Matt Schettenhelm

Not clear the courts thought the TikTok law permits TikTok Inc or ByteDance to retain ownership of the app or algorithm.

Thank you to Joe Mathieu, Mario Parker and Bloomberg Radio for the extended conversation about my Bloomberg Intelligence research explaining how the TikTok "divestiture" raises serious legal... Thank you to Joe Mathieu, Mario Parker and Bloomberg Radio for the extended conversation about my Bloomberg Intelligence research explaining how the TikTok "divestiture" raises serious legal questions...

Extended conversation about it on Bloomberg Radio here. www.linkedin.com/posts/mattsc...

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.

It Took Two Tries For The DOJ To Convince Apple And Google To Restore TikTok Fearing enormous fines, Google and Apple held off from reinstating TikTok to their app stores until the DOJ sent them a second version of President Trump’s “written guidance.”

It's hard to challenge a decision not to prosecute.

But a written statement about whether the law has been violated?

It's possible the "no violation" letters are the support on which the current status quo is built.

www.forbes.com/sites/richar...

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/...

Thanks!

Public Companies Should Be Transparent About Not Complying With TikTok Ban Public companies’ reliance on Trump’s questionable executive orders allowing them to not comply with the TikTok ban raises questions about their potential liability and whether they should disclose th...

@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...

Or 10-K, my bad -- I see your link now.

Sure! That looks right. Think it was in the last 10-Q.

Akamai made such a disclosure.

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

Zuckerberg's Regulation Call Violates First Amendment, FCC's Carr Says (Video)

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.

At oral argument, Justice Sotomayor asked if the part of the law that stops the post-divestiture companies from "conferring on the algorithm" should be cut out of the law -- the SG resisted that, but was willing to accept it.

The Supreme Court didn't make that cut.

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...

Strangely, no judge at the Eighth Circuit stopped to ask the FCC why it was still defending an order that Brendan Carr and fellow Republican Nathan Simington dissented to.

The FCC could opt not to defend the rules, by urging the court to hold the case in abeyance until it can re-visit its rules. But by keeping up the fight, the FCC opens the door to the court wiping away the rules much faster than the FCC itself could through a rulemaking.

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.

2. Has any TikTok user data been accessed improperly in China after January 19? If so, it would boost TikTok users' case of standing if they were to challenge Trump's EO. Demonstrating specific, concrete harm is one of biggest hurdles.

1. Is Musk's work on X in any way connected to his work as a special federal gov't employee? A link between the two may boost a case that X's content moderation -- while the platform is owned by a federal gov't employee -- constitutes state action under the First Amendment.

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.