The following statement may be attributed to Free State Foundation President Randolph May:
I've reviewed the analysis of the FCC's General Counsel regarding the FCC's authority to conduct a proceeding to clarify the meaning of certain ambiguous terms in Section 230, and I agree with his legal analysis. Indeed, his analysis, relying on Section 201(b) of the Communications Act, is fully consistent with the comments and reply comments that FSF filed with the Commission. See the excerpts below and the attached comments and reply comments.
The General Counsel's determination that the Commission possesses authority to conduct a proceeding to clarify the meaning of Section 230's ambiguous terms does not mean that the courts necessarily will agree that any Commissions interpretations are correct, only that courts reviewing the agency’s action will accord the agency’s interpretation substantial deference.
I hope, if the Commission does conduct a proceeding to clarify the meaning of Section 230's provisions, that those participating, regardless of their political persuasion, will not let politics and reflexive preconceptions trump sound legal analysis. And it is important to keep foremost in mind, given that Section 230 is now a quarter-century old, and today's Internet ecosystem bears little or no resemblance to that which existed at the time of Section 230's adoption, Congress, ultimately, may choose to revise or not revise the law as it sees fit.
. . . . .
Here are brief excerpts from the Free State Foundation's submissions co-authored by me and FSF Senior Fellow and Director of Policy Studies Seth Cooper:
FSF Comments: "Section 230 is part of the Communications Act of 1934, as amended. And the Commission has authority pursuant to Section 201(b) to 'prescribe such rules and regulations as may be necessary in the public interest to carry out this chapter.'"
FSF Reply Comments: "[I]t is worth noting that the Court relied on a grant of authority in Section 201(b) as empowering the Commission to issue a declaratory ruling clarifying the meaning of certain wireless siting provisions in Section 332 of the Communications Act."
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