Karl Herchenroeder

With the 6th U.S. Circuit Court of Appeals ruling overturning the FCC’s latest order (see 2501020047), the U.S. has likely seen the last gasps of net neutrality, Free State Foundation President Randolph May said in the Yale Journal on Regulation. “Because of Loper Bright’s burial of Chevron deference, there’s a good chance that the ‘net neutrality’ saga, finally, may be over, at least in the courts,” May wrote. “With the impending change in the FCC’s makeup, there’s virtually no chance the agency will seek reconsideration or appeal to the Supreme Court,” he added. Other parties in the litigation “favoring regulating ISPs like public utilities could pursue those avenues, but it’s unlikely they will want to risk a Supreme Court decision affirming the Sixth Circuit decision.” Congress, not the FCC, is “the appropriate forum for the debate regarding adoption of a proper policy framework for broadband providers.” Daniel Lyons, a nonresident senior fellow at the American Enterprise Institute, also praised the 6th Circuit decision. “The court eschewed the easier path of ruling under the Major Questions Doctrine and instead tackled the complex and often contradictory language of the Communications Act,” Lyons wrote in a Thursday blog post. He saw the decision as a win for industry and innovation. The FCC can no longer “impose a one-size-fits-all business model on broadband providers, allowing them to explore innovations like 5G network slicing without fearing regulatory backlash,” he said: ISPs “are no longer at risk of rate regulation and other regulatory requirements that come with Title II classification, a category originally designed to discipline the telephone system.”

The FCC increased application fees to reflect a 17.41% increase in the Consumer Price Index, said an order in Wednesday’s Daily Digest. The order was unanimous, with FCC Commissioner Brendan Carr, President-elect Donald's Trump pick for chairman, reluctantly concurring, according to a statement. The increase “means some applications now cost hundreds, or in some cases, thousands of dollars more than they did just a few years ago,” Carr said. “It is difficult to support what is ultimately a direct tax increase on startups and other job creators at a time when they are already battling rising costs from inflationary policies,” but “the law does not provide the FCC with much discretion in terms of how these fees are assessed.” The agency is required to adjust the fees to reflect the CPI in every even-numbered year. The 2022 increase reflected a rise in the CPI of 11.6%. The higher fees mean a major change for full-power TV stations has risen from a $4,755 application fee to $5,000, according to the 2022 and 2025 orders. The application fee for a petition for declaratory ruling for a non-geostationary orbit foreign-licensed space station to access the U.S. market rose from $16,795 to $17,670, the orders said.

Meta’s announcement Tuesday that it will scrap fact-checking on Facebook is a “good step in the right direction,” said FCC Commissioner Brendan Carr in a post on X. “I look forward to monitoring these developments and their implementation. The work continues until the censorship cartel is completely dismantled and destroyed.” Carr, President-elect Donald Trump's choice to head the FCC, wrote to Facebook questioning its use of fact-checkers (see 2412160052), and has previously named fact-checkers and social media companies as components of the "censorship cartel," a term that he has frequently used in interviews and social media posts. Other components of the cartel include President Joe Biden’s administration, advertising agencies and European governments, Carr has said. In a Facebook video Tuesday, Meta CEO Mark Zuckerberg announced that the company would shift to using crowdsourced fact-checking, similar to X. Carr credited Trump with causing the change at Meta. “President Trump’s resolute and strong support for the free speech rights of everyday Americans is already paying dividends,” he said. During a news conference Tuesday, Trump responded “probably” when asked if Meta’s shift was a response to his threats, which included calling for Zuckerberg to be imprisoned for life. “Meta is a private company that can decide how it manages its platform,” responded FCC Commissioner Anna Gomez in an X post Tuesday. “However, under the First Amendment, government threats to private companies over speech can have a chilling effect and are dangerous.” "As our database of false narratives continues to demonstrate, Meta has perennially been a home for Russian, Chinese, and Iranian disinformation," said Gordon Crovitz, co-CEO of fact-checking service NewsGuard, in an emailed statement. "Now, Meta apparently has decided to open the floodgates completely."Public interest groups condemned Meta’s changes. “Everyone should be concerned when major technology firms and their billionaire owners kowtow to a leader like Trump who is intent on undermining the checks and balances that are fundamental to a healthy democracy,” Free Press Senior Counsel Nora Benavidez said in a news release. Said Common Sense Media CEO James Steyer, “With this announcement, Mark Zuckerberg's playbook is as clear as day: Protect Meta's bottom line and cozy up to political leaders while leaving users to fend for themselves.” Ishan Mehta, Common Cause Media and Democracy program director, said, “Americans deserve to know the truth, and Meta’s move to end its third-party fact checking opens the door to endless political lies and disinformation.” Meta’s recent decision to move away from third-party fact-checking is a stark reminder of the growing challenges posed by misinformation online," NAB said in a blog post Tuesday touting the reliability of broadcast news. "While Big Tech platforms operate without any constraints, local stations are bound by regulations that haven’t kept pace with the marketplace," it added. "Policymakers must act to modernize these rules, leveling the playing field so local stations can continue providing the high-quality journalism communities depend on."

Cable broadband subscriber losses should moderate this year, with fiber and fixed wireless providers' gains plateauing, LightShed Management wrote Monday. In addition, there could be renewed M&A interest in cable, LightShed said, triggered by slower growth across all connectivity companies and favorable regulatory sentiment. However, none of the three major wireless carriers seems a likely buyer. Moreover, LightShed sees the possibility of a U.S. Supreme Court stay preventing the TikTok divestiture/ban from taking effect Jan. 19. The Trump administration will likely devise terms that safeguard users' data security and mitigate national security concerns. Also expect rollout of a more-robust direct-to-device service via SpaceX and T-Mobile as additional satellites are launched and FCC power restrictions are resolved, it said. LightShed predicted the next FCC will provide a waiver of the power limits. It said with more satellites and higher power, the service could extend to IoT. After the Skydance/Paramount deal closes in the first half, Paramount will likely slash its linear cable network operations, shedding some networks, LightShed predicted, and it will invest those savings into streaming. A Trump administration ban on pharmaceutical advertising on TV could drive TV station group M&A, it added.

Deputy NTIA Administrator Sarah Morris on Monday defended the agency's pace in administering the BEAD program (see 2412120066). The agency has moved "at breakneck speed" to get funding out the door and is making "tremendous strides," Morris said during an American Association for Public Broadband webinar. "We are working with the program that Congress gave us and trying to do this work as quickly as possible, as carefully as possible, and do it in a way that itself is innovative when it comes to federal programs." Citing "many important steps" in the BEAD process, Morris noted that the agency was ahead of schedule on funding allocation announcements and state challenge processes are being developed. "The states are essentially determining the implementation strategy for the funding that they've been given," she said. Morris dismissed concerns about programmatic changes under the incoming Trump administration. NTIA will continue supporting states and "keep this program moving, so we can hand them off to the next administration in the strongest shape that's absolutely possible." She added, "We have so much momentum right now ... We can disagree about the details of implementation and where others might feel we need to make course corrections at the margins, but fundamentally ... these programs are just so important, so critical, so intertwined and so far along, that the best path forward is to just keep up the momentum that we've built." Morris encouraged those feeling anxious about BEAD's future to engage with their state broadband offices and to educate lawmakers on how BEAD and other NTIA broadband grant programs were designed to complement each other. The agency is reviewing applications for its digital equity competitive grant program, she noted.

FCC Chairwoman Jessica Rosenworcel circulated an NPRM Monday to start auctioning AWS-3 spectrum that will fully fund the FCC’s Secure and Trusted Communications Networks Reimbursement Program (see 2412240036). Congress agreed to send an additional $3.08 billion for carriers to rip and replace unsecure network equipment from Chinese companies Huawei and ZTE, though questions remain about whether that amount will suffice since the program's total is based on cost estimates filed years ago (see 2412310016). The auction would be the first since the agency’s general auction authority expired in March 2023. Rosenworcel is seeking approval of the NPRM through an electronic vote by commissioners. The NPRM “would propose updates to the service-specific competitive bidding rules to grant licenses for spectrum in the FCC’s inventory in the AWS-3 spectrum bands (generally the 1695-1710 MHz, 1755-1780 MHz, and 2155-2180 MHz bands),” said a news release. The FCC assigned the majority of AWS-3 licenses in an auction that ended Jan. 29, 2017. “Nevertheless, there remains spectrum in these bands that is not currently licensed due to various circumstances,” the release said: “Pursuant to the Congressional mandate, the Commission will now offer licenses for the unassigned AWS-3 spectrum in a new auction.” The FCC said the NPRM also would propose to update definitions of small and very small businesses “to conform with the Small Business Act’s five-year lookback period that has been used in recent spectrum auctions.” Rosenworcel cited Salt Typhoon, the Chinese government-associated effort at hacking U.S. telecom networks (see 2411190073), in seeking quick action on the NPRM. "With ‘Salt Typhoon’ and other recent incidents, we are all acutely aware of the risk posed by Chinese hackers and intelligence services to our privacy, economy, and security,” Rosenworcel said. “I am confident that the FCC’s world-leading and award-winning auction team will meet this important moment.” Rosenworcel, a Democrat, plans to leave the FCC in two weeks, when Republican Commissioner Brendan Carr is expected to replace her as chair.

Parts of the FCC’s website appeared down Friday. Throughout much of the day, attempts to access the Daily Digest yielded the messages: “FCC Website Error" and "An unexpected error occurred with your request. Please check back later.” An agency spokesperson didn’t comment.

Two law professors told the U.S. Supreme Court on Friday it should reverse the 5th U.S. Circuit Court of Appeals' 9-7 en banc decision, which found the USF contribution factor is a "misbegotten tax.” SCOTUS has agreed to hear the case, FCC v. Consumers’ Research, which potentially has broad implications, experts say (see 2412100060). Look no further than a 1938 brief by then-Solicitor General Robert Jackson, urged Gerard Magliocca, professor at the Indiana University Law School, and John Barrett, professor of law at St. John’s University, in an amicus brief Friday. They wrote that Jackson, later appointed to SCOTUS, “proposed an elegant solution to the issue now before the Court" when he argued in Currin v. Wallace that "the non-delegation doctrine applies only when Congress delegates power to the President" and "that congressional delegations to federal agencies, independent boards, and private actors are not subject to" the doctrine. Acknowledging that SCOTUS decided Currin without addressing Jackson's theory, they said the court should read his "thoughtful brief" and reverse the 5th Circuit.

Sens. Ed Markey, D-Mass., and Ron Wyden, D-Ore., slammed the ruling of the 6th U.S. Circuit Court of Appeals (see 2501020047) vacating the FCC’s April net neutrality order. In a statement released Thursday, the lawmakers said, “Without net neutrality, consumers, small businesses, and innovators alike will face increased costs, reduced choice, and less competition. It is a lose-lose-lose.” They added, “This ruling upends the fundamental principle that internet service providers should not act as gatekeepers, favoring certain users, content, or services over others." Markey and Wyden said the decision also shows why the U.S. Supreme Court was wrong when it overturned the Chevron doctrine. The opinion “makes basic errors about communications technologies, neatly illustrating why expert regulators, not judges, are best positioned to make complex public policy decisions.” Andrew Schwartzman, senior counsel at the Benton Institute for Broadband & Society, in an email wrote that the opinion “misreads” the 1996 Telecom Act “in finding that broadband internet service is not subject to the regulatory requirements of Title II of the Communications Act.” Among other concerns, “that deprives the FCC of the power to protect national security, insure that competitive broadband suppliers can have access to necessary distribution outlets and endangers wireless access programs for low-income consumers.” The “good news” was in the judges didn’t do, Schwartzman said. The three-judge panel “gave a narrow reading to the impact of the recent Supreme Court’s Loper Bright decision overruling the Chevron doctrine,” he said. The court also didn’t “rely on the carriers’ ‘major question doctrine’ arguments, so that the FCC will retain the power to regulate various aspects of broadband service without future Congressional action.” But Seth Cooper, Free State Foundation director-communications policy studies, said the court offered a “straightforward reading” of the Communications Act. The opinion was “refreshing because it shows how traditional tools of statutory interpretation can be used to resolve even seemingly technical questions like the regulatory classification of broadband,” Cooper emailed: “It’s the type of decision that eluded us so long as lower courts were subject to the ‘Chevron doctrine’ and effectively required to rationalize even far-fetched agency interpretations or re-interpretations of supposed ambiguous statutory provisions.”

Consumers’ Research asked the 5th U.S. Circuit Court of Appeals to vacate the FCC’s USF contribution factor for Q1 of this year, set by the agency last month. The group, and its allies, had already asked the FCC to zero out the contribution factor (see 2412130016), calling it “an unconstitutional tax raised and spent by an unaccountable federal agency.” The 5th Circuit earlier found in a 9-7 en banc decision that the contribution factor is a "misbegotten tax.” That decision is before the U.S. Supreme Court (see 2412100060). “Congress’s standardless delegation to the FCC of legislative authority to raise and spend nearly unlimited money via the Universal Service Fund violates Article I, section 1 of the U.S. Constitution,” said the filing with the court: USF charges “are taxes and therefore Congress’s standardless delegation to the FCC of authority to raise and spend nearly unlimited taxes violates Article I, section 8” of the Constitution.