Democrats on the Federal Communications Commission are taking issue with chairman Ajit Pai's announcement last week that the agency would clarify edge providers' Section 230 immunity from civil liability over third-party content, as the White House has asked. Pai also said he has been assured by commission lawyers that it has the authority to do so.
That came during a public meeting Tuesday (Oct. 27) in statements on the FCC's defense of its network-neutrality deregulation order.
Democrats pointed out that the FCC had cited Section 230 of the 1996 Communications Decency Act in defending its elimination of net neutrality regulations and its adoption of an "information services" definition for internet access that squared better with Section 230's grant of immunity that allowed the marketplace more freedom.
Section 230 allows social media sites to host third-party speech without being subject to legal action based on the content that is posted or what they do with it.
Senior Democrat Jessica Rosenworcel pointed out that Section 230 had been in the news lately as "we all grapple with the frustrations of social media."
Some of those include Republican legislators claiming censorship of conservative speech, Democrats claiming promotion of hate speech and the facilitation of election interference, and President Donald Trump's claim that Big Tech is out to un-elect him.
But Rosenworcel said the FCC was trying to have it both ways in upholding its net dereg and pursuing its Section 230 clarification.
“Three years ago, the FCC insisted that Section 230’s references to a competitive, free market for the internet compelled this agency to roll back net neutrality," which she called "bunk" then and now. "But now the agency’s approach to Section 230 is even more confounding. Because following a push from the Administration, the FCC has reversed course. It now insists that this provision of the law compels the agency to regulate certain speech online. In the end, it’s not just the hypocrisy that disappoints, or the intellectual contortions required to make sense of this. It’s the dishonesty. It can’t be that the FCC points to Section 230 to disavow authority over broadband but then uses the same law to insist it can turn around and serve as the President’s speech police."
Fellow Democratic commissioner Geoffrey Starks echoed that sentiment.
"I’m struck by the majority’s inconsistency in affirming the RIF Order even as the Chairman has announced his plan to circulate a rulemaking on Section 230,” Starks said in his meeting statement on the RIF item, from which he dissented. “After all, in the RIF Order the majority pointed to Section 230 as evidence of Congress’s intent that broadband should receive a 'free market approach' as an information service.
“It’s absurdly ironic that some of net neutrality’s strongest opponents now argue that the commission should interpret Section 230 to control the speech of private companies,” Starks added. “These pieces don’t fit together. You can’t pretend to have a light-touch regulatory framework when you’re proposing to regulate online content with a heavy hand. This ideological about-face shows that the imminent Section 230 rulemaking is more about pleasing the President than making good policy."
Pai has explained his decision to proceed with a Section 230 rulemaking this way: “Throughout my tenure at the Federal Communications Commission, I have favored regulatory parity, transparency, and free expression. 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.”
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