• by Wendy Davis , Staff Writer @wendyndavis, October 22, 2020

When Ajit Pai took over as chairman of the Federal Communications Commission, he promised to “fire up the weed whacker” and dismantle the previous administration's regulations.

He promptly followed through by shepherding the repeal of the Obama-era net neutrality rules, which prohibited broadband carriers from blocking or throttling traffic, and from charging higher fees for prioritized delivery.

At the time, he touted the idea that “regulatory restraint” had helped make the internet “the greatest free-market innovation in history.”

But Pai apparently doesn't believe in a deregulatory approach when Republicans want to crack down on online publishers.

The FCC Chairman said last week that he plans to initiate a proceeding to interpret Section 230 of the Communications Decency Act -- the 26-year-old media law that protects web companies from liability when users posts are defamatory or otherwise unlawful.

That statute also protects companies from lawsuits for their content moderation decisions.

Pai's decision follows complaints by President Trump and other prominent Republicans who continue to claim -- without proof -- that tech companies suppress conservative views more than liberal ones.

Earlier this year, the Commerce Department asked the FCC to craft rules that could link web publishers' legal protections to the companies' policies for handling users' speech.

Shortly after Pai made his announcement, numerous telecom experts opined that the FCC has no authority to craft Section 230 regulations.

FCC general counsel Thomas Johnson disagrees, and this week published a lengthy blog post that attempts to justify his conclusion. His argument boils down to the fact that Section 230 is part of the Communications Act, which is subject to interpretation by the agency.

“The policy issues raised by the debate over Section 230 may be complex, but the FCC’s legal authority is straightforward,” Johnson writes. “Simply put, the FCC has the authority to interpret all provisions of the Communications Act, including amendments such as Section 230.” 

At this point, it's not clear what regulations Pai has in mind. But the Commerce Department argues that Section 230 should only protect decisions to block content that falls into certain categories -- including material that's violent or obscene.

Of course, even without Section 230, the First Amendment would still protect online publishers' decisions to suppress posts -- regardless of whether publishers did so based on viewpoint. But Section 230 can offer companies a faster path to victory when they're sued over those decisions.

Whether Pai has enough votes to carry out his plan remains to be seen.

Three of the agency's current commissioners have either said or strongly indicated they don't believe the FCC should intervene in online publishers' decisions about how to treat users' speech.