GOP State AGs Ask FCC to Adopt NTIA CDA Section 230 Petition

Adopt NTIA’s petition for rulemaking on Communications Decency Act Section 230, Republican state attorneys general commented to the FCC posted Thursday in RM-11862 (see 2009020064). Tech, telecom and consumer groups again largely said the FCC shouldn't consider the petition, saying the FCC and NTIA are exceeding their jurisdiction and expertise. The AG group was formed by Texas’ Ken Paxton, Indiana’s Curtis Hill, Louisiana’s Jeff Landy and Missouri’s Eric Schmitt. The petition clarifies 230's scope and empowers states without undermining protections for moderation of “traditionally regulated content,” they wrote: It promotes freedom of speech by “ensuring competition through transparency.”

Granting the request would exceed FCC authority, the Computer & Communications Industry Association said: The FCC “has no role in regulating speech on the Internet, and NTIA’s proposed narrowing of the phrase ‘otherwise objectionable’ would lead to the proliferation of objectionable content online.” CCIA noted Chairman Ajit Pai spoke against allowing “intrusive government regulations” when dissenting against net neutrality rules 2015. It would be inconsistent to now argue the commission “possesses authority to enact retaliatory content policy for digital services whose competitors are a few clicks away,” CCIA said.

The FCC has a tradition “of not regulating online content,” said Incompas: The net neutrality order shows the preference for “light-touch regulation of internet information services,” but the petition “contemplates that the FCC would regulate the online services being delivered via” broadband internet access service. Section 230 protects content moderation by individual users on platforms like Reddit, the company commented: The petition might enable frivolous lawsuits against protected moderation efforts.

Efforts to clarify or update Section 230 are warranted, but that’s Congress’ role, the Information Technology and Innovation Foundation said. The FCC doesn’t have statutory authority here, ITIF said in support of remarks by Commissioner Geoffrey Starks: “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 would reduce, not promote, viewpoint diversity online, Free Press commented: The same FCC that “wrongly declared itself unable to adopt conduct rules for broadband providers under far more certain authority” can’t create conduct rules for the internet “now on the basis of Section 230 authority it disavowed.” Handling regulations for content moderation and liability are outside NTIA’s expertise, said Consumer Reports: The agency’s mission “centers upon the systems that power technology, not the creative cargo that travels on top of it.” President Donald Trump is attempting to “unconstitutionally silence his critics, and the FCC should take not part,” said Access Now.

NTIA proposes a new, “more arbitrary Fairness Doctrine” for the internet, something the First Amendment bars, said TechFreedom: “The constitutional basis for regulating broadcast media” doesn’t apply to internet media. The petition’s claim 230 “inhibits competition” is “absurd,” said Engine: NTIA didn’t offer any evidence that exposing startups to “unlimited legal exposure” would “enhance startup formation and competition.”

Antitrust law and regulation of the digital communications sector need a “serious reboot,” but the FCC shouldn’t be responsible for it, Consumer Federation of America commented. CFA cited “decades of lax enforcement” that’s “failed to promote competition and protect consumers.” It recommended a comprehensive review and a new agency to “address the many harms” to consumers caused by “dominant players in the digital communications sector.”

Two academics backed a “modest proposal to pare back Section 230 immunity.” The FCC could issue an order clarifying immunity “only applies when online service providers are carrying third-party content, but does not apply when online service providers are carrying their content,” said New York University associate professor Robert Seamans and Georgetown University adjunct professor Hal Singer. Section 230’s original purpose isn’t being served, and platforms are exploiting it to block regulation, they wrote.