BREAKING: Pai Says FCC Will Craft Website Moderation Rules

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FCC Chairman Ajit Pai announced Thursday afternoon that his agency, in response to a request from the Trump administration, will craft rules spelling out when websites' efforts to moderate user-posted content leaves them exposed to potential legal liability.

In a statement, Pai said the agency's general counsel has advised that the FCC does have authority to interpret websites' moderation duties under Section 230 of the Communications Act, and that, "consistent with this advice, I intend to move forward with a rulemaking to clarify its meaning."

The Trump administration, via a branch of the U.S. Department of Commerce, has asked the FCC to step in and define when websites are not exempt from lawsuits over user-generated content due to perceived biases in their moderation practices, such as removing content without explanation. The administration has said it believes sites like Twitter and Facebook discriminate against conservative viewpoints, and President Donald Trump issued an underlying executive order shortly after Twitter labeled a pair of his tweets about mail-in voting as inaccurate.

The FCC has already taken two rounds of comments on the administration's request, but experts expressed skepticism that the agency can claim the authority to weigh in on the topic. However, Pai said Tuesday that his agency will move forward with a rulemaking now that "members of all three branches of the federal government have expressed serious concerns about the prevailing interpretation of the immunity set forth in Section 230."

Pai's remark apparently refers to Justice Clarence Thomas's Tuesday statement that it's time to rein in the so-called Big Tech liability shield.

Simultaneously, at least seven pending bills seek to alter some aspect of the way Section 230 functions. The Senate Commerce Committee unanimously voted earlier this month to force the heads of Facebook, Twitter and Google to testify on their content moderation practices under Section 230, signaling a further appetite for digging into the way user-generated content is handled.

The FCC's two Democrats indicated they will not support the chairman's forthcoming proposal.

"We're in the midst of an election. The president's executive order on [Section 230] was politically motivated and legally unsound," FCC Commissioner Geoffrey Starks tweeted. "The FCC shouldn't do the president's bidding here."

FCC Commissioner Jessica Rosenworcel said in a statement that "the timing of this effort is absurd" and that "the FCC has no business being the president's speech police."

Republican FCC Commissioner Brendan Carr is the only other member who has indicated he would support a Section 230 rulemaking. In a Thursday statement, he said that "moving forward at the FCC will bring much-needed clarity to Section 230 and close the loopholes that Big Tech has exploited."

Republican FCC Commissioner Michael O'Rielly, the agency's third Republican, subtly criticized the administration's push for the FCC to take up the issue, and Trump subsequently revoked his nomination to another term. His office did not immediately respond to a request for comment Thursday.

An FCC spokesperson did not immediately respond to Law360's request for details on the forthcoming rulemaking, including the timing for its release. The item is not on the agenda for the FCC's Oct. 27 public meeting, and the Nov. 18 meeting agenda has not yet been released.

The agency could kick off the rulemaking "on circulation" by sending it around to the commissioners' offices and collecting votes remotely, but it typically does not do so for high-profile items.

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