Content Moderation

09/02/2020

NetChoice Files FCC Comments on NTIA Rulemaking Petition

Today, NetChoice and Hon. Chris Cox filed comments at the FCC asking the commission to dismiss the petition for rulemaking filed by the National Telecommunications and Information Administration (“NTIA”) regarding Section 230 of the Communications Decency Act (“Section 230”).

In our filing, we made the following arguments for why the Petition should be dismissed:

  1. Congress did not intend Section 230 to create FCC regulatory authority over the internet. Both the language of the statute and its legislative history make this clear.
  2. After two decades of judicial interpretation of Section 230, during which the FCC has affirmatively chosen not to assert jurisdiction to regulate online speech, the FCC should not now seek through rule to re-interpret the statute in novel ways. Having properly not done so in the 24 years since the statute was enacted, the Commission has no special authority or expertise to which courts would defer.
  3. The proposed re-interpretations of Section 230 that the Petition is urging the FCC to adopt via rulemaking would violate the plain language of the statute.
  4. As made clear by the Commission’s long-standing policy and practice of abjuring interpretive jurisdiction over Section 230 and its subject matter, it is questionable that an assertion of such jurisdiction at this late date would be upheld by the courts. Without need of resolving that question, it is unquestionably within the FCC’s power to exercise its discretion to reject the Petition. The Commission should do so.
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