FCC Chairman Pai announced today that the FCC will move forward with a rulemaking to clarify the meaning of Section 230 of the Communications Decency Act (CDA). To date, Section 230 generally has been interpreted to mean that social media companies, ISPs, and other “online intermediaries” have not been subject to liability for their users’ actions.
On July 27, the Trump Administration—acting through the National Telecommunications and Information Administration—submitted a Petition for Rulemaking on Section 230, and Chairman Pai announced on August 3 that the FCC would seek public comment on the petition. That petition asked the FCC to adopt rules to “clarify” the circumstances under which the liability shield of Section 230 applies. Citing the FCC General Counsel’s reported position that the Commission has the legal authority to interpret Section 230, Chairman Pai today stated that a forthcoming agency rulemaking will strive to “clarify its meaning.”
Ahead of the rulemaking, there is no indication whether—and to what extent—the FCC plans to adopt the rules proposed by the Administration. However, the Chairman noted in today’s announcement that “[m]any advance an overly broad interpretation that in some cases shields social media companies from consumer protection laws in a way that has no basis in the text of Section 230.” This statement aligns with language in the Administration’s petition that criticizes court interpretations of Section 230 that have established “overly broad and expansive” protections.