The FCC’s order on broadcasters' collection of workforce diversity data exceeds the agency’s authority, violates the First and Fifth Amendments, and runs afoul of the U.S. Supreme Court’s recent ruling ending judicial deference to regulatory agencies, said a brief from the National Religious Broadcasters, the American Family Association and the Texas Association of Broadcasters. The groups filed the brief Wednesday in the 5th U.S. Circuit Court of Appeals. The order’s requirement that broadcasters make their workforce diversity data available online is intended “to pressure broadcasters to engage in race- or sex-based hiring practices,” it said, concluding that the order “is fatally flawed in multiple respects and should be vacated.” The FCC didn’t comment.
Low-power television broadcasters and NAB don’t think the FCC should broadly apply online public file requirements to LPTV, said a host of reply comments filed in docket 24-147 by Monday’s deadline. LPTV commenters also called for looser relocation limits and power increase options. In addition, LPTV company Venture Technologies argued that the U.S. Supreme Court’s ruling against Chevron deference means the FCC must allow more stations to convert to Class A status. “We believe that the FCC’s failure to allow virtually any new Class A stations for more than two decades is inconsistent with the principles established by the recent Supreme Court decision in Loper Bright Enterprises et al. v. Raimondo,” Venture said.
ASPEN -- The president should have broad discretion without interference from Congress to remove commissioners at independent agencies when they commit offenses the White House deems "fireable," FTC Commissioner Andrew Ferguson said Tuesday.
House Commerce Committee Chair Cathy McMorris Rodgers of Washington, Senate Commerce Committee ranking member Ted Cruz of Texas and six other top GOP lawmakers urged the 6th U.S. Circuit Court of Appeals Monday to strike down the FCC’s April net neutrality rules and reclassification of broadband as a Communications Act Title II service (see 2408140043). FCC Chairwoman Jessica Rosenworcel separately told Rodgers, Cruz and other Republican lawmakers she remains “confident that the Commission’s rules and decisions will withstand judicial review under the [U.S.] Supreme Court’s decision in Loper Bright Enterprises v. Raimondo and other applicable precedent.”
As industry looks beyond the Biden administration (see 2408130062), the FCC could have some busy months ahead of it. A pair of commissioner meetings is scheduled before the November elections, with at least two more before the inauguration of the next president. While past commissions have focused on less controversial items ahead of a presidential contest, which likely won’t be the case this year, industry officials say. Vice President Kamala Harris has emerged as the slight front-runner for the presidency since President Joe Biden left the race based on most recent polls, although the election is expected to be tight.
Don’t expect major daylight between a Kamala Harris administration and the Joe Biden White House on major communications policy issues, industry and policy experts predicted. Much focus and effort would center on defending the FCC's net neutrality and digital discrimination orders in the current federal circuit court challenges, as well as pursuing net neutrality rules, they said. Less clear would be the nature of the relationship between Harris' White House and Big Tech. The Harris campaign didn't comment. Deregulation and undoing net neutrality are considered high on the to-do list for the administration of Republican presidential nominee Donald Trump if he's elected (see 2407110034).
The 11th U.S. Circuit Court of Appeals should apply the U.S. Supreme Court’s recent ruling on agency enforcement actions to the FCC’s $518,000 forfeiture order against Gray Television, as well as SCOTUS’ ruling against Chevron deference, Gray said in a motion and supplemental reply brief Wednesday. The court previously ordered that the FCC and Gray file briefs weighing in on the application of the high court’s Loper Bright ruling against Chevron deference but didn’t do so for SEC v. Jarkesy, which is seen as potentially requiring jury trials for many agency enforcement actions. Jarkesy “raises the fundamental question of whether the FCC had the authority in the first place to conduct the proceeding that led to the forfeiture the FCC asks the Court to uphold,” Gray said in a motion. “Under these circumstances, Gray proposes as the most prudent course of action supplemental briefing on whether Jarkesy invalidates the FCC’s Forfeiture Order.” If the 11th Circuit were to find that the FCC’s claim against Gray is similar to the SEC forfeiture in Jarkesy, “then not only did Gray have the right to a jury trial, but also the Seventh Amendment prohibited Congress from assigning adjudication of the claim to the FCC,” Gray said. The court must also consider whether the FCC has statutory authority over Gray’s purchase of a network affiliation under Loper Bright, Gray Television said in a supplemental reply brief Wednesday. The FCC had argued that the court shouldn’t take up the agency’s authority because it was outside the scope of the supplemental briefs the court ordered (see 2408080052) and wasn’t previously raised in the proceeding by Gray. The Loper Bright opinion instructs courts to first determine the boundaries of an agency’s authority before ruling on whether an agency has engaged in “reasoned decision-making” within that authority, Gray said. The FCC also raised the issue of its statutory authority by discussing it in the forfeiture order it issued against Gray, Wednesday’s filing said. The Loper Bright decision “commands” that federal courts “must review all questions of law without deference to the agency whose action is under review,” Gray said.
The U.S. Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo (see 2406280043) doesn’t foreclose the FCC's ability to act on net neutrality and other important public issues, Stephanie Joyce, senior vice president-chief of staff at the Computer & Communications Industry Association, said during a Broadband Breakfast webinar Wednesday.
The U.S. Supreme Court’s decision eliminating Chevron deference shouldn’t affect the 11th U.S. Circuit Court of Appeals' approach to Gray Television’s appeal of an FCC $518,000 forfeiture order, the agency said in a supplemental brief Wednesday. The 11th Circuit requested supplemental briefs from the FCC and Gray after SCOTUS’ Loper Bright v. Raimondo decision (see 2407110058). The agency applied the best reading of its rule against affiliate swaps and so doesn’t require special deference for the court to rule in its favor, the FCC said. Gray’s argument that its purchase of a station affiliation in Anchorage didn't “result” in a top-four duopoly because Gray already owned such a duopoly “is not the best or most natural reading” of the text of the FCC’s rules, the agency said. The court should also favor the FCC’s interpretation of its own rules under another SCOTUS precedent that wasn’t affected by Loper Bright, Kisor v. Wilkie, the FCC said. Kisor requires that the court consider a regulation as if there were no agency interpretation, but if ambiguity remains, it allows the court to conclude that the agency interpretation may be appropriate. Gray has argued that the Loper Bright decision invalidated Kisor precedent. “This Court is not the proper forum to revisit binding Supreme Court precedent,” the FCC said. The 11th Circuit shouldn’t consider Gray’s arguments that the FCC doesn’t have statutory authority over the sale of a station’s affiliation because Gray didn’t raise the argument earlier in the case and because it's outside the scope of the supplemental brief the court requested, the agency said. Gray “improperly expanded the scope of the supplemental briefing, and the court may not reach arguments on which the FCC had no ‘opportunity to pass’ in the administrative proceedings,” the FCC said.
CTIA and the U.S. Chamber of Commerce backed AT&T’s challenge of the FCC's fine for data violations, filing amicus briefs in the 5th U.S. Circuit Court of Appeals. On a 3-2 vote in April, commissioners imposed fines against the three major wireless carriers for allegedly not safeguarding data on customers' real-time locations years earlier (see 2404290044).