Recently, the Federalist Society posted a blog by Joel Thayer entitled The FCC’s Legal Authority to Regulate Platforms as Common Carriers. Mr. Thayer’s central argument appears to be as follows: (1) because Congress housed the “Good Samaritan” provisions of Section 230(c) of the Communications Decency Act in Title II of the Communications Act of 1934, the Federal Communications Commission (“FCC”) has unambiguous subject matter jurisdiction to regulate tech platforms such as Amazon, Google, Facebook and Twitter as “common carriers”; and (2), given this subject matter jurisdiction, the FCC therefore can impose upon these firms the full panoply of statutory requirements designed for the old Ma Bell monopoly, including presumably the obligation to file tariffs at regulated rates and mandatory contributions to the universal service fund.
While Mr. Thayer’s theory is certainly bold, his essay raises more questions than it answers.
To begin, note that Mr. Thayer never argues that the Commission can assert ancillary jurisdiction over tech platforms. In fact, there is no mention whatsoever of ancillary jurisdiction anywhere in his post. Instead, Mr. Thayer is adamant that Congress affirmatively and expressly granted the Commission regulatory authority over tech platforms via Section 230(c). To state the matter politely, that argument is quite a stretch.
First, the plain language of Section 230(c) contains nothing about the FCC’s authority to regulate the rates, terms, and conditions of service of common carriers (tech platforms or otherwise). Instead, Section 230(c) simply provides for an affirmative defense that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Second, under the Title II “common carriage” is not status-based but activity-based. The FCC’s subject matter jurisdiction to regulate the rates, terms, and conditions of a company’s service under Sections 201 and 202 on a common carrier basis depends entirely on whether that service is an interstate telecommunications service. Given the plain language of the Communications Act, it is unclear how Mr. Thayer makes the analytical leap that because Congress decided to house the Communications Decency Act in Title II, Section 230 automatically bestows “common carrier” status on tech platforms when they do not provide a jurisdictional service.
(By way of an obvious illustration of status- versus activity-based jurisdiction, when cable companies provide multichannel delivered programming, the Communications Act does not classify that service as a common carrier “telecommunications service” under Title II. Rather, those services are governed by Title VI of the Communications Act and are not regulated by the Commission on a common carrier basis. When the FCC’s 2015 Open Internet Order was in effect, the FCC classified Broadband Internet Access Service (“BIAS”) to be a telecommunications service. In so doing, the FCC only brought BIAS provided by cable companies under the Title II umbrella; cable companies’ provision of multichannel delivered programming remained governed by Title VI.)
To Mr. Thayer’s credit, he at least recognizes the shortcomings of his argument. As Mr. Thayer concedes, the fact that the FCC’s subject matter jurisdiction under Title II is limited to interstate telecommunications service “poses a challenge . . . as most interactive service providers only provide edge services (e.g., social media sites, streaming services, etc.), which the Agency does not traditionally regulate.” But for Mr. Thayer, this statutory requirement is “irrelevant.” He argues that all the Commission needs to do is “clarify that platforms provide interactive computer services for it to have the requisite jurisdiction to regulate them as common carriers.”
Perhaps Mr. Thayer needs to read the statute more closely. Under the plain terms of Section 230(f), the term “interactive computer service” means “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” (Emphasis supplied.) Thus, because an interactive computer service is not a telecommunications service but is—by statutory definition—an “information service,” Section 153(51) of the Communications Act makes clear (and courts have confirmed), that the FCC may not regulate an information service as a common carrier service under Title II.
Finally, Mr. Thayer argues that because the FCC has express subject matter jurisdiction over platforms under his reading of Section 230(c), the FCC can also impose content regulation on tech platforms. To support his argument, Mr. Thayer contends that because the FCC has the statutory authority to regulate obscene material by broadcast radio and television licensees, the “FCC may find some good analogies in those regulations when constructing its rules under Section 230 without violating the First Amendment.”
For seasoned telecommunications lawyers, a couple of glaring problems with Mr. Thayer’s argument should immediately jump out. First, it should not have to be repeated that the only reason why the U.S. government can regulate broadcaster content is because of the social contract between the regulator and the regulated: that is, in exchange for the free use of the public airways, the government has the right to impose limited content regulation in the public interest. Free use of the public’s airways is the Commission’s only statutory hook for content regulation over broadcasters. In contrast, the government has no authority to regulate the content of private firms such as cable companies or cable programmers. Second, by Mr. Thayer’s own logic, if the FCC were to attempt to impose content restrictions on tech platforms, then it would need to develop a theory of ancillary jurisdiction—a road which Mr. Thayer has conspicuously avoided going down in his blog.
The contentious fight over Section 230 is complicated and certainly deserves vigorous examination. While I am generally agnostic about how this debate should ultimately be resolved, I do know this: any resolution of the Section 230 issue should not give the FCC broad and expansive powers untethered to its statutory mandate.
As I demonstrated in a law review several years ago, because the D.C. Circuit upheld the FCC’s legal gymnastics contained the 2015 Open Internet Order in United States Telecom Association v. FCC, Title II now bears very little resemblance to its statutory foundations. Mr. Thayer’s argument, if accepted, would simply exacerbate this trend. Following Mr. Thayer’s argument to its logical conclusion would leave the FCC free to impose common carrier public utility regulation over information services in direct contravention to the plain terms of the Act. Worse, under Mr. Thayer’s theory, if the FCC can impose content restrictions on tech platforms, then the FCC would also be free to impose content regulation over any Multichannel Video Programming Distributor (and perhaps even cable programmers) as well. We have recently witnessed senior Democrats in Congress aggressively push for exactly this outcome and the silence from the Democratic FCC Commissioners in response to such an outrageous threat to free speech is deafening.
I agree with Mr. Thayer that that the Internet Ecosystem works best when regulation is symmetrical. Perhaps it works even better when regulation is absent. For this reason, the FCC was correct in its 2018 Restoring Internet Freedom Order to remove ex ante regulation over Internet Service Providers (ISPs) in favor of a holistic approach under the nation’s antitrust laws. But even if the FCC returns to a Title II net neutrality regime for ISPs, should we drag the entire Internet Ecosystem under the Title II umbrella based on a tortured reading of the Communications Act? I believe doing so would set us upon a path of unbridled regulatory power that would be difficult to unwind.