The FCC's Authority to Interpret Section 230 of the Communications Act

The policy issues raised by the debate over Section 230 of the Communications Act of 1934 may be complex, but the Federal Communications Commission’s legal authority is straightforward. Simply put, the FCC has the authority to interpret all provisions of the Communications Act, including amendments such as Section 230. This authority flows from the plain meaning of Section 201(b) of the Communications Act of 1934, which confers on the FCC the power to issue rules necessary to carry out the provisions of the Act. By expressly directing that Section 230 be placed into the Communications Act, Congress made clear that the FCC’s rulemaking authority extended to the provisions of that section. Two seminal US Supreme Court cases authored by the late Justice Antonin Scalia—AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366 (1999) and City of Arlington v. FCC, 569 U.S. 290 (2013)—confirm this conclusion. Based on this authority, the FCC can feel confident proceeding with a rulemaking to clarify the scope of the Section 230 immunity shield. Ultimately, the five commissioners of the FCC must decide whether this legal framework should be adopted in any future rulemaking. But in my own judgment, the FCC’s legal authority to interpret Section 230 is straightforward: Congress gave the FCC power to interpret all provisions of the Communications Act of 1934—including amendments—and Section 230 is an amendment to the Communications Act. The FCC therefore may proceed with a rulemaking to clarify the scope of the Section 230(c) immunity shield.