Could the FCC Regulate Social Media Under Section 230? No.

Apparently, the White House is considering a potential Executive Order to address the ongoing-yet-unproven allegations of pro-liberal, anti-conservative bias by companies such as Facebook, Twitter, and Google. The Executive Order would require the Federal Communications Commission to create regulations designed to create rules limiting the ability of digital platforms to “remove or suppress content” as well as prohibit “anticompetitive, unfair or deceptive” practices around content moderation. The EO would also require the Federal Trade Commission to somehow open a docket and take complaints (something it does not, at present, do, or have the capacity to do) about supposed political bias claims.

I have a number of reasons why I don’t think this EO will ever actually go out. For one thing, it would completely contradict everything that the Federal Communications Commission said in the “Restoring Internet Freedom Order” (RIFO) repealing net neutrality. As a result, the FCC would either have to reverse its previous findings that Section 230 prohibits any government regulation of internet services (including ISPs), or see the regulations struck down as arbitrary and capricious. Even if the FCC tried to somehow reconcile the two, Section 230 applies to ISPs. Any “neutrality” rule that applies to Facebook, Google, and Twitter would also apply to AT&T, Verizon, and Comcast. But this niggles at my mind enough to ask a good old law school hypothetical. If Trump really did issue an EO similar to the one described, what could the FCC actually do under existing law? I want to focus on whether, under the FCC’s existing statutory authority, it can do anything like what the descriptions of the draft EO would require. Spoiler alert: not really.