Pai Holding Off on Escalating CDA S. 230 Attention

FCC Chairman Ajit Pai continues to hold off advancing the agency's Communications Decency Act Section 230 proceeding (see 2012230065). He has yet to circulate any item on 230, agency officials told us. Observers say this indicates the agency won't act on the section before Pai leaves Jan. 20, when Joe Biden is sworn in as president.

Taking no action is the “sane thing to do,” said former Commissioner Michael Copps, now Common Cause special adviser-media and democracy reform. “We’ve had enough Friday night actions from the FCC, and we don’t need another hasty one now as the sun sets on this commission. There are questions not just of policy, but procedure, too, such as whether there is legal authority to opine on this.”

“There really isn't a path forward for a rulemaking that would incorporate” NTIA’s proposed changes before Pai leaves, said Jeffrey Westling, R Street Institute resident fellow-technology and innovation: Even if an NPRM gets movement, the public would still need time to comment. NTIA's petition to the FCC, per President Donald Trump's executive order, kicked off the FCC proceeding. The commission didn't comment Tuesday.

“Proceedings, once started, are eternal until they are removed,” said Brookings Institution visiting fellow Tom Wheeler, a former FCC chair. “If he doesn’t pull it, then it will be up to the new chair.”

Pai could issue an advisory opinion, guidelines or interpretation -- something short of an order that wouldn’t require a commission vote, stakeholders continue to say. Pai has the ability to call for a special meeting and a vote, which would require a week’s public notice. Offices for the commissioners didn’t comment. And Pai was noncommittal during a speech Tuesday (see 2101050064).

The FCC’s ethics counsel hasn’t identified any grounds that would bar Commissioner Nathan Simington from voting on a potential Section 230 proposal. Critics believe Simington should recuse himself from any proceeding because he worked on NTIA’s petition for the rulemaking (see 2012080067). At Trump's direction, NTIA sought an FCC rulemaking that would clarify Section 230’s scope.

Simington spoke with the FCC ethics counsel about the issue in detail, a spokesperson said in a statement. Counsel “advised that, as there is no currently-pending Section 230 matter before the Commission to be discussed with specificity, it could not comprehensively rule out potential recusal in the future. However, no grounds were identified for recusal on this topic at this time.” Simington's office stated a commitment to “full transparency and the highest ethical standards.” The agency’s top lawyer previously said the agency has the authority to interpret Section 230 (see 2010210062).

Republicans could seek a declaratory ruling, but “this wouldn't have any force of law behind it because it would only apply to agency actions and enforcement of the statute, which the FCC has no role in,” emailed Westling. “Considering that the Chairman will be leaving in a couple of weeks, and this is an extremely controversial docket, I doubt we will see any major agency action in the coming weeks."