Hill Splits on Party Lines Over NTIA's FCC Petition

Legislators so far are reacting along party lines to NTIA’s petition (see 2007270070) that the FCC help crack down on social media. Even GOP lawmakers who were somewhat supportive cautioned regulators not to run afoul of the First Amendment.

The FCC should dismiss NTIA’s petition asking for rules to clarify Communications Decency Act Section 230, Sen. Tom Udall, D-N.M., said during a Communications Subcommittee hearing Tuesday. Republican members repeatedly questioned government involvement in content moderation decisions, despite voicing political bias claims. Commerce Committee Chairman Roger Wicker, R-Miss., said President Donald Trump’s executive order spurring the petition (see 2007270070) rightly draws attention anti-conservative bias.

In interviews, experts questioned the legality of an FCC rulemaking. The Computer and Communications Industry Association, Internet Association and Free Press oppose the EO.

Udall echoed comments from FCC Commissioner Jessica Rosenworcel, saying the agency shouldn’t take the White House’s bait through the NTIA petition. Udall asked witnesses to speak to the legal grounds on which the commission could take up the EO.

Rosenworcel and fellow Commissioners Mike O’Rielly and Geoffrey Starks publicly expressed skepticism of an FCC rulemaking on Section 230, Santa Clara University School of Law professor Eric Goldman emailed, saying he’s skeptical the FCC will grant the petition. The agency has authority over the totality of the statute, but can’t change underlying definitions nor court precedent, emailed Dunlap Consulting CEO Leslie Dunlap. “Congressional action would be needed to fundamentally change the way the CDA works.”

NTIA “engages in some remarkable contortions to try to give the White House what it asked for in the EO, but the law just doesn't support that interpretation of CDA 230,” emailed Stanford Law School lecturer Daphne Keller. “Perhaps most remarkable is the claim that 230 -- which expressly states a policy of keeping Internet services ‘unfettered by Federal or State regulation’ -- actually authorizes the FCC to define and enforce a whole new notice and appeal system for content moderation.” The FCC, NTIA and the White House didn’t comment Tuesday.

"The FCC will carefully review the petition,” an agency spokesperson emailed the night before.

Commissioner Reaction

Commissioner Brendan Carr hoped for “expeditious” action. It “provides an opportunity to bring much-needed clarity to the statutory text. And it allows us to move forward in a way that will empower speakers to engage in ‘a forum for a true diversity of political discourse,’ as Congress envisioned when it passed Section 230,” he said.

Starks sided with Rosenworcel. He said NTIA didn’t make the case that Congress granted the FCC a role: “Section 230 is best understood as it has long been understood: as an instruction to courts about when liability should not be imposed.”

The petition asks the FCC to “make clear when online platforms can claim section 230 protections if they restrict access to content in a manner not specifically outlined under the Act,” the Commerce Department said. The document seeks clarity on liability protection for content moderation decisions, the limited reach of those protections and platform disclosure requirements for content moderation practices.

IA has concerns the EO seeks “to unfairly punish a few companies for perceived slights, is entirely inconsistent with the goals of Section 230, and contradicts two decades of case law,” interim CEO Jon Berroya said. "In 57 pages, the NTIA petition cannot explain how the FCC has rulemaking authority” here, said CCIA President Matt Schruers.

The petition’s assertion of FCC authority under Section 201 of the Communications Act is “plausible,” emailed International Center for Law & Economics Associate Director Kristian Stout. It’s debatable whether that would hold up in court, but “the way NTIA framed the FCC’s authority to review these issues appears to be arguably reasonable,” he said. Section 201 grants the FCC rulemaking authority, the NTIA petition said: “That broad rulemaking authority includes the power to clarify the language of that provision, as requested in the petition.”

“Like most petitions for rulemaking filed with the FCC, this one is unlikely to be granted and certainly not in the form submitted,” emailed Benton Institute for Broadband & Society Senior Counselor Andrew Schwartzman. “The FCC has no authority to interpret Section 230, and even if it did, the rule that Trump wants is utterly incompatible with the plain language of the statute.”

'Bipartisan' Effort

To ensure more accountability, a review is necessary, Wicker said during the hearing. He questioned whether liability protections are too broad and allow platforms to remove content they disagree with. Section 230 received virtually no opposition or media coverage in the 1990s, said Communications Chairman John Thune, R-S.D. He noted trump and opponent Joe Biden called for the statute’s repeal. Describing content moderation as a “black box,” Thune said his Platform Accountability and Consumer Transparency Act (Pact) (see 2006240059) would provide transparency.

Ranking member Brian Schatz, D-Hawaii, described a “serious, bipartisan” legislative effort with Thune. It’s OK to update laws, and it doesn’t mean they are deeply flawed, Schatz said. Content moderation at scale is incredibly difficult, so having more transparency is a good first step, U.S. Naval Academy assistant professor Jeff Kosseff said in support of the Pact Act.

There’s broad consensus 230 no longer provides sufficient protection for consumers and victims of abuse, said Richard Blumenthal, D-Conn., citing Judiciary Committee’s unanimous passage of the Earn It Act (see 2007020050).

Cowen's Paul Gallant expects the FCC to seek comment on new rules but wait until after the election to reach any decisions. If Trump wins, the analyst expects new rules, but a Biden administration would likely drop the proceeding.

Hearing

Amending the law is a far bigger challenge than writing it, and changes would have far, wide-ranging consequences for many businesses, said Morgan Lewis counsel Chris Cox, who co-authored the law when he in Congress. The FCC would have to do a lot of work to reverse stances dismissing any obligations under law to interpret and apply Section 230, said Fordham University law professor Olivier Sylvain.

Schatz asked IA Deputy General Counsel Elizabeth Banker if there should be a statutory requirement that court-determined illegal content be removed from websites. “Our companies have no interest in hosting known illegal content and most of them would remove it voluntarily,” Banker said. If there were a statutory requirement, IA would caution against allowing plaintiffs to abuse the rules, she added: Not all cases are brought in “good faith.”

Sen. Amy Klobuchar, D-Minn., noted Sylvain’s claim that Section 230 helped perpetuate racism against marginalized groups. One potential solution would be to allow the Federal Election Commission to entertain enforcement consistent with the Pact Act, Sylvain said.

Cory Gardner, R-Colo., cited Cox’s amendment saying the federal government shouldn’t regulate internet speech and effectively make the FCC the Federal Computer Commission. He questioned whether Congress paid enough attention to that. Cox wants the FTC to be more active in holding platforms accountable for their promises, particularly if they advertise themselves as neutral platforms. The law doesn’t require neutrality, but companies must abide by their terms of service based on consumer protection laws, he said.

Sen. Ted Cruz, R-Texas, said it’s a problem that a handful of Silicon Valley billionaires have the power to silence and amplify certain voices, admitting the solution is complicated. The U.S. faces blatant viewpoint discrimination, said Sen. Mike Lee, R-Utah, noting the platforms aren’t government property. But centralization of power allows government to better take control of these levers, Lee said. He’s hopeful the solution can be determined by the industry without government intervention.