Four lawsuits against the FTC’s click-to-cancel rule will be consolidated into a case before the 8th U.S. Circuit Court of Appeals, the Judicial Panel on Multidistrict Litigation (JPML) said Thursday in its consolidation order (see 2411210035 and 2411070025). NCTA, the Interactive Advertising Bureau and the Electronic Security Association filed one of the lawsuits with the 5th U.S. Circuit Court of Appeals. The U.S. Chamber of Commerce and the Georgia Chamber of Commerce filed a suit with the 11th U.S. Circuit Court of Appeals. The National Federation of Independent Business and the Michigan Press Association filed a lawsuit with the 6th U.S. Circuit Court of Appeals. Custom Alarm filed a lawsuit with the 8th Circuit. The 8th Circuit was “randomly selected” for the consolidation, the JPML said.
Senate Armed Services Committee ranking member Roger Wicker, R-Miss., said Thursday night he’s endorsing aide Olivia Trusty to be President-elect Donald Trump’s nominee for the FCC seat current Chairwoman Jessica Rosenworcel intends to vacate Jan. 20 (see 2411210028). Trusty worked on telecom issues for Wicker when he chaired the Senate Commerce Committee and Communications Subcommittee. She is among several potential contenders to become the FCC’s third Republican who lobbyists and other observers have mentioned since Trump won a second term earlier this month (see 2411060042). “There is absolutely no one more capable of serving as an FCC Commissioner than Olivia Trusty, and I am confident that President Trump and his team will come to that same conclusion quickly,” Wicker said in a statement. Lobbyists previously tipped Trusty as a potential FCC candidate in 2020 after Trump revoked then-Commissioner Mike O’Rielly’s renomination (see 2009090001). Wicker touted her as a potential Republican FTC nominee in 2022 (see 2209130065).
A plan for cutting regulations and federal institutions such as the FCC could target broadband access programs and media regulations, but it's likely that a wave of litigation will stymie it, administrative law professors and attorneys told us. Future Department of Government Efficiency (DOGE) heads Vivek Ramasawamy and Space X CEO Elon Musk laid out their plans in a Wall Street Journal opinion column. “It's not to say that maybe some of these changes shouldn't be happening, but, you know, they're taking a wrecking ball to fix something that requires a little bit more finesse than that,” said University of Idaho law professor Linda Jellum. Asked about possible DOGE cuts at the FCC, incoming FCC Chairman Brendan Carr last week told reporters, “There's no question, there's tons of room for driving more efficiency at the FCC." He didn't elaborate.
The FTC failed to meet a statutory deadline in response to a request to consolidate various lawsuits against the agency’s click-to-cancel rule, the 5th U.S. Circuit Court of Appeals said in a filing Tuesday (see 2411070025). NCTA, the Interactive Advertising Bureau and the Electronic Security Association earlier this month filed a mandamus petition with the 5th Circuit. The organizations filed one of four lawsuits against the new agency rule, which groups are seeking to consolidate within one federal court. The groups’ petition said the agency failed to forward the request for consolidation to the Judicial Panel on Multidistrict Litigation within a 10-day window of the rule’s issuance. The 5th Circuit agreed Tuesday, dismissing the agency’s argument that the 10-day window begins when the rule is published in the Federal Register, not when the rule was publicly announced, on Oct. 16. The agency failed to cite authority establishing that timeline, and the court hasn’t found legal justification, the filing said. The court granted the mandamus, forcing the agency to forward the complaints to the JPML. The court denied the groups’ request for an administrative stay, saying placing a hold on the rule is unnecessary because it’s not yet in effect. The associations have argued they’re incurring compliance costs in preparation for the rule.
Consumer complaints about unwanted telemarketing calls have declined more than 50% since 2021, the FTC said in its national Do Not Call Registry data book released Friday. "Illegal calls remain a scourge, but the FTC's strategy to pursue upstream players and equip the agency to confront emerging threats is showing clear signs of success," said Sam Levine, director-Bureau of Consumer Protection. The FTC said it received about 1.1 million complaints about robocalls in FYB 2024, down 1.2 million from the previous year. Complaints about calls related to debt-reduction, though, increased more than 85% from last year.
The FTC is breaking the law by refusing to follow statutory mandates that would allow consolidation of lawsuits against the agency’s new click-to-cancel rule, said NCTA, the Interactive Advertising Bureau and the Electronic Security Association in a filing this week (see 2410240001).
House Commerce Committee Chair Cathy McMorris Rodgers, R-Wash., urged FCC Chairwoman Jessica Rosenworcel and FTC Chair Lina Khan Wednesday to stand down from working on controversial matters during the transition from President Joe Biden to former President Donald Trump, who won a second term that morning (see 2411060042). Senate GOP leaders will likely send similar “pencils down” letters, lobbyists told us. Senate Commerce Committee ranking member Ted Cruz of Texas and other GOP leaders are likely to have their positions against controversial FCC and FTC action strengthened given the party won control of the upper chamber Tuesday night, lobbyists said. Cruz appears on course to take the Senate Commerce gavel next year, having prevailed Tuesday as part of the Republicans' victory (see 2411060001).
FCC Commissioner Brendan Carr is in prime position to take over the commission’s chairmanship in January following former President Donald Trump’s election to a second term, giving him leeway to make potentially sweeping changes on a range of high-profile communications policy matters, lawyers and other observers said in interviews Wednesday. Carr’s agenda if he becomes chairman is likely to mirror elements of the FCC chapter he wrote for the Heritage Foundation’s Project 2025 policy agenda (see 2407050015), but he may need to delay non-bipartisan actions until the Senate can confirm a Republican nominee to fill current Chairwoman Jessica Rosenworcel’s seat if she resigns, as is tradition, observers told us.
FTC Chair Lina Khan has “undermined the FTC’s bipartisan, independent mission through a relentless violation of legal, procedural, historical, and management norms,” the House Oversight Committee said Thursday, releasing a staff report on her tenure. Khan helped spearhead President Joe Biden’s executive order on competition, which ignores the pro-competitive and pro-consumer benefits of acquisitions, the report said. The agency’s decision to withdraw from its merger guidelines has expanded market uncertainty that deters pro-competitive deals, the committee said. Khan's approach is ultimately a “tax” on mergers and acquisitions, the report said. She has led several rulemaking efforts that follow the same pattern, staff said, “bulldozing agency norms, going beyond statutory authority, and regulating based on Biden-Harris ideology, not the facts.” If Khan’s policy and enforcement approach continues, “it will further undermine Americans’ confidence in the FTC’s role in protecting American consumers and the U.S. marketplace,” said Committee Chairman James Comer, R-Ky., in a statement. Her “term expired last month, and she should not be permitted to continue leading an independent agency.” Elon Musk posted Thursday on X: “She will be fired soon.” Progressive Democrats like Rep. Alexandria Ocasio-Cortez, D-N.Y., and Sen. Elizabeth Warren, D-Mass., and Sen. Bernie Sanders, I-Vt., have defended Khan's time in office (see 2410160030). The FTC didn’t comment Thursday.
The FCC could potentially use merger conditions as a replacement for regulations the courts knocked down after the overturning of Chevron deference, said Jeffrey Westling, American Action Forum director-technology and innovation policy. In a blog post Wednesday, he wrote, “If the agency fails to defend its signature rules in court, it could follow the lead of the Biden Administration’s FTC and DOJ and use merger review as a venue for regulation through condition setting.” Westling pointed to device unlocking rules as an example: the agency is considering requiring broadband providers to unlock devices within a certain time frame, but some providers -- including T-Mobile -- are already subject to such requirements because of merger conditions. These conditions let the agency “go around existing rulemaking procedures,” are often negotiated in haste, and aren’t subject to judicial review, Westling said. The agency is reviewing a number of large telecom deals, including DirecTV/Dish, Verizon/Frontier and T-Mobile/USCellular, Westling noted. “How the FCC reviews these transactions can give additional insight into how the agency may approach its merger review process after the overturning of the Chevron doctrine.” If the agency begins using conditions to block acquisitions, then Congress should act to reign in the agency, or even take away the FCC’s merger review authority. Though transactions would still be subject to FTC or DOJ review, those agencies lack the FCC's expansive authority to impose conditions that aren’t related to competition, Westling said.