IA Urges FCC To Reject NTIA’s Flawed Petition For Rulemaking And Preserve Online Content Moderation Under Section 230

“If implemented, this Petition will fundamentally break many products and services that consumers rely upon and use every day. NTIA’s Petition lacks a legitimate legal basis and would cause serious harm to companies’ content moderation efforts that protect consumers and that reasonable people want platforms to take.”

Elizabeth Banker, IA Deputy General Counsel

Washington, DC — Today, Internet Association (IA) filed comments with the Federal Communications Commission (FCC) on the Petition for Rulemaking of the National Telecommunications and Information Administration (NTIA). IA’s filing details the myriad reasons why the FCC must decline to act on the Petition. IA’s filing focuses on the lack of legal basis and the serious public policy consequences of implementing the NTIA’s Proposed Rules, including how the rules would irreparably harm the internet as we know it and would severely limit important company moderation efforts. 

“If implemented, this Petition will fundamentally break many products and services that consumers rely upon and use every day. NTIA’s Petition lacks a legitimate legal basis and would cause serious harm to companies’ content moderation efforts that protect consumers and that reasonable people want platforms to take,” said Elizabeth Banker, IA Deputy General Counsel. “This petition would throw out two decades of settled Section 230 case law that empowers companies to remove content like fraud, manipulated media, and promotion of suicide without facing a flood of litigation.” 

IA’s filing presents the following key arguments to outline the petition’s fundamental flaws: 

• The FCC cannot engage in the rulemaking proposed by the Petition. Congress has not delegated the authority to the FCC and no authority should be implied. NTIA’s claims of FCC authority under Section 201(b) of the Telecommunications Act are weak, at best. But even more importantly, it is clear from the text of Section 230 and its legislative history that Congress explicitly rejected a role for FCC. Even a cursory look at the plain text and congressional record surrounding Section 230 shows Congress did not want a federal agency involved in the moderation of online speech. From the filing:
  • “NTIA asserts that the Commission has authority to adopt all but one of NTIA’s Proposed Rules pursuant solely to Section 201(b) of the Communications Act. Specifically, NTIA claims the authority provided by Section 201(b) ‘includes the power to clarify the language of [a] provision [within the Act].’ But Section 230 is clear and unambiguously affords the FCC no such authority. To the contrary, Section 230 is a self-executing provision directed at private parties and courts seeking to resolve civil complaints against covered service providers. Congress intended that the courts, not the FCC, construe Section 230 in the context of particular disputes.”
• The Proposed Rules would result in a reversal of Section 230’s incentive structure and cause irreparable harm to the entire internet community. Providers who take an “anything goes” approach to their services would be protected and providers who attempt to engage in responsible content moderation, such as removing scams, manipulated media, or the promotion of suicide or eating disorders, would be exposed to significant litigation. From the filing: 
  • “The Proposed Rules would turn Section 230 on its head by applying more protection to leaving up objectionable content, than to the removal of objectionable content. This is the opposite of what Congress intended and the FCC may not adopt rules that contravene the clear intent of Congress.”
  • “Returning to the world before Section 230 was law would result in stark choices for interactive computer services. On the one hand, platforms would be discouraged from moderating content out of fear that moderation could create liability. And on the other hand, there would be platforms that would supply only highly-curated content to reduce legal risk, but they would give representation to significantly fewer voices. The now-flourishing middle ground where average citizens can create and consume content subject to reasonable rules set by individuals platforms and services would contract dramatically.”
• The Petition runs aground of bedrock First Amendment principles. The First Amendment bars the government from conditioning Section 230 on platforms’ ability to make decisions about what kind of content to host or prohibit. Platforms are not state actors, and are not subject to the government’s prohibition on viewpoint discrimination. This distinction enables platforms to make moderation and curation decisions appropriate for their individual services. From the filing:
  • “The First Amendment] is critical to allowing online communities and services to develop around common interests, shared beliefs, and specific purposes. It is also critical to allowing online services to cater to different audiences, including the ability to design rules to make their services age-appropriate or purpose-appropriate.”

To read the full filing, click here.

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