FCC Chief Lawyer: Congress Authorized Agency to Interpret CDA S. 230

Congress authorized the FCC to interpret “all provisions” of the Communications Act, including amendments, so the agency can issue a rulemaking clarifying the immunity shield’s scope, General Counsel Tom Johnson blogged Wednesday (see 2010210022). 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 CDA, making clear “rulemaking authority extended to the provisions of that section,” he wrote. Johnson cited Supreme Court decisions by the late Justice Antonin Scalia in AT&T v. Iowa Utilities Board in 1999 and 2013's City of Arlington v. FCC.

The high court concluded in IUB 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 partly from Chevron v. Natural Resources Defense Council, he said. 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 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 amendments including Title V, also called CDA, 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,” Commissioner Jessica Rosenworcel tweeted Wednesday. The other three regular commissioners' aides didn't comment or declined to comment. Rosenworcel's office declined to answer questions.

The Center for Democracy and Technology is disappointed a “supposedly” independent agency is engaging in a “political gambit during an election,” said Deputy General Counsel Stan Adams in a statement. It’s “even more troubling” the FCC is asserting it has authority to “tinker with the legal foundation on which the modern web is built, right after disavowing its own authority to regulate broadband providers.” The FCC is seeking to “regulate when providers can treat some content differently than other content ... which is exactly what it said it could not do for broadband providers through net neutrality rules,” he wrote. CDT sued the Trump administration over the president’s social media executive order (see 2007170063).

The Free State Foundation agreed with Johnson’s legal analysis of authority to “construe” 230. The agency has the authority to clarify the statute, but that doesn’t mean a court will agree with the interpretations, “only that courts reviewing the agency’s action will accord the agency’s interpretation substantial deference,” said President Randolph May: “I hope, if the Commission does conduct a proceeding to clarify the meaning of Section 230's provisions, that those participating, regardless of their political persuasion, will not let politics and reflexive preconceptions trump sound legal analysis.”

The FCC lacks authority, CTA Vice President-Policy and Regulatory Affairs Jamie Susskind told a Technology Policy Institute podcast. It was sent in a blast email around the time of Johnson's blog. “I don’t think it’s enough that it was sort of dropped into Title II of the Communications Act, even though, you know, sure it’s there," said Susskind, who didn't answer our questions. "The drafters of this law say, well, we explicitly did not want this to turn into the Federal Computer Commission.”

Susskind is among those who raised free-speech issues about what NTIA seeks from the FCC under President Donald Trump's executive order. CTA "couldn’t disagree more strongly" with NTIA saying its petition doesn't raise First Amendment concerns, Susskind told TPI. "We see major problems with forced neutrality of speech online."

NTIA declined to comment on Johnson's blog or on Susskind's remarks. The comments were released during TPI's annual conference (see 2010210037).