Can the FCC Regulate Facebook?

At the urging of FCC Chairman Ajit Pai, the FCC General Counsel Tom Johnson announced in a recent blog that he believes that the FCC has the authority to redefine the immunity shield provided by Section 230 of the FCC’s rules that comes from the Communications Decency Act from 1996.

Section 230 of the FCC rules is one of the clearest and simplest rules in the FCC code:  “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider“.

In non-legalese, this means that a web companies is not liable for third-party content posted on its platform. It is this rule that enables public comments on the web. All social media consists of third-party content. Sites like Yelp and Amazon thrive because of public post reviews of restaurants and products. Third-party comments are in a lot more places on the web such as the comment section of your local newspaper, or even here on my blog.

Section 230 is essential if we are going to give the public a voice on the web. Without Section 230 protections, Facebook could be sued by somebody who doesn’t like specific content posted on the platform. That’s dangerous because there is somebody who hates every possible political position.  If Facebook can be sued for content posted by its billions of users, then the platform will have to quickly fold – there is no viable business model that can sustain the defense of huge volumes of lawsuits.

Section 230 was created when web platforms started to allow comments from the general public. The biggest early legal challenge to web content came in 1995 when Wall Street firm Stratton Oakmont sued Prodigy over a posting on the platform by a user that accused the president of Stratton Oakmont of fraud. Stratton Oakmont won the case when the New York Supreme Court ruled that Prodigy was a publisher because the platform exercised some editorial control by moderating content and because Prodigy had a clearly stated set of rules about what was allowable content on the Prodigy platform. As might be imagined, this court case had a chilling impact on the burgeoning web industry, and fledgling web platforms worried about getting sued over content posted by the public. This prompted Representatives Rob Wyden and Chris Cox to sponsor the bill that became the current Section 230 protections.

Tom Johnson believes the FCC has the authority to interpret Section 230 due to 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. He says that when Congress instructed that Section 230 rules be added to FCC code, that implicitly means the FCC has the authority to interpret the rules.

But then Mr. Johnson does an interesting tap dance. He distinguishes between interpreting the Section 230 rules and regulating companies that are protected by these rules. If the FCC ever acts to somehow modify Section 230, the legal arguments will concentrate on this nuance.

The FCC has basically been authorized by Congress to regulate common carriers of telecommunications services as well as a few other responsibilities specifically assigned to the agency.

There is no possible way that the FCC could ever claim that companies like Facebook or Google are common carriers. If they can’t make that argument, then the agency likely has no authority to impose any obligations on these companies, even should it have the authority to ‘interpret’ Section 230. Any such interpretation would be meaningless if the FCC has no authority to impose such interpretations on the companies that rely on Section 230 protections.

What is ironic about this effort by the FCC is that the current FCC spent a great deal of effort to declassify ISPs from being common carriers. The agency has gone as far as possible to wipe its hands of any responsibility for regulating broadband provided by companies like AT&T and Comcast. It will require an amazing set of verbal gymnastics to somehow claim the ability to extend FCC authority to companies like Facebook and Twitter, which clearly have zero characteristics of being a common carrier while at the same time claiming that ISPs are not common carriers.

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