update. www.americanprogress.org/article/publ...

Fox settled Dominion suit about 2020 election coverage for $787 million. Summary judgment briefs in Smartmatic’s similar case against Fox are due today.

Brendan Carr, 2019: regulating hot-button issues like immigration "dangerous"; "How do you define?"; "Facebook wants politicians to start making those decisions" www.bloomberg.com/news/videos/... Carr, 2025: news coverage doesn't meet my definition of public interest: x.com/BrendanCarrF...

Two qs about CA5 ruling in ATT v FCC on 4/17: 1-Is constitutional avoidance still a thing? Court skipped statutory challenge to take up constitutional issue. 2-Judge Haynes said she concurs in judgment only, but didn't explain why. Is that common? www.ca5.uscourts.gov/opinions/pub...

TikTok itself explained the law's "operational relationship" language in its petition to the D.C. Circuit last May. It said that the statute "requires" moving all TikTok source code to a new TikTok owner.

For a transaction to be a "qualified divestiture" under the TikTok law, Trump must determine there's no "operational relationship" between a new US entity and any "formerly affiliated" entity (ByteDance), including "any" cooperation with respect to algorithm's operation.

The FCC has been described as an independent agency for decades, including by SCOTUS itself. But yesterday, the US Solicitor General basically seemed to admit the FCC is *not* actually an independent agency at all. www.supremecourt.gov/oral_argumen...

Challenges to the FCC's media-ownership rules have been stuck in the Third Circuit for decades. Not anymore. On March 19, broadcasters are likely to urge an Eighth Circuit panel of 3 Republican-named judges to wipe the FCC rules off the books entirely.

Two areas where new facts could be critical on potential legal issues in the TMT space right now:

Legit question: If a special federal govt employee also owns a social-media platform and prioritizes or deprioritizes speech on that platform, does that constitute state action for First Amendment purposes? Does Lindke also set the appropriate test in case of platform ownership by a fed employee?

FCC Chair Brendan Carr again made key point about an FCC Sec. 230 rulemaking: 230(c)(1) "makes a lot of sense, it's a pro-speech provision." "The problems come in at 230(c)(2)." For platforms, much more important protection in 230's liability shield is (c)(1). t.co/q2V0pRgxrg

If this is true, a comparison of those letters would be fascinating.

Just a tremendous honor to debate my friend @alanrozenshtein.com on the TikTok case, with @zittrain.bsky.social's expert moderation, with Justice Breyer in the front row. Even more special to have my kids there--and relieved that they (and Justice Breyer) sided with me!

Still would like to see these TikTok AG letters. Possible that lawmakers could ask her what factual support she had to reach that conclusion.

9 Justices and three D.C. Circuit judges, but who's counting! I'm just excited that Anupam and I get to keep our frenemy Vaudeville act going for a little longer.

I don't know enough about the rest of the EO, but I think it's worth saying what this part on interpretation of law is all about. For most agencies, they are already bound to AG's position on what the law is. DOJ represents them in court. /1

In Lindke, SCOTUS set out a two-part test to address whether there's state action when a public official "uses" social media. Will test be the same to address if there's state action when a public official privately *owns and controls* a social-media platform? www.supremecourt.gov/opinions/23p...

If TikTok users challenged EO, they wouldn't rely on a "chain of possibilities" as attenuated as in Clapper. Decent case a threatened injury is "certainly impending" when EO ignores law and keeps sending data to parent in China. DC Circuit & SCOTUS already addressed if harm was speculative.

How can she say that there has been no violation of the statute? (As opposed to saying that she won’t bring any enforcement actions pending XYZ.)

I still won’t be surprised if we see a legal challenge to the TikTok EO or any extension of it, despite likely standing complications.

If anyone has a copy of one of the AG's letters on TikTok, please share. (There shouldn't be any legal confidentiality concerns, given that it's correspondence from a government official to a private company about the latter's legal duties and presumably doesn't reflect, e.g., trade secrets.)

It will be interesting to see exactly what Bondi’s TikTok letter said.

New: China might just let TikTok U.S. die rather than approve a sale. They have no interest in giving Trump a win unless he delivers a “grand deal” in exchange. Would embarrass the "Save TikTok" president and delight Chinese citizens, who see this as a David vs. Goliath tale wapo.st/3CH2Sy9

Trump's TikTok EO doesn't just tell the AG to exercise prosecutorial discretion (don't act). It also tells the AG to "stat[e]" in writing that there has been no violation of the statute. I wonder how the AG can make that statement.

Still can't download TikTok off the Apple or Google app stores. If that continues, we have our answer as to how much they want to risk legal liability based on Trump's word. @mattschett.bsky.social : Companies that reinstated TikTok already grew their “legal exposure from $0 to $850 billion"

This is right, but tricky thing is that Congress hasn't left itself time. If no unanimous consent, could take Congress days to extend/change. That's Congress's own fault. But fascinating whether it weighs on SCOTUS, which has power to adopt a brief admin stay (even if legally questionable).

Thoughts on network security, national security, AI, and my time at the FCC. cyberscoop.com/fcc-jessica-...

Guys, C-SPAN is momentarily in a state of lawless anarchy.

One week from a SCOTUS showdown, I discussed the path ahead for TikTok on Bloomberg Radio this morning. More details in the thread linked below.

This seems like a valid critique. If the last 20+ years of #netneutrality litigation shows anything, it's that there probably isn't one "plain meaning" on the classification question. That's why Chevron mattered: it let the FCC switch between alternative readings that could be called reasonable.

The holidays are behind us. Let's take a moment to consider the next few of weeks in media law. Jan 10-TikTok Ban oral arguments Jan 15-FSC v Paxton (Texas Age Verification) Jan 20-Trump inauguration Jan 21-Brendan Carr becomes chair of the FCC Jan 22 I teach internet and advertising law in spring

With TikTok set for a critical SCOTUS showdown on January 10, what does the legal path ahead look like? Some considerations here: x.com/mattschett/s...

Will TikTok win at SCOTUS? It's close case, yet we doubt it. Best predictor of how SCOTUS will see case isn't Trump's brief on politics. It's how D.C. Cir. panel that's ideologically like SCOTUS already ruled on law -- unanimously, without any sign of hesitation, against TikTok.

I'm also skeptical, but SCOTUS didn't deny TikTok's request for a stay -- at least not yet. The fact that SCOTUS didn't *grant* the injunction, despite the clear urgency, may very well tell us something.

Best evidence Trump TikTok brief won't sway SCOTUS: Neomi Rao. Rao is often sympathetic to Trump. When she ruled in this case, she already knew what Trump's brief says: he won election; now against ban; TT loss would leave him little room. Didn’t matter. She handed TikTok sweeping loss.

The Supreme Court’s decision this week *not* to hear a case about ISP regulation will give states more control over telcos and cable providers, much to the chagrin of companies that fought to weaken federal regulation. Solid explainer by @haroldfeld.bsky.social www.facebook.com/share/p/1Ghd...

Here's our statement on the Supreme Court fast-tracking the TikTok case. As I say "The TikTok ban itself and the DC Circuit's approval of it should be of great concern even to those who find TikTok undesirable or scary." www.eff.org/deeplinks/20...

Some more discussion here on how the Supreme Court is handling the TikTok appeal and what it all could mean: youtu.be/nfsSqBEu6_Y?...

The Supreme Court could have made everyone's life easier by simply staying the operation of the law until its constitutionality were resolved. After all, the Biden Administration stopped negotiating with TikTok in 2022--letting this supposed national security risk fester for another 2 years!

Srinivasan’s concurrence offers easy path around this.

SCOTUS has declined to hear a challenge to NY State's law requiring ISPs to offer an affordable broadband speed for low-income subs. This is a big deal. www.scotusblog.com/2024/12/cour... The fight around broadband now effectively shifts to the states, unless 6th Cir upholds Title II. /1

Most interesting part of TikTok SCOTUS filing is plea for 13-day "administrative injunction." That could offer a path for Court to deny TikTok's plea for full injunction, but also push 1/19 deadline by a couple days until Trump takes office.