Marketers Prepared to Defend Interests in Any FCC Section 230 Proceeding

The FCC may wait a bit before taking up any NTIA petition for rulemaking to clarify the scope of the tech industry’s liability shield (see 2005290058), observers predicted in interviews this week. The Association of National Advertisers said it’s ready to defend marketers’ interests if threatened. A tech industry representative and academics told us President Donald Trump’s executive order last week sets a dangerous precedent and could compromise independent agencies.

Stakeholders shouldn’t be “asleep at the wheel,” Arent Fox's Alan Fishel said. “There’s going to be a petition for rulemaking. ... This is not a time to be sitting in the audience and watching. It’s definitely a time to be on the field and engaged.”

Boston College Law School professor Daniel Lyons doesn’t expect the FCC to take it up because the EO cuts against what the current agency has said about net neutrality and the fairness doctrine -- the idea that private entities generally have a First Amendment right of editorial control, which would be compromised if the government gets involved. FCC Chairman Ajit Pai says the agency will “carefully review any petition for rulemaking filed by the Department of Commerce." Commissioner Brendan Carr welcomed the EO, looking forward to NTIA's petition (see 2005290058). Commissioner Mike O'Rielly defended the president (see 2005280060). The agency didn’t comment Thursday.

ANA is monitoring whether the EO could affect brands, but there’s too much uncertainty now to consider lawsuits or other action, General Counsel Doug Wood emailed: “That does not diminish our concerns. We will speak and defend the rights of marketers if they are threatened.” If agencies seek comment on Communications Decency Act Section 230 authority, ANA will speak, he said.

Petitions for rulemaking are filed all the time, but this is a unique case given the president’s involvement, said Arent Fox's Adam Bowser. There’s no statutory mandate for the FCC to start a proceeding, but groups should make it a point to have their voices heard at the commission when the petition is filed, he said.

Lyons noted the FCC isn’t under legal obligation to respond to a petition. He has been counsel on petitions that have “sat for years.” NTIA, an executive-level agency and subset of the Commerce Department, might be able to seek mandamus in court but only after several years, he said. The FCC like many individual agencies has a lot of leeway in what it decides to put on its docket, he continued: “So if it chooses not to pick this up, there’s very little the administration, the White House can do to force it to do so.”

Historically, the FCC and FTC haven’t injected themselves into questions of political speech, said NetChoice Vice President Carl Szabo. The only reason the FCC would take up the petition is if the majority decides it’s warranted and that would mean diving into a political minefield, Szabo said. He believes commissioners will be unwilling to politically polarize the agency, but if they act on a rulemaking, they will lose recognition of independence and be seen as more of an arm of the administration, Szabo said.

Conservatives rightly criticized the Obama administration for similar pressure during net neutrality, said Competitive Enterprise Institute research fellow Patrick Hedger. There’s a huge risk of hypocrisy with the use of regulatory power here, he argued. He raised concerns about putting more on NTIA’s plate when FCC-NTIA relations are strained. Agencies like DOD and the Transportation Department have been going around NTIA on spectrum issues, he said, warning of mission creep.