OPEN MIKE BY JACK GOODMAN

Dubious Grounds For The FCC’s Restriction Of Section 230

FCC Commissioner Michael O’Rielly saw his nomination withdrawn by President Trump for having the temerity to question whether the FCC has the authority to adopt rules to limit the scope of Section 230 of the Communications Act. All clear legal signs point to the fact that it doesn’t.

Acting at President Trump’s direction, the Commerce Department recently asked the FCC to adopt rules to limit the scope of Section 230 of the Communications Act. Section 230, adopted in 1996 as part of the Communications Decency Act, tells the courts that they cannot impose liability on internet services for the content of material uploaded to those sites by third parties, even if the internet service provider takes some steps to edit or restrict the content of some messages.

The president and his supporters contend that internet platforms such as Facebook and Twitter have exercised their editorial control in a biased way which, they claim, resulted in suppression of “conservative” points of view. The rules the administration proposes are intended to prevent such content-based editorial control or penalize platforms if they do not desist from editing posts by exposing them to liability for defamation.

The FCC has now asked for comment on the rulemaking petition as it does with almost every rulemaking request it receives. Commissioner Michael O’Rielly asked some questions about whether the FCC has the authority to adopt these rules, consistent with the First Amendment. For his temerity in merely raising the issue, he was apparently punished by the president, who withdrew his nomination for a new term on the FCC. It is perhaps ironic that, for an administration that purports to be favoring free speech, Commissioner O’Rielly’s exercise of that right lost him his position.

It can hardly be denied that social media platforms have grown far beyond the imagination of the authors of Section 230 and that they have been used or misused to disseminate misleading information, some of it apparently placed by hostile foreign entities. It may very well be time for a national conversation about the role of social media platforms and the responsibilities that their operators should have.

I take no position here on the question of whether Section 230 should be amended, whether its provisions are ambiguous, or what the rules governing social media should be. Instead, I want to look at the arguments raised by the administration that the FCC can or should rework the rules governing social media. To that question, the Commerce Department petition I believe fails to make its case.

From the get-go, the arguments made in the rulemaking petition are surprising ones to come from this administration.  The petition makes clear that it views social media platforms as public forums that should be regulated to ensure that they do not discriminate. This, however, is the same administration that advocated repeal of the Wheeler FCC’s rules making internet service providers (which are at least entities directly subject to FCC regulation) common carriers and required them to treat all users in a non-discriminatory manner.

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Remarkably, the rulemaking petition even cites the Wheeler Open Internet order as support for its proposal. It is not clear if this represents a change in the administration’s position on net neutrality, but for sure, the FCC would have a difficult time explaining why it is imposing non-discrimination rules on social media platforms when it repealed similar rules for internet service providers.

The rulemaking petition then argues that there is widespread viewpoint-based discrimination on social media platforms. What the administration points to are allegations in one apparently unadjudicated complaint in a federal trial court, a few anecdotes, claims about ad purchases on social media platforms and statements by Commissioner Brendan Carr supporting the president’s executive order. The petition cites no evidence showing widespread discrimination or that messages which are edited or blocked are limited to one viewpoint.

In fact, the petition candidly acknowledges that “few academic empirical studies exist of the phenomenon of social media bias.” The FCC, however, is not permitted to adopt rules based on speculation or anecdote, and without evidence of pervasive conduct and bias, any rules it adopts would be subject to attack in the courts as unjustified.

Apparently recognizing the lack of evidence of extensive viewpoint-based favoritism by social media platforms, the petition then argues that things have changed in the online world since Congress adopted Section 230, and thus the balance Congress struck then must be altered.

It is certainly true that the online world is very different than it was in 1996, but the petition does not explain why it is the FCC that should make changes, rather than Congress, which adopted Section 230 in the first place. The application of Section 230 in ways that were not contemplated when it was adopted is not unusual or unprecedented. Indeed, the Supreme Court reminded us only last month that the words Congress uses in a statute apply even in contexts that Congress could not have contemplated.

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Even assuming that there is evidence of a problem with Section 230, the next question is whether the FCC has any authority in this area. Here again, the Commerce Department petition provides only a facile response. It argues that the Communications Act grants the FCC broad rulemaking authority over all of the areas regulated by the act, and that the general rulemaking grant applies even to portions of the act that were adopted in post-1934 amendments, regardless of whether a specific amendment refers to FCC rules.

That, as far as it goes, is true. But that does not answer the question of whether the FCC has any authority to change Section 230 and the protections it grants internet-based services. The courts have limited FCC rules to things that the FCC has authority to regulate. For example, the FCC’s mandate of digital tuners in TV receivers was upheld because Congress, in the All-Channel Receiver Act, specifically granted the FCC authority to adopt rules to ensure that TV sets could receive all authorized broadcast channels.

By contrast, the court vacated an FCC rule requiring receivers and set-top boxes to include specific protections against theft of digital content because it held the FCC had no authority over TV receivers once they had received the signal.

Moreover, the courts have cautioned the FCC that its rulemaking authority should be narrowly construed if proposed rules affect content. By reducing or punishing the editorial discretion of social media platforms, the rules proposed by the Commerce Department would certainly affect content, and thus arguments resting on the FCC’s supposedly broad rulemaking power would carry less weight here.

Section 230 does not even mention the FCC or any FCC proceedings or rules. Instead, it is directed to the courts and limits their ability to impose damages on internet companies. Since social media platforms are generally not even FCC licensees or operators of FCC-regulated facilities, and instead transmit information across facilities that are licensed to other entities, it is unclear what FCC authority adopting rules limiting the scope of Section 230 would advance.

The courts upheld early FCC cable regulations because, they found, those rules were “ancillary” to the FCC’s regulation of TV stations. The rulemaking petition does not explain what other FCC regulations would be stymied if it did not change the way Section 230 operates.

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Perhaps implicitly conceding that there is nothing to indicate that Congress intended to give the FCC authority to change Section 230, the petition finally argues that the FCC has jurisdiction because Congress did not explicitly exclude the FCC from adopting rules concerning Section 230.

The courts, however, have made short shrift of FCC attempts to make similar arguments. From MPAA v. FCC: “The FCC’s position seems to be that the adoption of rules … is permissible because Congress did not expressly foreclose the possibility. This is an entirely untenable position.”

As another court explained in Railway Labor Executives Association v. National Mediation Board, “were courts to presume a delegation of power absent an express withholding of such power, agencies would enjoy virtually limitless hegemony, a result plainly out of keeping with [administrative law principles] and quite likely with the Constitution as well .”

There does not seem to be any reason, or at least none identified by the administration, to think that the proposed Section 230 rules would suffer a better fate.

Two final points: First, since the FCC has no authority over defamation suits, courts in which claims against social media companies are brought could simply ignore the FCC’s rules. Unlike the FCC’s decision 30 years ago to preempt lawsuits against stations for claimed violations of the lowest unit charge rules, the FCC does not provide a forum for people complaining about the content of social media sites, and courts would not necessarily be obliged to go along with an FCC decision.

Second, all of the arguments made in support of FCC rules — changes in circumstances since Section 230 was adopted, alleged abuse of social media providers’ powers, ambiguity in the statute — could be made as well to the courts in cases brought be people or entities complaining about the content of social media or complaining that their messages were edited or blocked. Both of these points suggest that the FCC has no role to play in determining the scope of Section 230, and that any action it might take would prove ineffective.

Thus, doubts raised about the FCC’s authority to adopt rules limiting Section 230 seem to be well justified.

Jack Goodman practices communications law in Washington, D.C. He was previously general counsel of the National Association of Broadcasters. He can be reached at [email protected]


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