Recently, the Federalist Society published Mr. Lawrence Spiwak’s blog post aptly titled “In Response to Joel Thayer.” In it, he critiqued my analysis in another post on the FedSoc Blog, “The FCC’s Legal Authority to Regulate Platforms as Common Carriers.” Spiwak has four main criticisms of my post, which are: 1) I did not discuss the Federal Communications Commission’s (“FCC’s” or “Commission’s”) ancillary jurisdiction over platforms; 2) platform companies provide information services that shield those firms from FCC oversight under its public-utility regulations; 3) my analysis suggests that platforms can be treated as telecommunications services; and 4) I used a flawed analogy when addressing the First Amendment concerns. Although I will address all four in turn, all of these criticisms generally are red herrings or misstatements (or overstatements) of law. Worse, he never addresses the actual arguments I presented.
First, I did not discuss ancillary jurisdiction because I think the FCC may have general authority (a stronger form of authority) under Section 201(b) to regulate platforms. As I articulate in another article, the FCC has three types of jurisdiction over particular services: 1) direct; 2) general; and 3) ancillary. The Commission gets its direct jurisdiction over the telecommunications industry from the last sentence of Section 227 of the Communications Act of 1934 (“the Act”), which limits such authority to telecommunications services. However, the Commission receives its general authority from two sections of the Act: Sections 201(b) and 303(r). These statutes enable the Commission to regulate the industry more comprehensively than direct authority under Section 227, which limits it to the telecom industry. Lastly, the FCC may employ its ancillary jurisdiction (arguably its weakest authority) where “[it] has subject matter jurisdiction over the communications at issue and the assertion of jurisdiction is reasonably required to perform an express statutory obligation.”
In my article, I argue that the FCC has the proper authority under Section 201(b) of the Act, which Spiwak does not address. Instead, he makes the unsubstantiated claim that Section 201(b) is somehow limited to telecommunications service only. Specifically, Section 201(b) empowers the agency to “prescribe  rules and regulations as may be necessary in the public interest” to enforce provisions within the chapter, which includes Section 230. However, even a cursory read of the statute does not support Spiwak’s claim as Section 201(b) considers “common carrier” communications activities generally; it has no express limit to those common carriers providing telecommunications services only. As the Supreme Court has twice held in City of Arlington v. F.C.C. and Iowa Utilities Board v. F.C.C., Section 201(b) “means what it says,” and it appears that Spiwak is reading that limitation into the statute. Even the FCC’s former General Counsel agrees that
While Section 230 itself deals primarily with an immunity shield, that fact alone does not exempt it from Commission rulemaking. City of Arlington and City of Portland make clear that the FCC can clarify even those ambiguous statutory provisions within the Act that are arguably directed toward courts—such as preemption or jurisdictional provisions.
Spiwak is also incorrect that the statute treats “interactive computer services” as information services. The terms are not identical, nor has the FCC ever classified interactive computer services as information services. Spiwak’s interpretation requires ignoring the statute’s syntax and the verbs “provides or enables” at the beginning of the statute. As he points out, in 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). The definition of interactive computer service here does incorporate the term information service, but it seems to distinguish the two services by saying an interactive computer service is something that an information service can do. Further, the prefatory clause makes clear that an interactive computer service can occur on other technologies, namely through a “system” or “access service provider.”
Even under Spiwak’s reading of Section 230(f), my analysis still holds because, under a status-based versus activities-based analysis, Section 230 would not apply to providers when they are providing information services, such broadband services. Google’s fiber services would be outside the scope of the FCC’s Section 230 authority because the agency considers broadband services an information service; but Google’s search engine would be within the FCC’s Section 230 authority, assuming the Commission classified the service as an interactive computer service. Hence, even under Spiwak’s status-based versus activities-based analysis, my legal theory still holds.
Spiwak then claims that my analysis endorses the FCC treating interactive computer services as telecommunications services, subjecting them to the same type of rate regulation and Universal Service Fund (“USF”) contributions. But this misunderstands my argument. I argue that the Commission could treat interactive computer services as an entirely different utility service where the statutory limits would be grounded in Section 230. As I said in my article, at most, the Commission could determine which services could receive protection under Section 230’s Good Samaritan Rule—most likely via a declaratory ruling—and promulgate rules on what obligations, if any, platforms providing those services would have.
As for Spiwak’s disagreement with my First Amendment claim, he misunderstands the point of my analogy. I only brought up the FCC’s indecency standard as an example of FCC content restrictions that have survived judicial review and scrutiny. I could have just as easily pointed to the content regulations the FCC imposes on cable operators, such as the “equal opportunities” for political candidates under 47 C.F.R. § 73.1941 or, arguably, the FCC’s must-carry requirements to host public access channels via the Cable Act. These analogies similarly suggest that the Commission’s evaluation of Good Samaritan protections and rules would pass First Amendment muster. Additionally, the FCC might find some guidance in Justice Clarence Thomas’s concurrence in Biden v. Knight First Amendment Institute that explored similar possibilities.
Additionally, what I presented in my article is not a novel concept in most conservative legal thought. Justice Clarence Thomas’s concurrence in Biden v. Knight First Amendment Institute stated that digital platforms may be considered public utilities. He wrote in his concurrence that “[t]here is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner.” It follows that Justice Thomas would be open to the FCC evaluating its legal authority under Section 230.
Irrespective of these disagreements and misunderstandings, it appears that Spiwak and I agree that the internet in its entirety is not a public utility and should not be treated as such. Where we differ philosophically is that I believe that if the Commission treats one aspect of the network as a public utility, then it should treat others on the same network equally.