Pai Probably Won't End Chairmanship With CDA S. 230 Ruling

The Senate passed the conference FY 2021 National Defense Authorization Act Friday without language to repeal or revamp Section 230, setting up a potential showdown with President Donald Trump over his threat to veto the measure if it didn’t address the matter (see 2012020068). The measure includes other telecom and tech provisions (see 2012040043), including ones to hinder Ligado’s L-band plan, and it has the text of the Spectrum IT Modernization Act (HR-7310/S-3717).

Lawyers said Chief of Staff Matthew Berry, in particular, opposes action. The FCC didn’t comment.

Outgoing Commissioner Mike O'Rielly, whose concerns about FCC action on Section 230 were considered to be the reason Trump withdrew his renomination, repeated those misgivings during a Friday Future of Speech Online event. O'Rielly is expected to depart soon, when Simington is sworn in. "Everyone’s for the First Amendment until it gets really difficult," but "you can’t just ignore it," O'Rielly said.

TechFreedom Senior Fellow Berin Szoka, who described last week how an interpretive order could be a path to action (see 2012080067), told us Friday such an order seems unlikely. “The agency can issue an interpretive rule without notice and comment, but such a rule would have no binding legal effect,” Szoka emailed. “It’s a procedural short-cut to a legal dead-end.” A rulemaking has "the force of law behind it, while a declaratory ruling would probably only have persuasive authority in private litigation,” said Jeffrey Westling, R Street Institute resident fellow-technology and innovation.

An order now “would be one of the most unusual transition/inaugural activities by a chairman and it would be unlike Ajit, who generally, over the last couple of years, has not done anything this provocative,” said telecom consultant Larry Irving, former NTIA administrator. “Having worked on the last two [Democratic] transitions, this would be unlike anything I saw or anything I could have conceived of during a transition period.” Pai has been “trying to mend fences across party lines over the last couple of years,” he said.

“I'm not sure of the likelihood of the FCC moving on this in January. However, I'm confident there will be an effort to lobby the agency to do something before the transition occurs,” said Targeted Victory Vice President-Public Affairs Nathan Leamer, a former Pai aide. Szoka’s proposal, sketched out on Twitter, “has certainly triggered advocates for Section 230 reform who would have otherwise not thought they had a chance,” Leamer said.

It would be surprising for the FCC do anything significant with the proposal before Jan. 20, said Arent Fox's Alan Fishel. “That’s just not the way that FCC typically would handle something at this point in the process. It absolutely goes against normal procedures. ... They’re out of time.” The commission usually doesn’t take any controversial action during a lame-duck session, he noted: “You never can say never, but it would be highly unusual.”

“As this Congress and the Trump presidency wind down, Washington is experiencing a renewed and energetic push for a quick resolution to the Section 230 debate,” said Cooley’s Robert McDowell. “Almost always, addressing complex and controversial issues in a rushed manner at the end of a Congress and presidency does not make for sustainable public policy,” he said: “That said, it is anybody’s guess how this dramatic finale to this aspect of the surreal year of 2020 concludes.”

NDAA

It’s unclear whether Republicans will move in large enough numbers to override a Trump veto of the NDAA, though the margins in both chambers for passage are well above the threshold. The Senate voted 84-13 for the measure; the House approved it 335-78 earlier in the week. Seven Senate Republicans voted against the NDAA, as did six members of the Democratic caucus. The White House didn’t comment on whether Trump planned to actually veto the measure.

Senate Armed Services Committee Chairman Jim Inhofe, R-Okla., said on the floor that he agrees “wholeheartedly” with Trump about the need to address Section 230, but “you’ve got to have a defense authorization bill. Our kids in the field demand it.” It doesn’t make sense to address Section 230 in the NDAA because the issue has “nothing to do with the military,” Inhofe said.

Republicans who voted against the NDAA said their opposition to the measure and their likely support for sustaining a Trump veto stems directly from the Section 230 issue. There’s “no reason that we can’t do Section 230 in the NDAA” given “all the other stuff they throw in there” that’s not related to DOD matters, Sen. John Kennedy of Louisiana told reporters. “If you don’t want to” address the issue in the NDAA, “then tie an agreement to put it into” an FY 2021 appropriations omnibus measure under negotiation. Opposition from Inhofe and others to putting Section 230 language into must-pass bills like the NDAA is entirely about “the power of many of these social media platforms,” Kennedy said.

“I hope” the NDAA “will be changed” from the conference version the Senate passed Friday due to the lack of Section 230 language and other matters, said Sen. Josh Hawley of Missouri. “It’s not a good product” at this point. Hawley failed to attach language to the now-withdrawn Online Content Policy Modernization Act (S-4632) that would establish a private right of action for individuals to sue platforms (see 2012100072).

The NDAA was “a missed opportunity to advance much-needed reforms” to Section 230 “as called for by” Trump, said Sen. Ted Cruz of Texas in a statement. He said the measure would have been a perfect vehicle to address the issue due to “Big Tech’s mounting and flagrant abuses of power to suppress free speech, silence dissent, and undermine the integrity of our elections and the future of democracy.” His office also cited the anti-Ligado language, which it said would “thwart” FCC “management of spectrum.”