On October 21, 2020, Federal Communications Commission (FCC, “Commission” or “Agency”) General Counsel, Thomas M. Johnson, Jr., released a blog where he outlined the FCC’s legal grounds on which the Agency can initiate a rulemaking to interpret Section 230 of the Communications Decency Act of 1996 (CDA).1 This comes on the heels of FCC Chairman Ajit Pai’s public announcement indicating that he will initiate such a rulemaking in response to the National Telecommunications and Information Administration’s petition for rulemaking.2 The FCC General Counsel asserts that the Agency has the authority to promulgate rules under Section 230 of the CDA. This is a drastic shift from this Commission’s usual deregulatory approach to technology because it could extend the FCC’s regulatory authority to edge-service providers (e.g., Google or Facebook) for violations under the CDA. More specifically, this rulemaking will have serious consequences for companies hosting any third-party content on their platform (e.g., a comment section or hosting blogs), as the FCC’s rules could narrowly interpret the Section 230(c) so-called “immunity shield” to apply to fewer companies. Additionally, in his blog, the FCC General Counsel cited Section 201(b) of the Communications Act of 1934 as its statutory authority to interpret Section 230 of the CDA, which could mean that the FCC may apply heavy-handed common carrier penalties to Section 230.
Section 230(c) shields “interactive service providers” from certain third-party posts or actions while on their platforms outside of the noted exceptions for criminal and intellectual property claims. An ‘interactive computer service’ means “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.”3 Essentially, this definition encompasses every online medium that can host or moderate third-party content, such as Google’s YouTube, Craigslist and even Airbnb. Section 230(c)(1) provides some immunity to those providers for various third-party content. It says that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”4 An “information content provider” is “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”5 This includes any person who posts a comment or a “blog” on a website, mobile app or any other Internet platform.
However, interactive computer service providers do have responsibilities under the statute. Under Section 230(d), interactive computer service providers are responsible for notifying customers “that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors.”6 Moreover, interactive computer service providers must also identify, or provide customers “with access to information identifying, current providers of such protections.”7
Under Section 201(b) of the Communications Act of 1934, the General Counsel states that “the FCC has the authority to interpret all provisions of the Communications Act, including amendments such as Section 230.”8 The General Counsel interprets Section 201(b) of the Communications Act as “confer[ring] on the FCC the power to issue rules necessary to carry out the provisions of the Act.”9 He goes on to note that it was Congress that expressly placed Section 230 into the Communications Act and “made clear that the FCC’s rulemaking authority extended to the provisions of that section.”10 The FCC General Counsel cited two U.S. Supreme Court cases (i.e., AT&T Corp. v. Iowa Utilities Board11 and City of Arlington v. FCC12) that he believes will allow the Commission’s rules to survive judicial review under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.13 He posits that in both cases, the U.S. Supreme Court ruled that the Commission has the general authority to interpret any part of the Communications Act (i.e., Title 47 of the U.S. Code), which includes Section 230. Based on the foregoing analysis, the FCC General Counsel believes the FCC can initiate a rulemaking to clarify the scope of the Section 230 immunity shield. However, there are still a slew of outstanding questions related to what source of authority the FCC will use to enforce its rules, because it is neither addressed in the Chairman’s announcement, nor in the General Counsel’s blog.
At the outset, this is far from the first time the Agency has regulated content, albeit under 18 U.S.C. § 1464, not Section 230. The FCC currently has the authority to regulate against “obscene” material on broadcast radio and television via its “indecen[cy]” standard.14 The FCC can (1) revoke a station’s license, (2) issue a cease-and-desist order to a station’s license or (3) impose a monetary forfeiture for a violation of Section 1464.15 Although the Commission may have the expertise to regulate offensive conduct in the context of over-the-air radio and television, it is debatable as to whether the FCC can adopt similar rules and penalties for its Section 230 rules, given that transmitting broadband services is inherently distinct from that of radio broadcasts or television. Based on previous case law, it is unclear whether the FCC could even repurpose its indecency standard for edge services or online mediums generally.16
As alluded to earlier, Section 201(b) applies to rules related to common carriers. In this context, “‘common carrier’ … means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy.”17 Traditionally, the FCC only regulates common carriers that provide “telecommunications services” or radio communications services. “The term ‘telecommunications’ means the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.”18 This poses a challenge for the Commission, as most interactive service providers only provide edge services (e.g., social media sites, streaming services, etc.), which the Agency does not traditionally regulate. At this point, it is unclear whether the FCC will change that tradition, but it appears as though it might be based off of the Chairman’s announcement referencing social media companies.
The FCC’s process follows a traditional regulatory notice-and-comment rulemaking procedure. Generally, notice-and-comment rulemaking is a procedure in which a federal agency – in this case, the FCC – issues a notice outlining the rules that a particular program or service would have to abide by if it were promulgated that day. The Agency sets out a time period (typically, the Commission allots 30 days for initial comments and 15 days for reply comments) in which the public may comment on its proposed rules, normally, after the FCC has published the rules in the Federal Register. After the comment period closes, all comments become part of the Commission’s record for that proceeding and, thus, the FCC must review and respond to those comments via an “order” that outlines its final rules. At this point, the FCC has yet to publish its notice of proposed rules.