Pai Says FCC Will ‘Clarify’ Section 230. Does FCC Have the Authority?

WASHINGTON, D.C. – In a statement released last week, Federal Communications Commission Chairman Ajit Pai said the FCC would “move forward with a rulemaking to clarify” the meaning of Section 230 of the Communications Decency Act, citing bipartisan concern over how the law’s safe harbor provisions have been interpreted.

“Members of all three branches of the federal government have expressed serious concerns about the prevailing interpretation of the immunity set forth in Section 230 of the Communications Act,” Pai said in the statement. “There is bipartisan support in Congress to reform the law. The U.S. Department of Commerce has petitioned the Commission to ‘clarify ambiguities in section 230.’ And earlier this week, U.S. Supreme Court Justice Clarence Thomas pointed out that courts have relied upon ‘policy and purpose arguments to grant sweeping protections to Internet platforms’ that appear to go far beyond the actual text of the provision.”

Pai continued that as Congress continues to consider various changes to the law, “the question remains: What does Section 230 currently mean?”

“Many advance an overly broad interpretation that in some cases shields social media companies from consumer protection laws in a way that has no basis in the text of Section 230,” Pai added. “The Commission’s General Counsel has informed me that the FCC has the legal authority to interpret Section 230. Consistent with this advice, I intend to move forward with a rulemaking to clarify its meaning.”

“Social media companies have a First Amendment right to free speech. But they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters,” Pai concluded.

While Pai’s statement gives no hint what sort of interpretation of Section 230 the FCC might eventually offer, rendering analysis and speculation difficult, attorney Larry Walters told YNOT there’s a more fundamental question at hand: Does the FCC have the authority to regulate the internet in the first place?

“It will be interesting to see the legal authority cited by the FCC for the proposition that it has jurisdiction to regulate the internet,” Walters said. “Doing so would be inconsistent with the agency’s prior position. Currently, enforcement authority lies with the FTC. Ajit Pai has not provided any such legal basis yet, and the President’s Executive Order cannot confer this authority.”

With so many different bills and proposals already aimed at Section 230, it’s also possible that before the FCC can begin its rulemaking process in earnest, the statute will have been amended by Congress in some fashion, potentially mooting or restarting from scratch the FCC’s entire process. And as Walters noted (and courts have held), it would seem to the extent any regulatory body should be weighing in on the proper interpretation of Section 230, that body should be the FTC.

In other words, it’s very difficult to speculate what Pai’s announcement might mean for the future of Section 230, or its implications for site owners, content creators and the broader community of social media users who publish and share content on social media platforms every day.

As someone who believes maintaining the status quo on Section 230 is probably the best policy the government can adopt, Pai’s statement is mostly of concern to me because of the first point it highlights: Over in Congress, the need for Section 230 ‘reform’ is one of the few things on which both parties can agree.