TR Daily FCC’s GC Defends FCC’s Authority to Interpret CDA Section 230
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Wednesday, October 21, 2020

FCC’s GC Defends FCC’s Authority to Interpret CDA Section 230

The FCC’s legal authority to interpret section 230 of the 1996 Communications Decency Act "is straightforward" and encompassed by the congressional grant of power to the Commission "to interpret all provisions of the Communications Act of 1934," including amendments to the Communications Act such as section 230 of the CDA, according to FCC General Counsel Thomas Johnson Jr.

Section 230 provides protections for social media platforms and other Internet intermediaries from liability for third-party content and for attempting to policy such content. Acting in response to an executive order issued by President Trump in the spring (TR Daily, May 28), the National Telecommunications and Information Administration filed a petition with the FCC in the summer asking the FCC to clarify the circumstances under which Internet intermediaries are entitled to the liability protections of section 230 and for clarification of when a provider is considered to be acting in "good faith" (TR Daily, July 27).

Many parties have argued that the FCC lacks authority to interpret section 230, which did not require an FCC rulemaking to implement it or other FCC actions to enforce it and which applies to entities operating on the Internet that the FCC has generally not regulated.

FCC Chairman Ajit Pai recently announced that he intended to "move forward with a rulemaking" to clarify section 230 (TR Daily, Oct. 15).

In a blog post released today, Mr. Johnson said, "The Chairman’s decision was consistent with my advice that the FCC has the legal authority to interpret Section 230. Due to the unique interest generated by this proceeding, Chairman Pai has now asked me to make my analysis public, in furtherance of his longstanding commitment to transparency in the rulemaking process."

The FCC’s authority to interpret all provisions of the Communications Act "flows from the plain meaning of Section 201(b) of the Communications Act of 1934, which confers on the FCC the power to issue rules necessary to carry out the provisions of the Act. By expressly directing that Section 230 be placed into the Communications Act, Congress made clear that the FCC’s rulemaking authority extended to the provisions of that section," Mr. Johnson continued.

"Two seminal U.S. Supreme Court cases authored by the late Justice Antonin Scalia—AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366 (1999) and City of Arlington v. FCC, 569 U.S. 290 (2013)—confirm this conclusion. Based on this authority, the Commission can feel confident proceeding with a rulemaking to clarify the scope of the Section 230 immunity shield," he added.

In Iowa, the court held that "‘the clear fact that the 1996 Act was adopted, not as a freestanding enactment, but as an amendment to, and hence part of, [the 1934] Act’ shows that Congress intended the Commission to have rulemaking authority over all its provisions. Likewise, in the later City of Arlington case, the Court confirmed that the Commission’s rulemaking authority ‘[o]f course . . . extends to the subsequently added portions of the Act.’ From these authorities, a simple conclusion follows: Because Section 230 is among the ‘subsequently added portions of the Act,’ it is subject to the FCC’s Section 201(b) rulemaking authority," Mr. Johnson said.

The City of Arlington case involved interpretation of "a provision that preserved state and local authority over the placement of things like cell towers unless those localities failed to act within a ‘reasonable period of time.’ The Supreme Court rejected an argument that the agency should receive no deference for its interpretation because the provision was ‘jurisdictional’ and thus contemplated no regulatory action by the Commission. The Commission deserved deference, the Court explained, because ‘Congress has unambiguously vested the FCC with general authority to administer the Communications Act through rulemaking and adjudication, and the agency interpretation at issue was promulgated in the exercise of that authority,’" Mr. Johnson said.

"Likewise, in City of Portland v. FCC, 969 F.3d 1020 (9th Cir. 2020), the U.S. Court of Appeals for the Ninth Circuit earlier this year largely affirmed two FCC orders clarifying the scope of a preemption provision in the Communications Act that provides that states and localities may not take actions that ‘have the effect of prohibiting’ telecommunications service. Citing City of Arlington, the court said that ‘[w]here terms of the Telecommunications Act are ambiguous, we defer to the FCC’s reasonable interpretations,’" he added.

"Concerning the Commission’s interpretive authority, there is no meaningful distinction between the jurisdictional provision in City of Arlington, the preemption provision in City of Portland, and the immunity shield in Section 230 of the Act," he said.

Some commenters "attempt to read limitations into the text of Section 201(b) that could exclude Section 230," Mr. Johnson said. "They note that most of Section 201(b) deals with rules that apply to common carriers and argue that Congress did not intend to treat social media companies and other covered websites as common carriers. But the general grant of rulemaking authority at the end of Section 201(b) contains no reference to common carriers; it simply empowers the Commission to make rules that are ‘necessary in the public interest to carry out the provisions of this Act,’ without qualification."

Mr. Johnson also rejected arguments based on legislative history, saying that "neither legislative history nor abstract purposes can trump the plain text of a statute, and as the Supreme Court has twice held, Section 201(b) ‘means what it says’—the FCC has the authority to interpret each and every provision of the Communications Act, as amended."

He also said that none of the observations based on legislative history and statements of purpose "bear on the central question here: whether the Commission has authority to interpret ambiguous terms in Section 230(c), which contains the immunity shield."

He added, "At the end of the day, the scope of the Section 230 immunity shield must be interpreted by someone. And as the Supreme Court observed in both Iowa Utilities Board and City of Arlington, the only question is whether the FCC or a federal court will do the interpreting. Under current law, the answer is clear: The FCC receives deference for reasonable interpretations of all ambiguous terms in the Communications Act."

He concluded, "Ultimately, the five Commissioners of the FCC must decide whether this legal framework should be adopted in any future rulemaking. But in my own judgment, the FCC’s legal authority to interpret Section 230 is straightforward: Congress gave the Commission power to interpret all provisions of the Communications Act of 1934—including amendments—and Section 230 is an amendment to the Communications Act. The Commission therefore may proceed with a rulemaking to clarify the scope of the Section 230(c) immunity shield." —Lynn Stanton, [email protected]

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