Public Knowledge Criticizes FCC Chairman Pai’s Claimed Authority to Rewrite Section 230October 15, 2020
Today, Federal Communications Commission Chairman Ajit Pai announced his intent to interpret Section 230 of the Communications Act through a rulemaking. The FCC’s announcement follows a petition by the National Telecommunications and Information Administration for the agency to move forward on such a rulemaking, as well as the Justice Department’s recent recommendations for amending Section 230.
The following can be attributed to John Bergmayer, Legal Director at Public Knowledge:
“The FCC does not have authority to ‘clarify’ Section 230 — it is not a statute that Congress gave the agency any authority over whatsoever. Additionally, if Chairman Pai’s planned rulemaking is at all informed by the NTIA petition, it is likely to be fatally flawed in other ways, as the NTIA insists on an interpretation of the statute that is contradicted by the plain meaning of the words that Congress enacted, and, in fact, that contradicts itself.
“There is room for a good-faith debate on how to reform Section 230 to ensure that platforms take more responsibility for the content they host, and the harms they magnify. Like the DOJ’s recent proposal, however, the NTIA’s petition to the FCC is not designed to address those harms, but to further the spread of harmful content and to limit the ability of platforms to exercise editorial discretion.
“It is particularly ironic that the Chairman would initiate this rulemaking while simultaneously affirming his ‘Restoring Internet Freedom Order,’ which repealed net neutrality protections for consumers under the theory that the FCC lacks jurisdiction over entities the Chairman now claims the Commission can regulate. Section 230, to be clear, applies not only to major social media platforms, but also any site that hosts user content such as news publications with comment sections, infrastructure providers like broadband providers, and users of these services. While the details of Chairman Pai’s thinking on this issue are unclear, the FCC, an independent agency, should not follow the administration’s direction in this matter.”