Section 230 as Telecom Law

Today (June 23), I’m excited to be appearing at a session of the Everything You Need to Know About Section 230 in 5 Hours series, hosted by Kate Klonick and the Yale ISP. My session, with Olivier Sylvain and Tejas Narechania, is entitled What 230 Meant for Telecom and Agencies (agenda here).

The focus of the event is the interaction between the FCC and Section 230, in light of President Trump’s recent Executive Order on Section 230 that in part contemplates the FCC issuing regulations that change the scope of Section 230’s application in various ways. Given that focus, I thought it’d be helpful to poke through the FCC’s history of interacting with 230, which is somewhat richer and more complicated than folks might expect.

Maybe a bit surprisingly, the FCC has opined about Section 230 dozens of times over the 20+ years since it was enacted, which might seem to contradict the notion in 230-world that the FCC has no business saying anything about Section 230. To the contrary, 230’s in the Communications Act, and Democratic and Republican FCC Chairmen alike have found repeated occasion to contemplate Section 230.

Nevertheless, a trip through Section 230’s history doesn’t give a lot of support for the Trump Executive Order’s notion that the FCC can interpret the scope of Section 230 to impose a goofy Rube-Goldberg-style ban on political discrimination by platforms. Instead, I see roughly two eras of Section 230 at the FCC:

  1. 230 as Broadband Policy Support. The first era, starting with 230’s enactment at the Clinton-era FCC and lasting through most of the Bush-era FCC, focused primarily on 230’s findings and policy statements as justifications for a wide array of non-regulation of Internet services as well as preemption of state and local Internet regulations, and overarching broadband competition and deployment policies.
  2. 230 as Regulatory and Classificatory Tool. The second era—perhaps the most promising for the Executive Order’s proponents—includes efforts by Bush-era FCC Chairman Kevin Martin to aggressively interpret Section 230 as a basis for the FCC to punish discriminatory behavior by ISPs, while attempting also to uphold his predecessor’s use of 230 as a basis for interpreting the Communications Act’s classificatory scheme to generally avoid regulating ISPs. But the good news for Trump ends there, as neither of the two Obama-era Democratic FCC Chairmen were willing to revisit the Martin’s use of Section 230 as a substantive basis for a non-discrimination mandate—nor was Trump’s hand-picked Republican FCC Chair, who picked up the Bush-era 230-as-deregulatory-classification-support conception but expressly rejected the use of 230 as a source of non-discrimination authority.

What follows is a mostly complete potted history of the FCC’s opinions citing Section 230. (Apologies for the citations to Westlaw, which I’ll replace with public domain cites if anyone needs it—just e-mail me!) This is mainly intended as a quick reference for folks who are relatively well-steeped in 230 and want to see its intersection with telecom law, but others may find it of more general interest too.

230 as Broadband Policy Support

Overall, the leading early use of Section 230 by the FCC in the late 1990s during the Clinton administration—and one that continued through the vast majority of the 2000s through the Bush Administration—was to use 230’s Congressional findings and policy statements as a justification for whatever the FCC might want to do around the Internet. Both under Clinton and Bush, the name of the game was more or less deregulatory regimes for the Internet—and eventually affirmative preemption of state and local regulatory regimes and the broader strokes of the FCC’s broadband competition policy. That multiple FCCs aiming at lightly regulated broadband competition found ample support for their agendas in the front end of Section 230 is no surprise, given these lines:

(a) Findings. The Congress finds the following: …

(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.

(b) Policy

It is the policy of the United States…

(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation

47 U.S.C. § 230(a)-(b) (emphasis added)

These sorts of general findings and policy statements often float into the legal ether with little effect. But the Clinton- and Bush-era FCCs routinely cited the “minimum of government regulation” and “unfettered by Federal or State regulation” language to justify a variety of deregulatory decisions, including:

The FCC began to go further by citing Section 230’s deregulatory aims as a justification to preempt states and localities from engaging in Internet regulation in a variety of contexts, including:

Of course, the FCC awkwardly had to walk some of its 230-as-deregulation thinking back when it came time to apply a variety of regulations to VoIP. Over the years, the FCC had to distinguish its invocation of 230 to support preemption of “traditional common carrier economic regulations” to hold, using an increasingly long boilerplate footnote, that Section 230 did not prevent it from applying E911 rules, customer proprietary network information (CPNI) privacy/competition rules, number portability rules, discontinuance obligations, and universal service contribution obligations on interconnected VoIP services.

Anyway, the Bush-era FCC started to get more comfortable with the use of Section 230 as as support for exercising oversight over competition, and first did so in evaluating the AOL-Time Warner merger by pointing to 230 as a basis for imposing what it saw as pro-competitive conditions on the merger to serve as a bulwark as its overall deregulatory approach to Internet technologies:

The fact that we have chosen not to subject [instant messaging] to traditional regulation does not mean that the merger’s effects on these services escapes our inquiry. In fact, exactly the opposite is true. Because we have jurisdiction over [instant messaging] but, mindful of Congress’s intent, have chosen not to regulate [instant messaging], it is all the more important that we ensure that this merger does not cause any anticompetitive harms with regard to these services. Only in this way can we “preserve the vibrant and competitive free market that presently exists for Internet and other interactive computer services” and ensure that competition, rather than regulation, protects consumers.

Time Warner Inc., 16 F.C.C. Rcd. 6547, 6603 (2001)

The FCC later extended this pro-competitve conception of 230 as an atmospheric justification for its policy frameworks for Internet access in 2002, 2005, 2007, 2009, and 2011 (twice)—albeit in the service of varyingly conservative and progressive broadband deployment policies as the administrations changed.

230 as Regulatory and Classificatory Tool

While the Clinton-era and Bush-era FCCs initially focused on 230 primarily as atmospheric justification for a variety of (mostly) deregulatory broadband competition policies, 230 began to work its way into more substantive telecom law as a regulatory and classificatory tool. This is mostly to blame on a little-noticed-outside-of-telecom-circles part of Section 230 that provides a lot of grist for the Commission’s classificatory mill:

The term “interactive computer service” means any information service… (emphasis added)

47 U.S.C. § 230(f)(2)

The FCC’s two biggest regulatory “buckets” following the Telecommunications Act of 1996 are highly regulated “telecommunications services” and largely unregulated “information services.” A lot of proxy battles over broader (de)regulatory agendas are fought as a result over which bucket a particular service fits in. Accordingly, 230’s invocation of “information services,” combined with the aforementioned policy statements, gave the FCC reason to conclude that Section 230’s definitional application to the e-mail and web-hosting services provided by some cable ISPs supported its 2005 decision to treat cable modem services as unregulated information services and its subsequent decisions to treat broadband-over-powerline and wireless broadband services similarly.

In 2007, the FCC went further, shifting from conceptualizing Section 230 as a non-binding, atmospheric justification to attempting to use Section 230 for the first and only time, as far as I can tell, as a source of authority.

Under Bush-era Chairman Kevin Martin, the FCC sought to intervene in the Comcast/BitTorrent dispute by busting Comcast for messing with BitTorrent traffic in response to a complaint by Free Press and Public Knowledge. The previous Chairman, Michael Powell, had made allusions toward Tim Wu’s conception of “net neutrality“—a set of non-discrimination principles for ISPs—in his famous 2004 “Four Freedoms” speech.

But by 2007, the FCC had a problem: it didn’t have any non-discrimination rules that applied to Comcast’s treatment of BitTorrent, and as alluded above, it had even gone to great lengths in the saga leading up to and following the 2005 Brand X decision at the Supreme Court to avoid imposing non-discrimination obligations on cable and other ISPs by classifying them as unregulated “information services.”

As the FCC cast about for a source of authority to punish Comcast for discriminating, it settled on an unlikely source: Section 230. Though throughout this post I’ve mostly cited to Section 230 as part of Title 47 of the U.S. Code, it’s really Section 230 of the Communications Act of 1934, as amended, and it turns out that the FCC has a bunch of (at least nominal) sources of authority to administer the Act, which I wrote more about here (with links to Harold Feld’s excellent posts on the topic).

In 2007, the FCC tried to use these sources to cobble together what’s called “ancillary authority,” using Section 230 as a baseline, to stop Comcast from discriminating:

[W]e think our ancillary authority to enforce federal policy is quite clear. Peer-to-peer TCP connections provided through Comcast’s broadband Internet access service are undoubtedly a form of “communication by wire,” so the subject matter at issue here clearly falls within the Commission’s general jurisdictional grant under Title I. And though our exercise of authority must be “reasonably ancillary to the effective performance” of the Commission’s responsibility for “something,” first and foremost, the “something” … is right in the Act itself—it is the national Internet policy enshrined in section 230(b) of the Act. When Congress drafted a national Internet policy in 1996, it did not do so on an empty tablet. Instead, Congress inscribed these policies into section 230 of the Communications Act—the very same Act that established this Commission as the federal agency entrusted with “regulating interstate and foreign commerce in communication by wire.” As Congress was no doubt aware, section 1 of the Act requires the Commission to “execute and enforce the provisions of [the] Act.” To carry out this responsibility, section 4(i) empowers the Commission to “issue such orders . . . as may be necessary in the execution of its functions.” Given Section 230’s placement within the Act, we think that the Commission’s ancillary authority to take appropriate action to further the policies set forth in section 230(b) is clear.

Formal Complaint of Free Press & Pub. Knowledge Against Comcast Corp., 23 F.C.C. Rcd. 13,028, 13,035-36 (2008)

In other words, the FCC argued that its broad general authority to implement the Communications Act gave it a basis to enforce Section 230 by imposing non-discrimination obligations on ISPs. You can see shades of this in Trump’s Executive Order, which puts a lot of stock in the notion that the FCC has some kind of implementing authority over Section 230—though the Order attempts to set the FCC on directly interpreting 230(c)(2)(A), one of 230’s core protections, rather than using 230’s policy statements as a baseline for ancillary jurisdiction.

In any case, the DC Circuit was not impressed with the Martin FCC’s conception of Section 230 as a source of ancillary authority to punish Comcast:

[T]he Commission cites neither section 230(b) nor section 1 to shed light on any express statutory delegation of authority found in Title II, III, VI [of the Communications Act], or, for that matter, anywhere else. That is, unlike the way it successfully employed policy statements in [previous precedents], the Commission does not rely on section 230(b) or section 1 to argue that its regulation of an activity over which it concededly has no express statutory authority (here Comcast’s Internet management practices) is necessary to further its regulation of activities over which it does have express statutory authority (here, for example, Comcast’s management of its Title VI cable services).

Comcast Corp. v. FCC, 600 F.3d 642, 654–55 (D.C. Cir. 2010)

On remand, the new Obama-era FCC, helmed by Julius Genachowski, went back to 230 more timidly in a 2010 Notice of Inquiry, returning to the Bush- and Clinton-era conceptualizations of 230 as primarily focused on non-regulation of application-layer platforms but noting that 230 was premised on the need to ensure that ISPs did not discriminate against applications. The subsequent Report and Order went a bit further, noting that 230’s policy statements supported a notion of end-user control—as opposed to ISP control—over applications and content that the net neutrality rules supported, but still stuck to 230-as-policy-statement territory. (The 2010 Order also deferentially observed that 230(c)(2)’s substantive protections would ensure that ISPs couldn’t be held liable for blocking content at a user’s request, such as an opt-in filter for pornography.)

After Genachowski’s rules were again struck down by the DC Circuit (albeit without the 230-related hurt that the court had put on the Martin FCC), the FCC went back to the well under new Chairman Tom Wheeler. Harkening back to the Bush- and Clinton-era conceptions, Wheeler’s FCC followed Genachowski, again citing Section 230’s policy statements as a justification for imposing non-discrimination rules on ISPs in a 2014 Notice of Proposed Rulemaking. In the subsequent 2015 Open Internet Order‘s classification of ISPs as regulated “telecommunications services,” Wheeler took special care to repudiate the Martin-era arguments that 230 required the FCC to classify ISPs as unregulated “information services”—an argument the DC Circuit affirmed in USTA v. FCC—but took care not to go back to the Comcast well, substantively rooting the Commission’s classification and regulatory decisions in other parts of the Communications Act instead of Section 230.

After Trump’s election in 2016, the FCC, now under Ajit Pai, went back to the pre-Comcast era of conceptualizing Section 230 as supporting the treatment of ISPs as unregulated “information services.” But the Pai FCC followed the Democrats in part on 230, demurring on revisiting the Comcast treatment of 230 as a source of regulatory authority and repeatedly rejecting the notion that 230 could provide the basis for non-discrimination rules:

We are not persuaded that section 230 of the Communications Act grants the Commission authority that could provide the basis for conduct rules here. In Comcast, the D.C. Circuit observed that the Commission there “acknowledge[d] that section 230(b)” is a “statement [] of policy that [itself] delegate[s] no regulatory authority.” … [T]he record does not reveal an alternative interpretation that would enable us to rely on it as a grant of regulatory authority for rules here. Instead, we remain persuaded that section 230(b) is hortatory, directing the Commission to adhere to the policies specified in that provision when otherwise exercising our authority.

The Pai FCC went even further, rejecting the notion that 230 could be used for non-discrimination rules against ISPs:

[E]ven assuming arguendo that section 230 could be viewed as a grant of Commission authority, we are not persuaded it could be invoked to impose regulatory obligations on  ISPs. In particular, section 230(b)(2) provides that it is U.S. policy “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” Adopting requirements that would impose federal regulation on broadband Internet access service would be in tension with that policy, and we thus are skeptical such requirements could be justified by section 230 even if it were a grant of authority as relevant here.

Restoring Internet Freedom, 33 FCC Rcd. 311, 480–81 (2018)

What Now?

So what does it all mean? The FCC’s long history of interpreting Section 230 certainly makes clearer why the Trump White House thought it could get away with throwing the FCC into the middle of the current 230 maelstrom. On the other hand, the vast majority of the FCC’s treatment of Section 230 has been in service of non-regulation of Internet platforms. Most awkwardly for the White House, Trump’s handpicked FCC Chairman has been explicitly dismissive of using 230 as a source of authority even over ISPs, much less application-layer platforms like Twitter, or as a source of authority to impose non-discrimination obligations. That is, it’s pretty hard to find much in the FCC’s long record of interpreting Section 230 that gets anywhere close to what the Trump White House is asking it to do—and it’s been smacked down by the courts for trying to use Section 230 in a much more modest and attenuated way.

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