FCC Has Narrow Focus as Section 230 Rulemaking Launched, Pai Tells TPI

FCC Chairman Ajit Pai told the Technology Policy Institute virtual conference Thursday that he's only following the advice of the Commerce Department and the FCC general counsel in proposing a rulemaking examining FCC control of internet platforms under Communications Decency Act Section 230. Pai emphasized the FCC is considering a narrow legal question. On a panel, experts said the FCC is underperforming on closing the digital divide.

“I can’t speak to what my colleagues might think,” Pai said. “We are heeding the advice of the general counsel, who has opined in a very detailed analysis (see 2010210062) … that under Section 230, and Section 201(b) of the Communications Act, the FCC has a legal provision that it is empowered to opine on,” he said. The legal foundation is “fairly clear,” he said.

Congress is looking at broader policy questions, Pai said. “We’re focused on the question about the proper interpretation of that liability provision,” he said: “Obviously, there’s a broader conversation out there in the halls of Congress and in the American public.” Pai said he has drawn no conclusions on “exactly how do we give meaning to some of those terms, which some have said are ambiguous in the relevant part of Section 230.” The FCC is expected to move forward on rules if President Donald Trump is reelected in November (see 2009240058).

Support appears to be “bipartisan” for changes to Section 230, Pai said: “Members of Congress from both parties have suggested that reforms are appropriate.” Democratic nominee Joe Biden “explicitly campaigned on repealing Section 230 altogether,” he said.

“Millions of poor and rural families do not have connections, exacerbating inequalities,” said TPI President Scott Wallsten on a panel. “The difference in educational attainment between the haves and the have-nots is likely to dwarf anything we have seen in most of our lifetimes,” he said. The problem is even worse in much of the rest of the world, he said. The number of low-income and rural people with broadband is increasing, “but little if any evidence suggests that our public policies are helping increase that rate sufficiently,” he said.

Former NTIA Administrator Larry Irving said 25 years ago he would have “bet any amount of money that we wouldn’t be where we are today,” with some 25% of American families still not able to afford “real” broadband. That 10 million children are out of school and “have neither a computing device nor broadband access” is “unconscionable,” he said.

People say “I live in New York City, why should I have to pay for some guy who decides to live on the prairie? That’s his issue,” Irving said: “We have not come together as Americans.” Similar gaps existed in telephone service in 1984, when the federal Lifeline program was launched, he said. Even in the face of the COVID-19 pandemic, with trillions of dollars of relief approved by Congress, “not one dollar … has been focused specifically on the digital divide,” he said. “It hasn’t happened even in the middle of a pandemic.”

The U.S. is spending billions every year on access for “a small number of people” in rural areas, and “we’re not spending much money at all on low-income programs where you might be able to connect a whole lot more people,” said Gregory Rosston, director of the Public Policy Program at Stanford University. Some people won’t connect even if the price of broadband is low, he said: “We don’t know what the answers are.” Digital literacy training “isn’t a great answer, but we don’t know what is,” he said.

School districts across the U.S. are trying different programs to get students online, but the FCC doesn’t seem to be paying much attention, Rosston said. “Wireless is getting better and better and better,” he said. “When you give people an inferior product, don’t be surprised when they won’t use it,” Irving responded: “It’s just human nature.”

Pai defended the FCC’s record on deployment. “By any metric you use, the digital divide has closed over the last several years,” he said. “Millions more Americans have access to the internet today than they had when I got into office.” Pai noted the Rural Digital Opportunity Fund Phase I auction starts next week. Despite “some shortsighted partisan opposition, we’re moving ahead,” he said.

Unlike what regulators have done in Europe, the FCC hasn't had to ask Netflix, YouTube or other streaming services to throttle their content during the pandemic. “We know that our networks are stronger,” he said: “We’ve had the infrastructure investment to sustain that increase in traffic.”

More focus on affordability and continuing streamlining of infrastructure deployment are among the ideas current and former FCC commissioners suggested on an afternoon panel for improving broadband deployment. Ex-Commissioner Mignon Clyburn complained that Lifeline, the only federal program with an affordability focus, has "been politicized and demonized." Former Commissioner Robert McDowell, now at Cooley, said beyond streamlining state and local procedures, federal permitting for network deployments should be ramped up. Commissioner Brendan Carr said a lack of skilled labor delayed network deployments, noting a big need for tower workers for 5G. Commissioner Geoffrey Starks said lack of rural broadband is an issue, but broadband adoption rates are lower in urban areas, generally due to affordability, and that needs to be a bigger agency focus.

Asked about FCC process changes, Carr urged commissioners to engage on suggested edits on open meeting items enough in advance that there could be compromise and debate instead of bringing them up just hours before the meeting. “We have got to teach each other,” he said. McDowell urged items on circulation be made public.

The current universal service contribution regime "is a nightmare" that the FCC has been punting on for years, Clyburn said. McDowell said contribution revisions are needed but making them is "a radioactive hot potato" that's going to require congressional action.

The panelists spent several minutes defending and criticizing the 2015 net neutrality rules. Clyburn and Starks defended the paid prioritization ban. McDowell replied that the required FCC approvals for paid prioritization delayed innovation and the anti-competitive effects of paid prioritization already were precluded by law without Title II rules. Starks and Clyburn also urged the FCC having a role in broadband privacy, alongside the FTC. Carr said with passage of the Congressional Review Act, the FCC has "absolutely no authority" to impose privacy rules, and the FTC has always been the best entity for taking the privacy lead.