Broadcast attorneys expect likely legal challenges against the FCC’s 2018 quadrennial review order will focus on two questions: Does the Communications Act allow the FCC to tighten regulations during the QR process? And do restrictions on shifting top-four network programming to low-power stations and multicast streams violate the Constitution?
The FCC didn't violate the nondelegation doctrine when it used the Universal Service Administrative Co. to calculate quarterly USF contribution factors and administer USF programs, a federal court ruled Thursday. In denying Consumers' Research's challenge of the FCC contribution factor (see 2306220062), the 11th Circuit U.S. Court of Appeals noted "all USAC action is subordinate to the FCC, and the FCC retains ultimate decision-making power."
The FCC didn't violate the nondelegation doctrine when it used the Universal Service Administrative Co. to calculate quarterly USF contribution factors and administer USF programs, a federal court ruled Thursday. In denying Consumers' Research's challenge of the FCC contribution factor (see 2306220062), the 11th Circuit U.S. Court of Appeals noted "all USAC action is subordinate to the FCC, and the FCC retains ultimate decision-making power."
The U.S. Supreme Court might opt to avoid likely fights over the FCC's digital discrimination rules or proposed Title II net neutrality rules, Andrew Schwartzman, Benton Institute for Broadband & Society's senior counselor, told Communications Daily this month. In an extensive sit-down interview, Schwartzman spoke about his long career as a public interest advocate within telecommunications, evolution of that domain, and how the FCC's net neutrality regulatory push is not merely a repeat of the past. The following transcript of our conversation was edited for length and clarity.
FCC commissioners voted 3-2 Wednesday to adopt rules aimed at curbing digital discrimination (see 2310250070). The Infrastructure Investment and Jobs Act-mandated order takes steps to facilitate equal access to broadband and investigate instances of discrimination. The commission also adopted a Further NPRM seeking comment on additional measures the FCC can take to advance equal access.
FCC commissioners divided Thursday on a vote to reestablish net neutrality rules, during the agency's first open meeting with a full commission since Chairwoman Jessica Rosenworcel took the helm (see 2310130051). Commissioners Brendan Carr and Nathan Simington voted against an NPRM seeking comment on a proposal to return to 2015 rules that classified broadband as a Title II telecom service.
Relative to the epic battles preceding the FCC’s last two votes on net neutrality rules, in 2015 and 2017, things have been relatively quiet on net neutrality since Chairwoman Jessica Rosenworcel announced she would seek a vote on an NPRM Oct. 19 (see 2309260047). There have statements for and against, but nothing compared with the fights of the past, industry observers told us.
NTIA sided with consumer groups and urged the FCC to adopt a broad definition of digital discrimination to include disparate treatment and disparate impact. In a filing posted Friday in docket 22-69, the agency said the commission should also consider actions complying with its broadband, equity, access and deployment program to be "considered presumptively lawful under the digital discrimination rules."
The 2024 presidential election shouldn’t, and likely won’t, deter FCC Democrats from moving forward on their policy agenda now that they're on the cusp of a 3-2 majority well over two years into President Joe Biden’s term, said lawmakers and former commission officials in interviews. Many expect a flurry of FCC activity once Democrat Anna Gomez, confirmed by the Senate earlier this month, formally signs on as a commissioner 2309070081). Multiple FCC-watchers and former officials pooh-poohed the conventional wisdom that the agency avoids major, controversial actions during election years.
The U.S. Supreme Court’s 6-3 decision last week in the student loan case, Biden v. Nebraska, didn’t touch on communications law, but it delves deeper into the "major questions doctrine" laid out a year ago in West Virginia v. EPA (see 2206300066). Legal experts told us the opinion, by Chief Justice John Roberts, appears to further expand when the doctrine may apply and moves the court further away from the Chevron doctrine. The case also has implications for the most controversial items addressed by the FCC, including net neutrality, experts said.