The FCC Still Can’t Interpret Section 230

In the waning days of the first Trump Administration, Tom Johnson, then-General Counsel of the Federal Communications Commission, released a memorandum outlining a potential legal theory to allow the FCC to institute a rulemaking to interpret Section 230 of the Communications Decency Act. Although the Biden Administration dropped the matter and Johnson’s theory was never tested in court, President Trump’s new FCC Chairman Brendan Carr has long been a vocal proponent of having the Commission do something about Section 230, and Administration officials are sending strong signals that the Commission will soon attempt to do just that.

Last November, the FedSoc Blog published my essay Sauce for the Goose: The FCC Lacks Authority to Interpret Section 230 Post-Loper Bright. In that essay, I argued that because Section 230 does not provide the FCC with any enforcement or other regulatory responsibilities but is instead simply an affirmative defense for civil litigation, the FCC has no authority to issue rules to interpret that statute.  I further argued that the Commission’s ability to interpret Section 230 is particularly constrained because the Supreme Court overturned Chevron in Loper Bright Enterprises v. Raimondo last term, holding that statutory interpretation is a task left exclusively to the judiciary and not to unelected bureaucrats. Given the response to my original essay, I think it is worth highlighting some recent developments in the law which bolster my arguments and addressing some pushback.

First, an update on the law.

In my original piece, I noted that the Sixth Circuit was then evaluating the validity of the FCC’s most recent attempt to impose legacy public utility regulation contained in Title II of the Communications Act on the internet. Because the Sixth Circuit had granted a stay of the FCC’s rules by concluding that the FCC’s rules likely violated the recently rejuvenated major questions doctrine, many people (including myself) believed the merits panel would also focus on that issue. We were all wrong. In January, the Sixth Circuit issued an opinion on the merits in In re MCP, but, unlike the stay panel, the merits panel never reached the major questions issue; instead, it summarily rejected the FCC’s efforts via full-throated application of Loper Bright.

The Sixth Circuit began its merits opinion by providing a summary of the see-saw regulatory approach of the net neutrality saga over the past two decades: Democrats attempted to regulate the internet by claiming that broadband internet access was a “telecommunications service” subject to common carrier regulation under Title II; Republicans tried to deregulate the internet by claiming that broadband was an “information service” under Title I. This legal vacillation was made possible by Chevron deference. Justice Gorsuch, in his concurrence in Loper Bright, noted this connection in this very context, remarking that “Chevron deference engenders constant uncertainty and convulsive change even when the statute at issue itself remains unchanged.” But according to the Sixth Circuit, “’[a]pplying Loper Bright means we can end the FCC’s vacillations.” As the court noted, with Loper Bright now the law of the land, it is not the FCC’s task to interpret the Communications Act; rather, it is the judiciary’s task “to ‘determine the best reading of the statute’ in the first instance.” And based on its reading of the statute, the court ruled that broadband was best characterized as an “information service.” Thus, the Sixth Circuit sent a strong message that courts intend to follow Loper Bright strictly, and that administrative agencies should therefore be wary of any interpretive overreach as they implement their governing statutes.

There is another important wrinkle with the Sixth Circuit’s merits decision in In re MCP that directly relates to the question of the FCC’s ability to interpret Section 230. In 2008, the Sixth Circuit decided Alliance For Community Media v. FCC. At issue was whether the FCC had the legal authority to interpret Section 621 of the Communications Act, and whether the court had to give the FCC’s interpretation deference under Chevron. Using a strikingly similar legal theory to that articulated in the 2020 Johnson Memorandum—in fact, the Johnson Memorandum relied heavily upon Community Media—the Sixth Circuit answered both questions in the affirmative. But with the Sixth Circuit’s subsequent ruling in In re MCP—which strictly follows Loper Bright—is Community Media still good law? The Sixth Circuit neither formally overturned nor distinguished the case in In re MCP. (Perhaps the court viewed the case as one of the “grandfathered” Chevron decisions permitted by Loper Bright?) Still, should the FCC move forward with a proceeding to interpret Section 230 using the Johnson Memorandum’s legal theory, it seems unlikely that its efforts would receive a warm reception from the Sixth Circuit with Loper Bright and In re MCP now on the books.

Which brings me to proponents of the FCC’s power to interpret Section 230.

About a month after I wrote my original post, Seth Cooper of the Free State Foundation wrote a response entitled Power to Persuade: The FCC’s Authority to Interpret Section 230 Post-Loper Bright. While Mr. Cooper agreed with me that Loper Bright eliminated the FCC’s power to make binding authoritative legal interpretations of federal statutes, he argued that Loper Bright nonetheless “recognized that agencies retain the power to interpret the meaning of statutes within their jurisdiction and that, pursuant to Skidmore v. Swift & Co., courts still should consider agency views for their ‘power to persuade, if lacking power to control.’” Thus, argued Mr. Cooper, “a Trump 2.0 FCC possesses the power to issue a policy statement, declaratory ruling, and/or published report offering its interpretation of Section 230’s provisions, such as the meaning of ‘good faith,’ as a source of guidance for courts.”

Skidmore notes that agency “rulings, interpretations and opinions . . . while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” However, Mr. Cooper fails to acknowledge that the “weight [a court should accord to] such a judgment in a particular case” depends on four factors: (1) “the thoroughness evident in [the agency’s] consideration”; (2) “the validity of [the agency’s] reasoning; (3) the agency’s “consistency with earlier and later pronouncements”; and (4) “all those factors which give [the agency] power to persuade, if lacking power to control.”

Skidmore deference is case-dependent, and the FCC has yet to tip its analytical hand in any “policy statement, declaratory ruling, and/or published report,” so it is difficult to prognosticate how a court would view factors (1), (2), and (4).

But the third factor—“consistency with earlier and later pronouncements”—would clearly be problematic for the FCC. The Commission has never attempted to interpret Section 230, so there are no “earlier and later pronouncements” that a reviewing court could compare. The only thing that has been consistent has been the absence of agency action (on a bipartisan basis, no less). Such inaction by the FCC is unsurprising for two obvious and related reasons. First, as noted above, Section 230 does not provide the Commission with any enforcement or other regulatory responsibilities but is instead simply an affirmative defense for civil litigation. Second, and more broadly, digital platforms generally do not engage in any jurisdictional activity covered by the Communications Act. The FCC simply never had any pressing reason to address the question. Thus, any new action by the Commission to interpret Section 230 would be terra nova.

As I noted in my original piece, Loper Bright and West Virginia v. EPA mark significant steps by the Supreme Court to ensure that administrative agencies stay in their lanes. After all, these two cases are expressly designed to inconvenience any administrative agency that seeks to wield power untethered from its statutory authority. For this reason, I am puzzled that some of the most ardent critics of Chevron are also the most ardent proponents of having the FCC interpret Section 230 by appealing to some other sort of so-called “deference.” For example, FCC Chairman Brendan Carr, who wrote an eloquent critique of Chevron last year in his dissent to the Biden Administration’s now-reversed 2024 Open Internet Rules, now argues that the FCC can interpret Section 230.  Randy May, Seth Cooper’s colleague at the Free State Foundation, wrote an op-ed in the Washington Times evincing similar sentiments about Chevron, but he also argues the FCC can interpret Section 230.

But the law does not work that way, so I stand by my original conclusion in my earlier essay: “President Trump has made it clear that one of the hallmarks of his second term will be to dramatically reduce the power of the administrative state. Loper Bright and West Virginia do just that, and what is good for the goose must be good for the gander. The scope of those decisions seems sure to encompass any effort by the FCC to interpret Section 230, irrespective of the alleged prudence of Section 230 reform.”