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FCC won't review Section 230 before Biden takes over

Election result leaves no time for rulemaking, says Commission chair

11 Jan 2021

Outgoing Federal Communications Commission (FCC) chair Ajit Pai has walked back a decision to review the controversial Section 230 clause.

In an interview with C-SPAN's The Communicators program, Pai confirmed he would no longer move ahead with a rulemaking process to review the law because the transition of power from the Trump administration to the Biden administration doesn’t allow it.

"Given the results of the election, there's simply not sufficient time to complete the administrative steps necessary in order to resolve the rule-making," he told the show.

Pai previously cited concerns from all three branches of government as a key factor in reinterpreting the law but said that the incoming administration would have to make any decisions on the controversial clause.

"Obviously the president believes it should be repealed, president-elect Biden has campaigned repeatedly on its repeal, but within Congress there appears to be a consensus also that it should be revised or reformed in some way," he said. If he were to reinterpret the law, Pai said he would "think about it more carefully in terms of the immunity provision."

Originally introduced as part of the Communications Decency Act in 1996, Section 230 prevents an "interactive computer service" from being treated as the publisher of third-party content. That’s been interpreted as a get-out clause for social media companies, as it prevents them from being held responsible for user posts. Section 230 has been a bone of contention for president Trump, who issued an executive order that attempted to strike down Section 230 protections last May.

Congressional lawmakers have repeatedly introduced legislation targeting Section 230. In June 2020, senators revealed the bipartisan Platform Accountability and Consumer Transparency Act that would’ve held social media companies liable for hosting illegal content. Senators also introduced the Online Freedom and Viewpoint Diversity Act in September that would have held social media companies liable for third-party content.

President-elect Joe Biden has also criticized the law and indicated that he might review or abolish it.

On October 15, Pai announced that the Commission would reinterpret the law after bipartisan support in Congress to reform the law. "Social media companies have a First Amendment right to free speech," he said at the time. "But they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters."

On August 3 2020, the FCC had asked for public comment in response to a petition for rulemaking from the Department of Commerce.

Pai refused to be drawn on the president's withdrawal of Michael O'Rielly's nomination for another term as FCC commissioner in August after he questioned the Commission's authority to interpret Section 230 in a June C-Span interview.

In an analysis of Pai's original decision to interpret Section 230, FCC general counsel Thomas M. Johnson Jr explained that it fell within the Commission's authority because the introduction of the clause made it part of the 1934 Communications Act.