O'Rielly Departure Likely to Slow Action on Section 230, Oversight of Social Media Platforms

Commissioner Mike O’Rielly's departure from the FCC, likely in January, could cause delays in FCC action on rules on Section 230 of the Communications Decency Act if President Donald Trump is re-elected in November. Unless another Republican is approved by January, the FCC would be evenly split between Republicans and Democrats. Even if Chairman Ajit Pai were determined to move an NPRM he wouldn’t have the votes to do so, given the almost certain opposition of Democrats, industry officials said.

Despite his reservations on FCC rules in the area, O’Rielly said he would keep an open mind. Some question whether the White House intended the Section 230 proposal as a serious proposal for FCC action or as a signal to the Trump base. The White House didn’t comment.

“The pattern of comments and behavior from the White House suggests that the FCC is a bit of an afterthought in terms of how procedure actually works in that agency,” said Kristian Stout, associate director at the International Center for Law & Economics. “I’m not sure that the administration actually meant for [the proposal] to go forward so much as use it as an election year action to encourage the support of the base.”

Withdrawing the renomination “was a serious tactical mistake on the part of the White House, one that could prove especially costly if a President [Joe] Biden ends up selecting O'Rielly's replacement,” said Josh Withrow, senior policy analyst at FreedomWorks.

If O’Rielly’s nomination “was indeed pulled due to his preliminary questions regarding the Section 230 proceeding, and if he does not get his renomination restored yet stays on the commission until sine die, there’s no incentive for him to support a NPRM, if one ever materializes,” said Cooley’s Robert McDowell, a former commissioner.

Earlier this month, the FCC sought comment on a Commerce Department petition seeking an NPRM (see 2008030025). Initial comments are due Sept. 2 in docket RM-11862. Commissioner Brendan Carr said the FCC probably has authority to act under the CDA (see 2008060062) but he doesn’t want to “prejudge” a decision.

The White House probably doesn’t care whether the petition is approved and Pai likely doesn’t want a vote, said New Street’s Blair Levin. “It's purpose was not to actually change the law -- most legal experts say that if the FCC were to agree with the White House position the courts would overturn it and I agree with those experts,” he said: “The purpose of the petition was to provide a forum in which Republicans, and particularly Carr and Pai, could complain about various actions by social media during the campaign in an effort to work the refs."

The message sent with the withdrawal was the importance of loyalty above all else, Levin said: “In terms of depressing criticism by Republicans, including at the FCC, it is working very well.”

Finding the right candidate to replace O’Rielly won’t be easy, said Daniel Lyons, professor at Boston College Law School. “It would likely have to be someone who is a Republican, who knows telecom policy and supports the NTIA petition but thinks the Ligado order was wrongly decided,” Lyons said: “The intersection of that Venn diagram is very small indeed.”

Trump had the ability to “encourage” O’Rielly to support a rulemaking, but it “seems like that leverage is gone now that the president” withdrew the renomination, said NetChoice Vice President Carl Szabo, calling it a “surprising” and “disappointing” move. The administration has a firm grasp on FCC process, so this could all be “political positioning,” he added. “Regardless, it sets a dangerous precedent for this and future administrations by opening the door to politicization.”

"The NTIA asked the FCC to do something unconstitutional, illegal, and wildly out of step with American values,” said Center for Democracy and Technology General Counsel Avery Gardiner in a statement. “It was motivated by the President's attempt to control online speech in the middle of an election. This is such a no-brainer that it shouldn't matter who has been renominated to the FCC or not. Rejecting the petition is the only path forward for any Commissioner who values the First Amendment."

Trump had two options -- extend O’Rielly’s tenure or leave his seat open, said the High Tech Forum’s Richard Bennett. “It’s too late in the session to push an alternate candidate through the Senate,” he said. “Election shenanigans aside, the FCC does not and never will have authority to impose speech restrictions on internet-based services. Such a feat requires reworking the First Amendment and then rewriting the Communications Act. Come January, Commissioner Carr is going to be a lonely man.”

If Trump wanted FCC action before the year's end, withdrawing the nomination “was probably a short-sighted approach as he almost certainly won't have the votes at the commission now,” said Jeffrey Westling, R Street Institute technology and innovation policy fellow. “It does present an opportunity next year,” he said: “If President Trump loses, even if the commission moved on the petition this year, a Democratic FCC would probably just reverse course next year. If he wins, he can then find a replacement for … O'Rielly who shares his views on Section 230 and the executive order.”

The Software & Information Industry Association shares free speech concerns O’Rielly raised in July, emailed General Counsel Chris Mohr: The Trump executive order upends a balance struck by Communications Decency Act Section 230 by “attempting to order independent commissions to see whether a particular viewpoint is being throttled on a private network.” Any potential adjustment to Section 230 should be left to Congress, not independent agencies, he argued.

Judy Faktorovich, technology law and policy scholar at the Lawfare Institute, blogged Friday that the FCC’s authority is questionable. “Section 230 does not reference the FCC at all, calling into question whether the agency has the necessary authority to begin with,” she said: “The commission would need to demonstrate the necessary delegative authority from Congress to promulgate any rulemaking that would effectively amend a congressional statute.”