FCC General Counsel: Congress Authorized Agency to Interpret CDA S. 230

Congress authorized the FCC to interpret “all provisions” of the Communications Act, including amendments like Section 230, so the agency has the authority to issue a rulemaking clarifying the immunity shield’s scope, General Counsel Tom Johnson blogged Wednesday.

The agency’s authority originates from the “plain meaning of” Communications Act Section 201(b), “which confers on the FCC the power to issue rules necessary to carry out the provisions of the Act,” Johnson wrote. Congress inserted Section 230 into the Communications Act, making clear “that the FCC’s rulemaking authority extended to the provisions of that section,” he wrote. Johnson cited two Supreme Court cases confirming that conclusion: decisions written by the late Justice Antonin Scalia in AT&T v. Iowa Utilities Board in 1999 and City of Arlington v. FCC in 2013.

The high court concluded in Iowa Utilities Board that “Congress is well aware that the ambiguities it chooses to produce in a statute will be resolved by the implementing agency,” Johnson said. This conclusion originates in part from the Supreme Court’s landmark decision in Chevron v. Natural Resources Defense Council, he noted. The high court concluded in Arlington that the FCC “can clarify even those ambiguous statutory provisions within the Act that are arguably directed toward courts -- such as preemption or jurisdictional provisions,” he wrote.

Citing “the unique interest generated by this proceeding,” Johnson said Chairman Ajit Pai asked that the legal analysis be made public “in furtherance of his longstanding commitment to transparency in the rulemaking process.” Section 230 was added with the 1996 Telecom Act, a set of amendments including Title V, the Communications Decency Act, Johnson noted.

The FCC declined comment on when Pai might circulate a promised NPRM on interpreting CDA Section 230. "The FCC has no business being the President's speech police," tweeted Commissioner Jessica Rosenworcel. The other three regular commissioners didn't comment right away or declined to comment.