| The FCC’s General Counsel says “Nothing to see here, move along” in regards to the agency’s authority to conduct a Section 230 rulemaking, the first since its enactment in 1996. |
Recently, Federal Communications Commission (FCC) Ajit Pai asserted that the agency has the authority to proceed with a rulemaking to clarify 47 U.S.C. 230 (Section 230) in response to a petition the National Telecommunications and Information Administration (NTIA) filed at the direction of President Donald Trump. Pai relied on an as yet released interpretation of the Communications Act of 1934 by the FCC General Counsel Thomas M. Johnson Jr.
However, this interpretation has been subsequently released in a rather unusual fashion. Normally, agencies use the vehicle of a draft rule to make the claim it has or does not have certain authority provided by Congress to act. But, not in this case. The FCC has decided to make its case in a blog posting before it has released proposed regulations to define certain terms in Section 230’s liability shield for technology companies. It is almost as if the FCC wants to land the first blow in what will be an epic fight over these provisions.
Stepping back, Johnson’s analysis will almost certainly be tested by litigation if it is the basis for the FCC’s Section 230 rulemaking. And, it also serves to fan the flames of conservative ire with social media platforms who are supposedly biased in their content moderation against right wing content.
Johnson’s argument is basically that 47 U.S.C. 201(b) allows the FCC to “prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this chapter” (i.e. Chapter II of the Communications Act of 1934.) Johnson points to a pair of Supreme Court cases that upheld this assertion that the FCC may, indeed, use this language to undertake a range of rulemakings: AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366 (1999) and City of Arlington v. FCC, 569 U.S. 290 (2013). The specifics of those cases are not so important to Johnson’s claim, so I will not bore you with the details. However, the holdings are very much central to the issue at hand: does the FCC have authority to conduct a rulemaking to construe Section 230 even though that provision does not provide explicit authority?
In the first case, the Supreme Court found that an agency may interpret its own jurisdiction the same way it may interpret ambiguous terms and provisions. Consequently, the FCC was allowed to determine its own jurisdiction. Again, I do not want to get bogged down in the details of the cases. In the second case, the Supreme Court found that in the 1996 rewrite of the Communications Act of 1934, Congress was very clear that the new provisions were being inserted into and incorporated into the existing law. Consequently, “§201(b) explicitly gives the FCC jurisdiction to make rules governing matters to which the 1996 Act applies” (emphasis in the original.) Consequently, the FCC can determine that its authority in Section 201(b) allows it to promulgate regulations to clear up the ambiguities in Section 230, notably what the italicized terms in this excerpt mean:
any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected
And so, Johnson asserted:
Concerning the Commission’s interpretive authority, there is no meaningful distinction between the jurisdictional provision in City of Arlington, the preemption provision in City of Portland, and the immunity shield in Section 230 of the Act. All three provisions appear in the Communications Act, as amended. And like the jurisdictional and preemption provisions, Section 230 contains ambiguous terms: What constitutes an action “voluntarily taken in good faith” to restrict access to material? What constitutes material that can be excluded as “otherwise objectionable”? As in City of Arlington and City of Portland, the Commission has the authority to clarify these ambiguities in Section 230. As the Supreme Court observed in Iowa Utilities Board, this conclusion is nothing more than application of the general principle, derived from the Supreme Court’s landmark decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), that “Congress is well aware that the ambiguities it chooses to produce in a statute will be resolved by the implementing agency.”
Interestingly, Johnson goes out of his way to inform us the late Justice Antonin Scalia wrote the two opinions, which is peculiar. This is perhaps explained by the fact that he was an acknowledged expert and thinker on administrative law, and the issue the FCC is grappling with (i.e. does the FCC have the authority to proceed on a Section 230 rulemaking) is quintessentially administrative in nature. Or, and this seems more likely to me, the shout out to Scalia has more to do with the revered place he has in the conservative pantheon of judges. Scalia may be second to none in terms of reputation and impact of right-wing judges. It seems as if the FCC General Counsel is trying to make the case to the right that the agency has the authority because, well, Scalia said it does. Such a claim would seem to run contrary to avowed but conveniently ignored conservative reverence for light touch regulating and humility in construing government power. Scalia’s name is not likely to serve as an effective imprimatur to liberals and skeptics of the FCC’s rulemaking.
But, the reliance and reverence for Scalia elides a contrary fact. The Supreme Court’s other acknowledged expert on administrative law, and frequent sparring partner of Scalia’s, Justice Stephen Breyer, arrived at different answers on whether the FCC had authority in the two aforementioned cases to promulgate regulations but also more broadly on the grant of authority in 47 U.S.C. 201(b). Breyer was less categorical than Scalia and favored a nuanced, case-by-case approach that required examining the text of the law and Congress’ intentions. Of Section 201(b), Breyer observed in his dissent in one of the cases:
Congress enacted that language in 1938 (i.e. Section 201(b))….The scope of the FCC’s legal power to apply an explicit grant of general authority to make rules implementing the more specific terms of a later enacted statute depends upon what that later enacted statute contemplates.
In more general comments about the Trump Administration’s Section 230 Executive Order (EO), the Electronic Frontier Foundation (EFF) makes the case that the FCC has disavowed jurisdiction over the internet companies by rolling back net neutrality rules, so how could it now have jurisdiction over social media companies? The EFF does not see how the FCC can clear the jurisdictional hurdle:
[T]he FCC has no regulatory authority over the platforms the President wishes the agency to regulate. The FCC is a telecommunications/spectrum regulator and only the communications infrastructure industry (companies such as AT&T, Comcast, Frontier as well as airwaves) are subject to the agency’s regulatory authority. This is the position of both the current, Trump-appointed FCC Chair as well as the courts that have considered the question.
In fact, this is why the issue of net neutrality is legally premised on whether or not broadband companies are telecommunications carriers. While that question, whether broadband providers are telecommunications carriers under the law, is one where we disagree with current FCC leadership, neither this FCC nor any previous one has taken the position that social media companies are telecommunications carriers. So to implement regulations targeting social media companies, the FCC would have to explain how—under what legal authority—it is allowed to issue regulations aimed at social media companies.
The Center for Democracy and Technology (CDT) sued the Trump Administration over the EO and filed comments in opposition to the NTIA’s petition with the FCC. In the latter document, the CDT arrived at a much different conclusion about how Sections 201 and 230 are to be construed:
Section 230 is entirely self-executing. There is nothing in the statute requiring agency implementation: no directions to the FCC, not even a mention of the FCC or any other regulatory agency. Instead, the statute is a clear statement of how courts should treat intermediaries when they face claims based on content provided by users. Beyond its unconstitutional origin, the NTIA’s petition asks the Commission to do something Congress did not authorize: to interpret the meaning of a provision giving explicit instructions to courts. That the NTIA asks the Commission to act on Section 230 by issuing regulations also conflicts with the statute’s statement that the policy of the United States is to preserve the open market of the internet, unfettered by federal regulation. The Commission has cited this provision as potential support for its deregulatory actions regarding net neutrality, as demonstrated in the Restoring Internet Freedom docket. It would be wildly contradictory and inconsistent for the FCC to suggest that it now has authority to issue rules under the very statute it said previously should leave the internet “unfettered” from regulation.
The CDT added:
Section 201 gives the FCC broad power to regulate telecommunications services. This part of the Act is titled “Common carrier regulation,” while the Executive Order is about an entirely different set of companies, the “interactive computer services” who moderate content as intermediaries. Because the FCC’s authority under Section 201 pertains only to common carriers, the FCC’s authority to “implement” Section 230 must then either be limited to Section 230’s impact on common carriers, or dismissed as a misunderstanding of the scope of FCC authority under Section 201.
A right-wing advocacy organization, Tech Freedom, largely agreed with the EFF and CDT:
The Wheeler FCC lost repeatedly in court because Wheeler was all too eager to attempt anything his general counsel told him the agency might get away with. Pai’s legacy could have been finally breaking the FCC of that habit. Pai fought the notion of regulating Internet services as common carriers, yet now he’s embracing NTIA’s startling claims that the FCC can use Section 201(b), the heart of Title II, to regulate even non-common carrier services. When Democrats use this argument for their own ends, Republicans will bitterly regret that Pai embraced this dangerously broad conception of the FCC’s authority.
The overwhelming consensus among commenters was clear: Congress didn’t intend for the FCC to issue rules and any rules the agency might issue will be given no deference by courts. In plowing forward undaunted by concerns about its legal authority or the First Amendment, Pai is committing exactly the kind of administrative overreach that Justices Thomas, Kavanaugh and Gorsuch and other conservative jurists have sought to rein in.
In his blog post, Johnson goes to some length to rebut these arguments and others as to why the FCC lacks the authority to do exactly what it is proposing to do. He brushes aside the seeming contradiction that the FCC says it has no authority to implement net neutrality rules but may be saying it can interpret and clarify Section 230. He pounds away at the point that Section 201(b) provides authority for any rules the FCC considers necessary for Chapter II, and Section 230 is definitely in that chapter. He makes other arguments, too.
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Michael Kans 