FCC, Congress Have Many Options for Reversing Commission Policy, Ex-Officials Say

he said the commission can act on petitions for reconsideration or applications for review; issue declaratory rulings, policy statements, statutory interpretations, or other guidance; suspend enforcement proceedings or cancel pending notices of apparent liability and forfeiture; waive rules pending a rulemaking; or forbear from applying certain regulations. The agency can seek new public comment to build the record, said Solomon, who also was Enforcement Bureau chief. There's often interplay with the courts on recent decisions facing legal challenges, said Davis Wright attorney Peter Karanjia. He called it "pretty standard practice" for the FCC to file motions to hold a case in abeyance if there's a pending recon petition. The commission also can ask for a court remand, or even not defend prior decisions. He noted the FCC recently said it wouldn't defend parts of an inmate calling service (ICS) order; he called that "very unusual," but also said the circumstances were unusual, involving a 3-2 decision in which dissenting Republicans now are the majority, and a case that had been fully briefed. He said it was "interesting" that U.S. Court of Appeals for the D.C. Circuit Judge Laurence Silberman questioned at oral argument whether the FCC could, in effect, change ICS policy without going through notice and comment (see 1702060028). Karanjia said he wasn't sure there was any specific case law on the point: "So, we'll have to see." He said the FCC could issue a new declaratory ruling to reverse the 2015 broadband reclassification under Communications Act Title II, but it often "behooves" the commission to seek further public comment. Harris Wiltshire attorney Julie Veach, also a former Wireline Bureau chief, noted lawmakers could use the Congressional Review Act to undo the FCC's broadband privacy rules, appropriations "riders" or other targeted legislation to change agency policy, or simply pass new bills. She said recent FCC "information collections" are vulnerable, given the presidential change and Office of Management and Budget reviews under the Paperwork Reduction Act, which she said is a five-month process (including at the commission). When asked, no panelist commented on what net neutrality procedural path the FCC should pursue.