Commentary

FCC Unlikely To Issue New Regulations For Web Publishers, Starks Predicts

Last month, Federal Communications Commission Chairman Ajit Pai said he planned to craft regulations that could tie web publishers' legal protections to their content-moderation policies.

That plan is likely to go nowhere, given the results of last week's election. That's according to FCC Commissioner Geoffrey Starks, who opined Thursday at the 2020 Interactive Advertising Bureau Policy Summit that it will be “very hard” for Pai to move forward with new rules before President-Elect Joe Biden is inaugurated.

Pai announced his controversial plan in response to a petition by the Commerce Department's National Telecommunications and Information Administration, which asked the FCC to issue rules linking web companies' content-moderation policies to the legal protections contained in Section 230 of the Communications Decency Act.

That 26-year-old law broadly protects web companies like Twitter, YouTube and Facebook from lawsuits over a broad swath of material posted by users, including material that is defamatory.

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Judges throughout the country have repeatedly ruled that web companies retain that protection even when they edit, remove or restrict posts by users. Without that immunity, platforms that allowed users to post unvetted material would risk potentially ruinous lawsuits.

Section 230 also shields companies from lawsuits for removing users' posts or placing warning labels on them. (Even without Section 230, companies have a First Amendment right to decide what type of speech to ban from its platform.

But litigating a First Amendment issue can be more complicated and expensive for companies than securing a dismissal under Section 230.)

In May, Trump issued an executive order directing the NTIA to petition the FCC for regulations that would link web companies' content moderation policies to the Section 230's legal protections.

Trump issued the order soon after Twitter placed a warning label on two of his tweets that contained dubious claims about voting.

Since then, Starks -- along with FCC Commissioners Jessica Rosenworcel and Michael O'Rielly -- have spoken out against the idea that the agency should attempt to regulate online publishers.

Pai had not publicly said much until last month, when he announced his intent to initiate a rulemaking “to clarify the meaning” of Section 230.

On Thursday, Starks reiterated some of his earlier criticisms of Trump's order, calling it “politically motivated,” “legally unsound” and “fundamentally retaliatory in nature.”

“As an independent agency, we shouldn't have to do the president's bidding,” he said.

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