230 Petition Commenters Question FCC Authority, Argue NTIA Proposal Unconstitutional, Bad for Tech

This week marked the deadline for opening comments on NTIA’s Petition asking the FCC to cut back on Section 230 liability protections and impose disclosure regulations on interactive computer services. The Petition, which NTIA filed at the specific direction of the President, garnered more than 1100 comments—though most of these were brief “Express” comments from individuals offering little more than support for the President’s crusade against “censorship” and “Big Tech.”

The vast majority of trade associations and think tanks that provided substantive analysis of NTIA’s proposal criticized it, generally arguing that the FCC lacks authority to interpret Section 230 or regulate edge providers, that limiting Section 230 would harm the growth of the Internet and America’s continued leadership in that space, and that trying to make Section 230 protection contingent on being sufficiently “neutral” would raise significant First Amendment concerns. The Center for Democracy and Technology, for example, described the Petition as “the product of an unconstitutional Executive Order that seeks to use the FCC as a partisan weapon.” TechFreedom asserted that the Petition seeks “a new, more arbitrary Fairness Doctrine for the Internet.” CCIA argued that NTIA had exceeded its authority submitting the Petition, and that the FCC “has no role in regulating speech on the Internet.” Consumer Reports agreed that “[n]either the NTIA nor the FCC have the legal authority to act on these issues,” and that the Petition “would make it more difficult for platforms to police for abuse, resulting in a worse internet ecosystem for consumers.” INCOMPAS asserted that the Petition “could harm the availability of new, competitive online services for consumers.” The R Street Institute warned that the Petition would “derail the entire intermediary liability regime that has made American technology companies the envy of the world, while drastically increasing the FCC’s authority of the Internet.” And the Consumer Technology Association, in comments this firm assisted with, called the Petition “as dangerous as it is legally flawed” arguing that the Petition “threatens the continued viability of the modern internet and asks the federal government, through the FCC, to curtail the First Amendment freedoms of all American companies that have hosted or will ever host third party content online.”

Few internet service providers or edge providers submitted their own comments, apparently relying on the robust trade association and think tank presence to build a record on the Petition. One exception was Vimeo, Reddit, and Automatic Inc., who filed joint comments describing the Petition as “invit[ing] the Commission to, in effect, repeal Section 230 by administrative fiat and plunge head-first into “the constitutionally sensitive area of content regulation.” Akamai also weighed in, saying the FCC “lacks legal authority to adopt NTIA’s proposed rules,” which are “inconsistent with fundamental First Amendment principles,” but asking that if the FCC concludes otherwise, it also “recognize the essential and distinct role that Akamai and other infrastructure providers play in the internet ecosystem.” On the other hand, AT&T Services signaled its support for “greater transparency about the algorithmic choices that so profoundly shape the American economic and political landscape” and “reduc[ing] gross disparities in legal treatment between dominant online platforms and similarly situated companies in the traditional economy,” though it stopped short of endorsing the NTIA Petition.

Free State Foundation took a similar approach, arguing that the FCC does have the authority to interpret Section 230 and should reexamine the statute, but declining to endorse the proposed rules. A group called DigitalFrontiers Advocacy also urged that the FCC engage in Section 230 reform, likewise without endorsing NTIA’s proposed rules. Beyond the “Express” commenters, actual support for the NTIA Petition itself was thin. Several Republican state Attorneys General submitted joint comments in favor of the Petition, arguing that the alleged prevalence of online private companies “downplaying, editing, or even suppressing political speech” requires government intervention to safeguard the First Amendment. As with the Executive Order that directed NTIA to file the Petition, the comments of the state AGs appear motivated by concern about particular incidents involving the President and his statements on social media. State Attorneys General likely will have a role in another aspect of the EO’s implementation: consulting on the Attorney General’s efforts both to consider how state unfair and deceptive practices laws can be enforced against online platforms and to develop model legislation “where existing statutes do not protect Americans from such unfair and deceptive acts and practices.”

Reply comments are due September 17.