FCC Should Seek Comment on Any NTIA CDA Section 230 Petition, O'Rielly Says

O'Rielly has "been concerned as a conservative that my fellow conservatives have been stifled, that their words are being limited on certain tech platforms," he said on C-SPAN's The Communicators to have been televised over the weekend. "That doesn’t mean it's not happening on the other side of the aisle as well." He hasn't staked out a position on whether the FCC has authority here, "because I have to do my homework." The commission has "not yet received a petition from NTIA," emailed an FCC spokesperson Friday. "We will carefully review any such petition that we do receive."

He had "deep reservations they provided any intentional authority for this matter," the commissioner said of Congress. "I want to hear from those that have a voice on this matter." It's possible the statutory language may leave some room for FCC interpretation, he said. "In general, I believe that Section 230 has functioned as intended," he said. "Could it be improved? I think there are certainly some sound arguments for that."

NTIA should send its social media petition for rulemaking to the FCC as soon as possible so the commission can review and vote, Starks tweeted Thursday. The EO directing NTIA to petition for FCC regulations defining the scope of Section 230 “formed a dark cloud over the free speech online,” Starks wrote. “Unless the @FCC acts promptly, that cloud will linger through our elections.” He requested NTIA send the proposal “ASAP and not later than 30 days from the EO so we can review it and vote. I’m skeptical that there’s anything for the @FCC do to here.” NTIA didn’t comment Friday.

On the coronavirus in the U.S., "the communications network as a whole seems to be holding up quite well," O'Rielly said. "We’ll have to see if things hold." Chairman Ajit Pai's Keep America Connected pledge has "been very beneficial," O'Rielly said. Some 800 ISPs, telcos and associations agreed to not cut off service during COVID-19 through this month.

"I’ve also had some complaints in terms of the pledge," O'Rielly said. Pai's office could refer them to the Enforcement Bureau if needed, O'Rielly suggested. "At some point, they’ll be lessons learned for how this worked."

O'Rielly's office estimates he got a "couple dozen consumer complaints since the end of January." That's perhaps "slightly higher than usual for a similar timeframe, but not too far outside the range of what he receives by email directly from consumers during normal times," Chief of Staff Joel Miller wrote us. "We do our best to pass them along to the appropriate bureau staff for resolution."

The Keep Americans Connected pledge helped many "consumers and businesses stay connected during the pandemic," emailed the agency's spokesperson. The Consumer and Governmental Affairs Bureau's Consumer Complaints and Inquiries Division "has been monitoring COVID-19 related tickets since March," he added. "CICD serves complaint tickets on providers for a response and then reviews those responses. We have found that in most cases, this process has resulted in consumers continuing to have broadband service during this time."

Social Distancing

In the age of social distancing, O'Rielly's interview was conducted with him at home and the C-SPAN interviewer and the guest reporter interviewer in their own locations. It's the first new Communicators segment with the usual array of guests since NAB CEO Gordon Smith was interviewed March 18 (see 2003180036), a C-SPAN spokesperson confirmed. Then, Smith was in one C-SPAN studio, host Peter Slen in another and us in a third.

The last new show was when Slen, without a reporter co-interviewer, spoke with American Economic Liberties Project Executive Director Sarah Miller, the programmer's representative said. Her interview was March 25. The TV program "took a hiatus from a few studio productions as we adapted our operations due to the pandemic," and during that time, it re-ran past interviews, the channel's spokesperson emailed. "This week we return to fresh programs each week and the guests will be remote for some extended period."

"C-SPAN has moved our interviews of guests for studio productions to Zoom and other video connections," emailed the cable channel's spokesperson. "A few of our hosts have established set-ups from home."

O'Rielly meantime didn't think fast internet service will be deemed a utility because of its import during the pandemic. "I think we’ve far surpassed that" paradigm, he told the Communicators. "The market is much more resilient and much more responsive."

Section 230 Notebook

Also Friday, TechFreedom asked the Supreme Court to review a 9th U.S. Circuit Court of Appeals decision that “opens the door to unprecedented litigation against both developers and users of technologies that filter content online.” In Enigma Software v. Malwarebytes, the 9th Circuit ruled a company can’t participate in anticompetitive conduct and claim Section 230 protections for the harm it caused. TechFreedom asked SCOTUS to reverse the decision because it will expose schools, libraries and developers of their tools to lawsuits. “This case is about malware vendors, but the precedent puts at risk the developers and users of parental controls and any other tool used to filter Internet content,” said Senior Fellow Berin Szoka in support of Malwarebytes. The Electronic Frontier Foundation, a group of cybersecurity academics and experts and ESET also wrote in support of Malwarebytes, which is defending against Enigma’s antitrust lawsuit.