Experts Expect FCC CDA S. 230 Proceeding to Stagnate in Transition

Expect the FCC to allow its Communications Decency Act Section 230 rulemaking proceeding to stagnate through the transition to President-elect Joe Biden's administration, experts said in interviews. It would be unwise to move forward without a clear majority and could create unnecessary work for staff, they said.

There’s been “little time” to draft a “complex” NPRM on Section 230, and a December or January vote would “not be in the spirit of the ‘pencils-down’ mode the commission appears to be in,” said Cooley’s Robert McDowell, a former FCC commissioner. Given opposition from Commissioners Jessica Rosenworcel and Geoffrey Starks, circulating an NPRM would “create a lot of work on staff only to have the proceeding sit there for all eternity or until a Biden FCC eventually closed out the proceeding,” McDowell added.

“I think they wait out the transition and Biden starts to develop his more considered views more slowly,” emailed Dunlap Consulting CEO Leslie Dunlap: The agency never intended to “act on Section 230 as it would likely be challenged in court -- unclear they have the authority to act and certainly not in line with their actions on other advanced services.”

Some are less certain the agency won’t act under Chairman Ajit Pai. There’s nothing indicative about the agency leaving the item off its Dec. 10 agenda, said Iggy Ventures CEO Rick Lane. Pai is being thoughtful about how the commission will handle its remaining time, and “if he thinks this is going to be a worthwhile effort, he will” move forward, said Lane.

Commissioner Mike O’Rielly’s potential opposition to the rule means Pai doesn’t have the votes, and the chairman wouldn’t move forward without a clear majority, said Perkins Coie’s Marc Martin. The FCC and O’Rielly’s office didn’t comment.

Everyone, including the FCC, “hopes that this Section 230 work can go away,” said Common Sense Media Multistate Policy Director Joseph Jerome: There didn't seem to be a “huge appetite” for formal rulemaking at the FCC, and it’s likely the agency is pressured to do “more on digital divide and Title II,” which would mean Section 230 gets quietly pushed aside.

The rulemaking will likely stagnate through the rest of Pai’s tenure, said Free State Foundation President Randolph May. It’s not clear that O’Rielly wouldn’t support a rulemaking, but at least it’s “not a sure thing which way it would go, so I don’t expect them to move forward,” he said.

Biden’s “adamant” statement in support of repealing Section 230 probably won’t hold up once he takes office, said Dunlap. May disagreed, saying there hasn’t been any indication Biden changed his stance. Once the “dust settles,” Section 230 will likely rise to a priority for the next administration, he said. Biden will likely have a “more coherent approach to technology policy,” said Jerome. “Addressing online content moderation and platform power is an obvious top priority in that space.” Biden’s transition team didn’t comment.

If Republicans retain control of the Senate through the races in Georgia, it’s going to be a high hurdle to pass Section 230 legislation, said Martin. He noted Republicans and President Donald Trump want platforms to participate less in moderating content, particularly controversial views from conservatives, while Democrats seek more moderating for disinformation. “It’s hard to envision a bipartisan solution that captures both issues because they’re kind of at odds with each other,” said Martin.

Common ground is spreading between Democrats and Republicans over platform conduct, said Lane. He expects more discussion and agreement on the issue of duty of care, which would have companies taking more ownership or responsibility for content on their platforms.