Vimeo Says FCC Doesn’t Have Authority to Act on NTIA Petition

The FCC lacks authority to act on NTIA’s petition for a rulemaking on Section 230 of the Communications Decency Act (see 2008030025), Vimeo said in comments to the agency in RM-11862. The FCC received 177 comments by Wednesday afternoon, almost all from individuals. The Computer & Communications Industry Association, NetChoice and Engine told us they plan to comment in opposition to NTIA’s petition.

Citing Twitter’s labeling of President Donald Trump’s tweets as the catalyst for the petition (see 2005270016), Vimeo said a rulemaking would be “the product of retaliation by the highest government official in the country against a private speaker’s unquestionable exercise of free Speech. ... NTIA’s petition plainly does not warrant consideration by the Commission.”

Based on conversations with tech companies and trade associations, others could be reluctant to comment for two reasons, said Cooley’s Robert McDowell: “Few industry players think that the ideas laid out in the petition will actually become the law of the land, and the second is that they don’t want to raise their head out of their foxholes out of fear of being dragged into this high-profile battle that may end up going nowhere.”

The Information Technology Industry Council and ACT|The App Association don’t plan to comment on the proceeding, spokespeople said. The Internet Association and the Information Technology and Innovation Foundation didn’t comment. McDowell expects think tanks, academics and a few other nonprofits to be “more active in this proceeding.”

“I don't know if that's the case,” Computer & Communications Industry Association President Matt Schruers said in a statement. “CCIA is preparing to respond, as will others in industry that I have spoken to. ... If there is political risk in saying the FCC shouldn't be the Ministry of Truth, it's time to reexamine our politics.”

Engine is “definitely planning” to file, said Executive Director Evan Engstrom: “We deeply disagree with NTIA's proposals, and while we think that both the petition and rulemaking are not legally viable, we think it's important to point out how NTIA's desired interpretation of 230 would severely harm startup competition.”

NetChoice also plans to file, a spokesperson said. Many industry associations are going to file, said TechFreedom Civil Liberties Director Ashkhen Kazaryan. TechFreedom, a nonpartisan think tank, will file comments, she said.

Social media companies should be working to put this thing to an end right now with comments, said Arent Fox's Alan Fishel. The FCC appears to be on an accelerated timeline to potentially get a decision before the election, he said, which is “aggressive” for a proposal with such “extraordinary breadth.” If the FCC makes a decision anywhere close to what NTIA is requesting, the number of groups ready to appeal would be staggering, he said. The proposal's impact would go far beyond social media, said Arent Fox's Adam Bowser. He and Fishel agreed confirming a replacement for FCC Commissioner Michael O’Rielly by October is unlikely, though possible (see 2008100022 and 2008060062).

McDowell cast doubt on the FCC issuing an NPRM for a vote before November's election: “It takes longer than people realize for the commission to write a notice of proposed rulemaking in most instances. ... And then there’s the very real doubt that it could attract the three votes needed to proceed.”

The FCC doesn’t have the authority to write these rules, and the record will reflect that in the comments, said Competitive Enterprise Institute research fellow Patrick Hedger. CEI plans to file. From a regulatory standpoint, it’s poor form to invite the FCC into an area where it clearly has no jurisdiction, and Section 230 is a logical system for allowing the internet to function, he said. Even well-intended updates to Section 230, like 2018’s anti-sex trafficking legislation, have had severe, unintended consequences on the internet, he added.

It’s unusual for NTIA to be involved on a topic like this because the agency traditionally manages spectrum and other broadband issues for federal agencies, said Technology Policy Institute Research Fellow Sarah Oh. This is Congress’ debate to handle, not the FCC’s, she said.

McDowell noted the legal challenges even if the FCC moves forward with rules: “Many members of Congress on both sides of the aisle have expressed their views that this issue should be decided by Congress and not the FCC.”