FCC Defends Helping Trump, Claims Authority Over Social Media Law

An anonymous reader quotes a report from Ars Technica: 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." Matt Wood, VP of policy and general counsel at media-advocacy group Free Press, told Ars today: "The FCC lawyers' latest sleight-of-hand is a clever distraction, but still not good enough to save the Commission's pending foray into speech codes and Internet regulation. The agency claims that it's not going to make rules, it's merely going to interpret the supposed ambiguities in the language of Section 230 and let courts apply that interpretation. But there's no ambiguity to resolve, nor any reason for courts to follow the FCC's interpretation. And there's no hiding the fact that the FCC's pretense of interpretation without the effect of substantive rules is a ruse and nothing better."

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