The FCC's Legal Authority to Regulate Platforms as Common Carriers
|Topics:||Telecommunications & Electronic Media|
|Sponsors:||Telecommunications & Electronic Media Practice Group|
In the net neutrality debate, there have been a wide array of articles outlining the Federal Communications Commission’s (FCC) authority under Title II of the Communications Act (i.e., the Common Carrier Regulations Title) to revert internet service providers (ISPs) to public utilities. But what many overlook is the fact that platforms (e.g., social media, search engines, DNS providers, etc.) may already be considered common carriers under Section 230 of the Communications Act, since Section 230 falls under Title II, too. This fact should merge the often-siloed conversations about net neutrality and Section 230 into one as both attempt to tackle the same underlying goal: Ensuring the average consumer can access lawful online content. And yet it has not.
The traditional way of talking about net neutrality is to bifurcate internet regulatory measures by limiting the FCC’s authority to regulate under Title II to ISPs only. This is completely arbitrary because if the FCC decides to reverse its Restoring Internet Freedom Order by reinstituting ISPs’ common carrier status, it has just as much authority, if not more, to promulgate rules for platforms under Title II, Section 230. Yet there are some who still contend that the FCC can apply common carriage requirements to ISPs only.
The FCC can determine which companies qualify for protection under Section 230’s Good Samaritan law. The Good Samaritan law shields platform companies from liability for their users’ posts when those companies provide an “interactive computer service” (e.g., social media sites, or a digital marketplaces). Yet platform companies that benefit from this immunity under Title II claim that their technological differences from ISPs warrant a special forbearance from FCC enforcement under Title II. However, the technological differences between ISPs and platforms are not dispositive to the FCC’s statutory jurisdiction and may even be irrelevant. This is especially true when one considers that platform companies themselves claim to provide interactive computer services, which are defined in Title II. Title II distinguishes interactive computer services from other services, such as information services which are more deregulated under Title I of the Act. Basic principles of statutory construction dictate that Congress intended platforms to be common carriers, or at least that it did not intend for them to be classified as providing Title I services.
Another argument against Title II regulation of platforms is that the Communications Act is an inappropriate authority to promulgate rules under Section 230, which again ignores the fact that Section 230 sits in Title II of the Communications Act. Because Section 230 sits in Title II, all services covered under the statute are subject to the Title’s rulemaking authority under Section 201(b). Ironically, Title II is the FCC’s strongest form of express authority due to rulemaking authority under Section 201(b) as the agency uses it to promulgate its rules for public utility services (e.g., telecommunications services). 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 Title II. Even read narrowly, the FCC need only clarify that platforms provide interactive computer services for it to have the requisite jurisdiction to regulate them as common carriers.
Traditionally, Section 201(b) applies to rules related to common carriers. In this context, “‘common carrier’ . . . means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy.” Traditionally, the FCC only regulates common carriers that provide “telecommunications services” or radio communications services. “The term ‘telecommunications’ means the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.” This poses a challenge for the Commission, as most interactive service providers only provide edge services (e.g., social media sites, streaming services, etc.), which the Agency does not traditionally regulate.
No court has held the FCC cannot regulate platforms under Section 230. Platform companies and net neutrality advocates usually claim the D.C. Circuit’s opinion in Comcast v. F.C.C. shows the FCC lacks jurisdiction to regulate under Section 230. Some even go as far as to say that the D.C. Circuit held that this precedent forbade the FCC from regulating platforms under Section 230. However, the D.C. Circuit said nothing of the sort. The court simply said the FCC could not use Section 230’s policy statements in Section 230(b) as an independent source of authority to regulate an ISP’s network management practices. It did not address the FCC’s express authority under Section 230(c) to regulate platforms; subsection (c) also happens to be where the Communications Act’s Good Samaritan rule is found.
Platforms also argue that the First Amendment prevents the FCC from regulating content, but the FCC already regulates content, albeit under 18 U.S.C. § 1464, not Section 230. The FCC currently has the authority to regulate against “obscene” material on broadcast radio and television via its “indecen[cy]” standard. The FCC can (1) revoke a station’s license, (2) issue a cease-and-desist order to a station’s license or (3) impose a monetary forfeiture for a violation of Section 1464. The FCC may find some good analogies in those regulations when constructing its rules under Section 230 without violating the First Amendment.
As a last resort, advocates have argued that Congress did not intend to put Section 230 in Title II. But if this was truly not Congress’s intent, then it is up to Congress to make that clear, not the FCC. Neither courts nor regulators should fix Congress’s typos. Until Congress enacts a new law, then this argument, too, holds no water.
In short, advocates for net neutrality—FCC regulation of ISPs as Title II common carriers—should also be advocates of FCC regulation of platforms under Section 230—a provision of Title II. Their efforts to make ISPs out as proverbial boogeymen without due consideration of how such regulation should also affect platforms shows that the push for net neutrality is less than principled.
If the FCC treats one aspect of the internet stack as a public utility, then it must hold the entire internet ecosystem to the same standard so that the policy will better ensure consistent and predictable legal requirements. If not, then the FCC runs the risk of imposing inconsistent and haphazard enforcement and regulatory policies on internet practices.