• by Wendy Davis  @wendyndavis, August 7, 2020

Online video company Vimeo is asking the Federal Communications Commission to immediately reject the Trump administration's petition for regulations that could affect how social media companies treat users' speech.

The petition “plainly does not warrant consideration by the Commission,” IAC's Vimeo writes in a filing submitted this week to the FCC. “The Commission should therefore dismiss it without consideration or public comment.”

Vimeo's comments came shortly after the FCC officially said it would consider a petition for regulations regarding social media, filed by the National Telecommunications and Information Administration.

That agency, following a directive from President Trump, asked the FCC for rules that would tie web companies' legal protections for users' speech to the companies' content moderation policies.

The NTIA's 57-page petition asks the FCC for new rules “guiding the interpretation of section 230.”

Currently, Section 230 of the Communications Decency Act protects companies like Twitter, YouTube and Facebook from lawsuits based on material posted by users.

The NTIA filed its petition two months after President Donald Trump accused social media companies of engaging in “selective censorship” based on political viewpoints. He made the claim after Twitter alerted users to dubious statements in two of his tweets.

The NTIA argues that social media platforms have "overarching influence and power," due to section 230's protections from liability for users' posts. 

Vimeo offers several reasons why the petition should be dismissed immediately, including that the petition “offends and undermines free speech.”

The company notes that the petition came about as a result of Twitter alerting users to misleading claims by Trump.

“Given this context, any rulemaking proceeding would be the product of retaliation by the highest government official in the country against a private speaker’s unquestionable exercise of free speech,” Vimeo writes.

“While NTIA, an agency belonging to the Commerce Department, could effectively be unable to refuse the administration’s request, the Commission is an independent agency that can and should do so, if nothing else than to make clear that it will not participate in this attempted suppression of free speech.”

Vimeo also says the NTIA lacks authority to bring the petition, and the FCC lacks authority to act on it.

“NTIA’s jurisdiction is over 'telecommunications' matters and information policies having to do with technological developments and scientific research,” Vimeo wrotes. “The agency has stepped far outside that domain in asking the FCC to regulate websites, blogs, and even end users anytime they make editorial decisions to remove or restrict access to content online.”

The company adds that the FCC has jurisdiction over transmissions -- but not over content moderation decisions that occur after a transmission begins or ends.

Vimeo adds that rules regarding content moderation are akin to “telling individuals what they must consider before deciding whether to answer a ringing telephone.”

The FCC's two Democratic commissioners have already called for the agency to dismiss the petition.

“NTIA has not made the case that Congress gave the FCC any role here,” Geoffrey Starks stated last month. “Section 230 is best understood as it has long been understood: as an instruction to courts about when liability should not be imposed.”

Jessica Rosenworcel added: “While social media can be frustrating, turning this agency into the President's speech police is not the answer. If we honor the Constitution, we will reject this petition immediately.”

Republican Commissioner Michael O'Rielly expressed skepticism about Trump's executive order, but hasn't yet publicly committed to rejecting the NTIA's petition.

“Like it or not, the First Amendment’s protections apply to corporate entities, especially when they engage in editorial decision making,” he said last week in a speech delivered to The Media Institute. “I shudder to think of a day in which the Fairness Doctrine could be reincarnated for the Internet, especially at the ironic behest of so-called free speech 'defenders.'”

Trump withdrew O'Rielly's renomination to the FCC several days later. But he is expected to remain with the agency through the end of Congress's current session.