The 8th U.S. Circuit Court of Appeals judges didn’t appear to greatly favor either side in arguments Wednesday on the FCC’s 2018 quadrennial review order, but broadcast industry officials and attorneys said they saw it as a positive sign that the panel apparently embraced the idea that broadcasting is under threat. Aren’t FCC rules intended to promote viewpoint diversity “short-sighted” if they lead to broadcasters going out of business and no longer offering news? asked Judge Duane Benton of FCC attorney James Carr. “Isn’t AM radio dying?” Benton asked at another point. “I hear they’re not even going to put it in new cars.”

Lawyers for the Schools, Health & Libraries Broadband Coalition and the Benton Institute for Broadband & Society were cautiously optimistic Wednesday that their side would prevail at the U.S. Supreme Court in support of the FCC and the USF contribution factor in FCC v. Consumers’ Research. But they also expect a divided decision. SCOTUS is to consider the case March 26.

The FCC’s “In Re: Delete Delete Delete” proceeding could draw a huge number of response filings and is expected to require numerous subsequent rulemakings to lead to actual changes, said industry officials and academics. “Every single regulated entity will sit on Santa's lap and ask for presents,” said TechFreedom Senior Counsel Jim Dunstan. “It will take months just to sift through all the asks and determine how to proceed.”

A group of more than 50 unions, public interest and consumer groups released a statement last week opposing White House control of independent agencies like the FCC. Meanwhile, major telecom and media trade associations and companies have been mostly quiet concerning the Donald Trump administration's actions to assert control of independent agencies and its dismissal of Democrats serving on federal commissions.

President Donald Trump’s latest norm-busting executive order (see 2502180069) directing the FCC, among other "so-called independent" agencies and executive branch bodies, to submit regulatory actions to the White House before they're published in the Federal Register could complicate Brendan Carr’s push to be an active chairman at the FCC, industry experts said Wednesday.

Like staff at nearly every agency in Washington, FCC employees seem nervously waiting for the next moves of the Donald Trump administration and Elon Musk, even as they hunker down and continue doing their jobs, industry sources tell us. The FCC also appears to have taken further steps to comply with the White House’s executive order banning diversity, equity and inclusion (DEI) efforts after an initial wave of announcements immediately after Chairman Brendan Carr took office.

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.”

FCC Commissioner Brendan Carr’s recent warning letter to Disney CEO Bob Iger (see 2412240021) appears politically motivated, could be read as a reversal of Carr’s past stances on sticking to the text of FCC rules and evokes the long-defunct fairness doctrine, according to former FCC commissioners, academics and attorneys we interviewed. President-elect Donald Trump has selected Carr to head the FCC.

FCC Chairwoman Jessica Rosenworcel appears intent on closing several outstanding wireless issues in her final weeks at the helm, but industry experts said it appears unlikely she will tackle controversial items or launch anything. That approach differs from the way former FCC Chairman Ajit Pai conducted business at the end of the first Donald Trump presidency.

The extent to which the U.S. Supreme Court decides the USF challenge on theoretical rather than practical grounds could have major implications for whether the court issues a decision that overturns the program's funding mechanism. The court said last week it will hear a challenge to the 5th U.S. Circuit Court of Appeals' 9-7 en banc decision, which found the USF contribution factor is a "misbegotten tax.” Consumers' Research challenged the contribution factor in the 5th Circuit and other courts.