FCC Chairman Pai announced today that the FCC would seek public comment on the Administration’s July 27 Petition for Rulemaking on Section 230 of the Communications Decency Act (CDA)—the law that to date has meant that social media companies, ISPs, and other “online intermediaries” have not been subject to liability for their users’ actions. Comments will be due on Wednesday, September 2 and reply comments will be due on Thursday, September 17.
While there is much that is novel about the Petition itself, the FCC’s decision to seek comment on it appears to follow standard operating procedures. At this point, there is no indication of whether the FCC will take more formal steps attempting to adopt any of the rules proposed by the Administration.
Overview of the Petition. The Administration’s Petition asks the FCC to adopt rules to “clarify” the circumstances under which the liability shield of Section 230 applies, which the Petition states is necessary to address “expansive” court rulings on this question. For the purposes of this brief post, the most straightforward description of the Petition’s goal may be found in a White House press release about the Petition: the Administration asks the FCC to find that “[s]ection 230 does not permit social media companies that alter or editorialize users’ speech to escape civil liability.”
Request for Comment follows standard FCC procedures. While the Petition has triggered heated debate between and among FCC Commissioners, technology providers, advocacy organizations, and members of Congress (among others), the FCC’s announcement that it intends to seek comment on the Petition is unsurprising.
The FCC’s own rules state that the agency shall “promptly” issue a Public Notice announcing the filing of the Petition and seeking comment from the public over a 45-day period (with 30 days for initial comments and 15 days for reply comments). While the FCC may decline to seek comment if the Petition is “frivolous” or “plainly do[es] not warrant consideration,” it is highly unusual for the FCC to take this step. In general, if a member of the public or another agency files a Petition for Rulemaking, the FCC gives the public a formal opportunity to comment on the Petition. The FCC today did just that with a standard public notice issued by the agency’s Consumer & Governmental Affairs Bureau.
No indication of what (if anything) comes next. Notably, obtaining comment on the Administration’s Petition in no way obligates the FCC to move forward to adopt rules under Section 230 after close of the comment cycle on September 17. Chairman Pai has been careful to avoid suggesting one way or another whether he believes adoption of the proposed rules or others like them to be an appropriate course of action.
If agency leadership were interested in proceeding to adopt some version of what the Administration proposes, further and lengthy processes would be expected to lie ahead, including the drafting and adoption of a formal Notice of Proposed Rulemaking (NPRM), a further comment cycle, and the drafting and adoption of an Order. For comparison, in the Restoring Internet Freedom (net neutrality) proceeding in 2017—a top priority for the then-incoming Pai administration—the timeline from the drafting of an NPRM to adoption of the new rules and legal framework took approximately ten months. In that case, though, there was greater clarity as to the positions of the various FCC commissioners on the subject and the anticipated action that a majority of the FCC’s commissioners would support. Here, the prospects of further action are less certain.