Free State Foundation President Randolph May said this week that Senate Commerce Committee member Sen. Amy Klobuchar, D-Minn., was wrong to argue (see 2412120066) that the U.S. Supreme Court’s July overturning of the Chevron doctrine in Loper Bright v. Raimondo was detrimental because it removed consistency from the regulatory process. Klobuchar made the argument during a Broadband Breakfast event earlier this month. The lawmaker “is right that stability in the law is important for businesses so they can intelligently plan investments and judiciously execute other business decisions,” May said Tuesday in a Washington Times opinion piece. But she “and others who take the same line should know better, especially those … who are familiar with communications law and policy. They have witnessed firsthand how reliance on the Chevron doctrine has promoted instability in the legal regime governing broadband internet providers under the guise of ‘net neutrality.’ The back-and-forth ‘switcheroos’ between the imposition of heavy-handed public utility regulations and a light-touch regulatory regime is a prime example.” Each time there has been a Democratic majority over the past decade, the FCC “has adopted stringent utility regulations for broadband providers,” while “each time the Republicans regained control, the FCC reinstituted a deregulatory regime,” May said: That’s likely to happen again when President-elect Donald Trump returns to office Jan. 20.
The 9th U.S. Circuit Appeals Court on Tuesday rejected a petition for review that China Unicom (Americas) brought seeking to overturn the FCC’s 2022 decision revoking the company’s Section 214 authority to operate in the U.S. (see 2201270030). The decision was 2-1 with Judge Daniel Collins writing a majority opinion supported by Judge Kenneth Lee. Judge Carlos Bea dissented. The majority held that the commission “correctly interpreted its authority under the Communications Act” and that the “grant of authority to ‘issue’ certificates to telecommunications carriers must be understood as carrying with it an implied incidental authority to revoke such certificates.” The court reviewed the FCC’s authority under the U.S. Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondi, which overturned the Chevron doctrine, and found that the revocation was within the FCC’s discretion to act (see 2406280043). “There was no indication in the statutory text or structure that Congress denied the FCC any relevant authority to revoke a carrier’s [Section] 214 certificate,” the majority held. “The Lord giveth and the Lord taketh away,” Bea wrote in his dissent: “Today, the majority declares that” the FCC “may act as the Lord in canceling telecommunications certificates. … I disagree. Unlike the majority, I find myself constrained by the text of the statute and a regard to separation of powers principles of our Constitution to resolve this case otherwise.” All three judges were Republican appointees -- President George W. Bush appointed Bea and President Donald Trump appointed Lee and Collins.
The Government Wireless Technology & Communications Association (GWTCA) and state groups asked the FCC to delay a requirement that current 4.9 GHz licensees provide it with granular licensing data not later than June 9, or face cancellation of their licenses. Proponents of the delay were optimistic on Monday that the FCC would approve the stay.
The U.S. Supreme Court decision doing away with Chevron deference won’t grind the next FCC to a halt but could prompt congressional action on the USF, former FCC officials said during panel discussions Thursday at Broadband Breakfast’s "Broadband in the Trump Administration" event.
Two groups are challenging the FCC’s October order giving the FirstNet Authority, and indirectly AT&T, use of the 4.9 GHz band (see 2410220027). The Coalition for Emergency Response and Critical Infrastructure (CERCI) is challenging the order, while the Public Safety Spectrum Alliance (PSSA) is protesting aspects of it. Both recently filed petitions for review in the U.S. Court of Appeals for the D.C. Circuit.
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.
The incoming Republican administration and Congress will likely work at rolling back many of the current FCC’s policies through a combination of agency action, court decisions and the Congressional Review Act (CRA), attorneys and analysts told us in interviews. The CRA's threat also will likely limit the current FCC's agenda, they said. “The CRA is kind of looming over anything the FCC wants to try to do before the administration switches over,” said Jeffrey Westling, American Action Forum director-technology and innovation.
A three-judge appeals court panel hearing a challenge (docket 24-7000) of the FCC's Title II reclassification of broadband questioned industry groups and the agency Thursday about the major questions doctrine (see 2409030030). Oral argument was held at the 6th U.S. Circuit Court of Appeals, where judges also questioned the relationship between the doctrine and Chevron deference, as well as the statutory interpretation of the Communications Act and the FCC's changing positions over time.
Courts still “respect” technical expertise at agencies like the FCC despite the U.S. Supreme Court’s reversal of the Chevron doctrine, Chairwoman Jessica Rosenworcel said Friday.
Digital First Project Executive Director Nathan Leamer on Wednesday said whoever chairs the FCC during the next administration should take on a more forceful role in advocating for Congress to renew the commission’s lapsed spectrum auction authority. Leamer, who served as an aide to former FCC Chairman Ajit Pai, said during a Georgetown University Center for Business and Public Policy webcast that whichever party wins the White House Nov. 5 will reexamine broadband affordability issues. He believes the FCC will have to brace for the impact of potential federal court rulings striking down its recent orders reclassifying broadband as a Communications Act Title II service and instituting anti-digital discrimination rules.