The Free Internet Project

FCC request for comments on issuing regulations on Section 230 of the Communications Decency Act

Earlier in August 2020, the Federal Communications Commission opened a public comment period for people to express their views on "Petition for Rulemaking recently filed by the Department of Commerce regarding Section 230 of the Communications Decency Act of 1996." The inquiry was prompted by Donald Trump's Executive Order on Preventing Online Censorship, issued on May 28, 2020. Trump has accused social media sites of suppressing conservative speech after Twitter flagged some of his tweets for violating their community standards. In the Executive Order, Trump takes the view that Internet companies that "engage in deceptive or pretextual actions stifling free and open debate by censoring certain viewpoints" should lose immunity under Section 230 of the CDA. That provision states in part: “No 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." (47 U.S.C. § 230).  For more about how Section 230 operates, read our prior explanation. This legislation from a time when internet communications were in their infancy has been a vital protection invoked by social media sites that enable their users to exchange information. In the Executive Order, Trump called upon "the Secretary of Commerce (Secretary), in consultation with the Attorney General, and acting through the National Telecommunications and Information Administration (NTIA), [to] file a petition for rulemaking with the Federal Communications Commission (FCC) requesting that the FCC expeditiously propose regulations to clarify" Section 230. The NTIA did so, largely along the lines suggested by the Executive Order. 

Now, the FCC has opened up public comments on the NTIA petition. As of Aug. 24, 2020, the FCC has received 619 comments.  The FCC's involvement has already drawn controversy. In a speech in May, Republican FCC Commissioner Michael O'Reilly expressed "deep reservations" about whether the FCC had any authority to issue regulations on Section 230. On August 4, the White House announced it was withdrawing O'Reilly's nomination for another term on the FCC, meaning his tenure will end before the new Congress starts next year, according to the Wall Street Journal. 

Whether or not the FCC has legal authority to issue regulations related to Section 230 (which it hasn't done so far) is likely to be contested. It its petition, the NTIA argues: 

Section 201(b) of the Communications Act (Act) empowers the Commission to “prescribe such rules and regulations as may be necessary in the public interest to carry out this chapter.” Under this authority, the FCC should promulgate rules to resolve ambiguities in Section 230. The Supreme Court has confirmed that “the grant in section 201(b) means what it says: The FCC has rulemaking authority to carry out the ‘provisions of this Act.’” Section 230, in turn, was incorporated into the Act – in the same portion of the Act, Title II, as section 201(b) – by the Telecommunications Act of 1996 (1996 Act). The fact that section 230 was enacted after section 201(b) is of no consequence; the Supreme Court repeatedly has held that the Commission’s section 201(b) rulemaking power extends to all subsequently enacted provisions of the Act, specifically identifying those added by the Telecommunications Act of 1996. Thus, the Commission has authority under section 201(b) to initiate a rulemaking to implement section 230. That broad rulemaking authority includes the power to clarify the language of that provision, as requested in the petition.


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