The Federal Communications Commission’s top lawyer today explained the FCC’s theory of why it can grant President Donald Trump’s request for a new interpretation of a law that provides legal protection to social media platforms like Twitter and Facebook.
Critics of FCC Chairman Ajit Pai’s plan from both the left and right say the FCC has no authority to reinterpret Section 230 of the Communications Decency Act, which gives legal immunity to online platforms that block or modify content posted by users. FCC General Counsel Thomas Johnson said those critics are wrong in a blog post published on the FCC website today.
Johnson noted that the Communications Decency Act was passed by Congress as part of the Telecommunications Act of 1996, which was an update to the Communications Act of 1934 that established the FCC and provided it with regulatory authority. Johnson also pointed to Section 201(b) of the Communications Act, which gave the FCC power to “prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this Act.”
Johnson then explained why he believes this means the FCC can reinterpret Section 230:
The Supreme Court has twice considered whether the FCC’s general rulemaking authority under Section 201(b), adopted in 1938, extends to the 1996 amendments to the Act. Both times, the Court held that it does. Writing for the Court in Iowa Utilities Board, and employing his trademark textualist method, Justice Scalia wrote that this provision “means what it says: The FCC has rulemaking authority to carry out the ‘provisions of [the 1934] Act.'” The Court explained 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.
FCC still wrong, critics say
One problem with citing Section 201—which is part of the Communication Act’s well-known Title II—is that the section applies to common carriers. The Pai FCC in 2017 justified its repeal of net neutrality rules by claiming that the commission has no authority to regulate broadband providers as common carriers under Title II—even though courts had specifically ruled the FCC does have such authority. Now, the FCC is citing Title II to claim some authority over social media platforms, which have not been classified as common carriers.
But John Bergmayer, legal director at consumer-advocacy group Public Knowledge, disagrees. Today he told Ars, “201 is concerned with common carriers, not information services. Of course the 1996 Amendments are part of the [Communications] Act. But 201(a) and (b) are both directly addressed to the duties of common carriers.”
Johnson argued in his blog post that “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.”
However, common-carrier regulation is the topic of all of the text in the single-paragraph Section 201(b) leading up to the statement cited by Johnson. Here’s what the statute looks like on the FCC website:
Still, Johnson provided another citation to back the FCC’s case on the point. The US Court of Appeals for the 6th Circuit in 2008 “held that Section 201(b) gave the Commission authority to interpret ambiguous provisions in the Cable Television Consumer Protection and Competition Act of 1992,” Johnson wrote. “Notably, that Act by its terms applies to cable operators, not common carriers. The Court reasoned… that it was sufficient that the 1992 law amended the Communications Act and incorporated the relevant provisions therein. The same reasoning applies to Section 230.”