Trump’s Executive Order Seeks To Have FCC Regulate Platforms. Here’s Why It Won’t Happen

This is one of a series of blog posts about President Trump’s May 28 Executive Order. Other posts are here and here.

The inaptly named  Executive Order on Preventing Online Censorship seeks to insert the federal government into private Internet speech in several ways. Through Section 2 of the Executive Order (EO), the president has attempted to demand the start of a new administrative rulemaking. Despite the ham-fisted language, such a process can’t come into being. No matter how much someone might wish it.

The EO attempts to enlist the Secretary of Commerce and Attorney General to draft a rulemaking petition with the Federal Communications Commission (FCC) that asks it  that independent agency to interpret 47 U.S.C. § 230 (“Section 230”), a law that underlies much of the architecture for the modern Internet.

Quite simply, this isn’t allowed.

Specifically, the petition will ask the FCC to examine:

“(i) the interaction between subparagraphs (c)(1) and (c)(2) of section 230, in particular to clarify and determine the circumstances under which a provider of an interactive computer service that restricts access to content in a manner not specifically protected by subparagraph (c)(2)(A) may also not be able to claim protection under subparagraph (c)(1), which merely states that a provider shall not be treated as a publisher or speaker for making third-party content available and does not address the provider’s responsibility for its own editorial decisions;

“(ii)  the conditions under which an action restricting access to or availability of material is not “taken in good faith” within the meaning of subparagraph (c)(2)(A) of section 230, particularly whether actions can be “taken in good faith” if they are:

“(A)  deceptive, pretextual, or inconsistent with a provider’s terms of service; or

“(B)  taken after failing to provide adequate notice, reasoned explanation, or a meaningful opportunity to be heard; and

“(iii)  any other proposed regulations that the NTIA concludes may be appropriate to advance the policy described in subsection (a) of this section.”

There are several significant legal obstacles to this happening.

First, the Federal Communications Commission (FCC) has no regulatory authority over the platforms the President wishes the agency to regulate. The FCC is a telecommunications/spectrum regulator and only the communications infrastructure industry (companies such as AT&T, Comcast, Frontier as well as airwaves) are subject to the agency’s regulatory authority. This is the position of both the current, Trump-appointed FCC Chair as well as the  courts that have considered the question.

In fact, this is why the issue of net neutrality is legally premised on whether or not broadband companies are telecommunications carriers. While that question, whether broadband providers are telecommunications carriers under the law, is one where we disagree with current FCC leadership, neither this FCC nor any previous one has taken the position that social media companies are telecommunications carriers. So to implement regulations targeting social media companies, the FCC would have to explain how—under what legal authority—it is allowed to issue regulations aimed at social media companies. We don’t see it doing so.  

But say the FCC ignores this likely fatal flaw and proceeds anyway. The EO triggers a long and slow process which is unlikely to be completed, much less one that results in an enforcement action, this year. That process will involve a Notice of Proposed Rules (NPRM), with the FCC issuing a statement explaining its rationale for regulating these companies, what authorities it has to regulate them, and the possible regulations the FCC intends to produce. The commission must then solicit public comment in response to its statement.

The process also involves public comment periods and agreement by a majority of FCC Commissioners on the regulations they want to issue. Absent a majority, nothing can be issued and the proposed regulations effectively die from inaction. If a majority of FCC Commissioners do agree and move forward, a lawsuit will inevitably follow to test the legal merits of the FCC’s decision, both on whether the government followed the proper procedures in issuing the regulation and whether it has the legal authority to issue rules in the first place.

Needless to say, the EO has initiated a long and uncertain process. Certainly one that will not be completed before the November election, if ever.