TR Daily Pai Won’t Try to Move Section 230 NPRM Before Departure
Friday, January 8, 2021

Pai Won’t Try to Move Section 230 NPRM Before Departure

In an interview recorded yesterday for C-SPAN’s "The Communicators" series, scheduled to air this weekend, FCC Chairman Ajit Pai said he no longer intends to "move forward with a notice of proposed rulemaking" to clarify section 230 of the Communications Decency Act, which provides protections for social media platforms and other Internet intermediaries for third-party content and for attempting to policy such content.

Chairman Pai explained that his reason, "in part," was that, "given the results of the elections, there [is] simply not sufficient time left to complete the administrative steps necessary in order to resolve that rulemaking. And so given that reality, I do not believe it is appropriate to move forward."

President Trump issued an executive order last spring that, among other things, directed the National Telecommunications and Information Administration, a unit of the Department of Commerce that advises the president on telecom and information policy issues, to seek clarification from the FCC of section 230 (TR Daily, May 28, 2020). In the summer, NTIA filed a petition with the FCC seeking clarification of the circumstances under which Internet intermediaries are entitled to the liability protections and for clarification of when a provider is considered to be acting in "good faith" (TR Daily, July 27, 2020).

In October, before the presidential election, Chairman Pai announced that he intended to "move forward with a rulemaking" on section 230, noting that the agency’s general counsel, Thomas Johnson Jr., had informed him that the FCC has the legal authority to interpret section 230 (TR Daily, Oct. 15, 2020). Subsequently, the Chairman declined to say whether the item he intended to bring forward would be an order or a notice of proposed rulemaking, although his remarks for "The Communicators" indicated he was planning for an NPRM.

Chairman Pai has also announced his intention to resign as of Inauguration Day, creating an agency vacancy for incoming President Joe Biden to fill.

Asked whether he felt pressured by the administration regarding the section 230 petition, Chairman Pai said, "I did not. One of the things that I have made a point of doing over the past four years is maintaining the agency’s independence."

Asked what he would like to see done about section 230, which has been criticized from the right for allowing social media platforms to discriminate against conservative content and from the left for not requiring stronger policing of hate speech and misinformation about elections and public issues, Chairman Pai said, "There is now a bipartisan consensus among elected officials that the law should be changed. … Now obviously in terms of changing the law, that’s a decision for lawmakers to consider. But I do think there are certain bipartisan consensus areas forming regarding how it should be revised. It’s a very complicated issue, one that I think Congress will have to study and deliberate on very carefully. We’d have to think about it more carefully in terms of the immunity provision, for example, but I think those are the kinds of things that I think the next administration and the next Congress will think about very carefully."

Asked about the violence on Capitol Hill on Wednesday as Trump supporters broke into the Capitol, forcing lawmakers to take shelter and suspend their electoral vote count, Chairman Pai said, "The scenes we saw yesterday were outrageous and extremely disappointing to those of us who cherish American democracy."

He added, "I think it was a terrible mistake to suggest that the results of the election and particularly the process that culminated yesterday in the Senate and the House could in any way be changed. That was a terrible mistake and one that I do not believe should have been indulged."

Asked whether he agreed with the decision of Facebook, Inc., Twitter, Inc., and other social media platforms to block the president’s access over posts they said were inciting violence, Chairman Pai said that, "given the circumstances that we saw yesterday," such as "armed guards defending the Senate chamber" and "people wielding Confederate flags in the seat of the United States government," he was "not going to second-guess those decisions" by social media platforms.

Asked what he plans to do after leaving the FCC, Chairman Pai said, "I don’t have any plans at this time. … Whatever the next adventure, I’m very confident that it will be something that is intellectually rewarding, and it will help deliver results. I’ve joked of course that I would be happy to replace Judge Judy, or if the Kansas City Chiefs in their upcoming playoff run need a washed-up, slow 47-year-old to be a slot receiver, I’m that guy. But barring those extraneous possibilities presenting themselves, I’ll just evaluate all the options and make a determination when the time comes."

Asked whether he expects the incoming Democratic-led FCC to return to the issue of net neutrality, Chairman Pai said, "That’s a determination for the next FCC to make. Obviously I believe that our decision [in 2017 to classify broadband Internet access service as an information service and roll back most of the agency’s net neutrality rules] was the right one based on the results we’ve gotten in terms of capital investment, for example. … The Internet continues to be free and open. We’ve seen millions more Americans get access to the Internet for the first time."

He added, "I do think the time has come for Congress, as I said back in 2014 before I took this position, to put on the printed page those open Internet protections that all of us can agree on, no blocking, no throttling, no anticompetitive paid prioritization, transparency. These are very basic principles that we can all agree on, but again, it’s up to elected officials in the next Congress and the next administration to make that determination."

He also said that he hoped that "as they engage in that debate, we will not see a reprise of what we saw in 2017 and 2018 [in terms of threats against him and his family]. No American official should ever have to go through any of that, and I would not wish that on any successor."

Meanwhile, during a separate event livestreamed today that was hosted by the Free State Foundation, Chairman Pai outlined his "theory for good governance," built around three pillars: transparency, which he said both improves policy by improving accountability and increases public trust; an embrace of economics and data analysis; and "maximizing the effectiveness of the FCC’s greatest asset," its staff.

As examples of implementing those pillars, he cited his decisions to begin releasing draft of items scheduled for meeting votes to the public three weeks ahead of the meetings, to establish the Office of Economics and Analytics, and to "empower our career staff" by designating career staffers, rather than outsiders selected for political reasons, to head the agency’s various bureaus.

Asked about the new headquarters in northeast Washington that the FCC has moved to during the COVID-19 pandemic, while agency employees for the most part have been working from home, Chairman Pai said that when work from the office resumes broadly, employees and visitors are "going to find a space that is simply fantastic" in a "beautiful" building with an open layout that will encourage collaborative work.

One change from the agency’s last two headquarters in the southwest and northwest quadrants of the city will be that the location of the Commissioners’ offices will no longer be on "the eighth floor."

"It’s the 10th floor—I’ll have to remember if it’s marked the 10th floor," he said, adding that "there’s a tenant on the 11th floor that’s not the FCC." —Lynn Stanton, [email protected]

MainStory: FederalNews FCC InternetIoT NetNeutrality

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