The FCC should shift to a fair-notice enforcement policy or risk having the courts reverse enforcement actions in the wake of the U.S. Supreme Court’s SEC v. Jarkesy (see 2406270063) and Loper Bright Enterprises v. Raimondo (see 2406280043) decisions, former FCC General Counsel and Harris Wiltshire partner Chris Wright wrote in a post on the firm's website Wednesday. Recent FCC enforcement actions –such as an April forfeiture order against major wireless carriers over personal data (see 2404290044) -- have evaded statutory limits on fines by treating single incidents as multiple acts of rule-breaking and penalized companies for actions that weren’t explicitly prohibited under the agency’s rules, Wright wrote. “Now that Chevron has been overruled," Wright anticipates "courts will review interpretations such as that without deference.” As such, “Courts will determine what the best reading of the statute is, and the Commission’s creative interpretations of the statute to generate higher penalty amounts will flunk that test.” To avoid that, FCC should propose forfeitures only when a company has violated a clear FCC rule and limit forfeiture amounts to conform to statutory requirements, Wright argued. This would also ensure the agency “has a sound basis for any forfeiture orders that it ultimately has to defend before a jury,” as it might be required to do in the wake of the Jarkesy decision. Wright was FCC general counsel in 1999 when the Enforcement Bureau was created, and is “disappointed that the Commission’s enforcement efforts have gone so far off-track.” The FCC “should correct itself sooner rather than later to avoid protracted legal challenges and judicially crafted remedies."
The U.S. Supreme Court’s recent decisions in Loper Bright Enterprises v. Raimondo, which overruled the Chevron doctrine (see 2406280043), and in SEC v. Jarkesy (see 2406270063) were “a good thing,” FCC Commissioner Brendan Carr said Wednesday during a Multicultural Media, Telecom and Internet Council webinar. Other former FCC officials disagreed sharply with the rulings that appear to expand judges' power while reining in regulatory agencies like the FCC.
It seems likely FCC commissioners will approve 3-2 a draft order and Further NPRM allowing schools and libraries to use E-rate support for off-premises Wi-Fi hot spots and wireless internet services. FCC Republicans are expected to issue dissents. Some advocates hope the item will be tweaked to address fixed wireless access and partnerships with nontraditional providers (see 2406270068). Commissioners will vote at their open meeting Thursday.
WEST PALM BEACH, Fla. -- State utility commissioners at the NARUC conference grappled Tuesday with the U.S. Supreme Court reversal of the Chevron doctrine. Loper Bright, “though not framed as a federalist decision," has "modest pro-state implications,” Wilkinson Barker’s Daniel Kahn said during a panel of telecom law experts. Earlier, an NTCA official told the NARUC Telecom Committee that his association plans to seek reconsideration of an FCC order on next-generation 911 if commissioners approve it at their Thursday meeting.
The U.S. Court of Appeals for the D.C. Circuit rejected Dish Network and International Dark-Sky Association (IDSA) arguments seeking a reversal of the FCC's OK of SpaceX's second-generation satellite constellation. In a 21-page opinion Friday (consolidated dockets 22-1337 and 23-1001), the three-judge panel said the FCC decision was "lawful and reasonably explained." Oral argument was in December (see [Ref;2312110031]). Pointing to Dish's challenge of the way SpaceX conducted its power flux-density limits testing, the judges said the commission's rules don't specify how an applicant must group its data. Moreover, Dish's evidence that a different grouping of the data shows SpaceX's system would exceed PFD limits "falls well short of a smoking gun that would require the FCC to disregard SpaceX’s self-certification," they said. Pointing to IDSA arguments that the FCC shouldn't have licensed the second-gen system without an environmental review, the court said the SpaceX license falls within the National Environmental Policy Act's categorical exclusion, so an environmental assessment is needed only if the FCC determines the license could have a significant environmental impact. The ruling said that the FCC "reasonably concluded" there wouldn't be any such impact. Deciding were Judges Neomi Rao, Michelle Childs and Douglas Ginsburg, with Rao penning the order. Nowhere does the decision cite or reference the Supreme Court's recent Loper Bright decision (see 2406280043), which ended the Chevron doctrine of courts largely deferring to federal agencies' expert decisions; nor does it cite Chevron.
The FCC said Friday it launched an investigation after AT&T revealed that a bad actor breached its network in April and accessed call and text records for nearly all its wireless customers from mid-2022 and for a single day in January 2023. The breach included calling data from customers of mobile virtual network operators using AT&T’s network. In an SEC filing, AT&T said that a suspect was apprehended.
The 11th U.S. Circuit Court of Appeals asked Gray Television and the FCC Wednesday to prepare supplemental briefs on the effects of the U.S. Supreme Court decision overruling Chevron deference (see 2406280043) on Gray’s pending appeal of a $518,000 forfeiture order. Oral argument in the 11th Circuit case was held in May (see 2405150055). The case concerns the FCC’s ruling that Gray violated an FCC rule -- often called Note 11 -- barring stations from using affiliation deals to skirt ownership limits. Gray has argued that before the FCC enforcement action, the rule was used only to bar swaps of station affiliation, while Gray’s 2020 deal involved the outright purchase of a station’s affiliation. The 11th Circuit order directs Gray and the FCC to file supplemental briefs “addressing whether and to what extent” the Supreme Court's Loper Bright Enterprises v. Raimondo ruling “impacts the analysis on the appropriate deference to afford the FCC’s interpretation of Note 11 in this case.” Broadcast attorneys told us the request for supplemental briefs is likely a positive sign for Gray -- at oral argument a three-judge panel appeared split on the FCC’s interpretation of Note 11. Gray and the FCC didn’t comment. The order gives Gray 14 days to file a supplement. Once that is filed, the FCC has 14 days for a response, and after that filing, Gray has an additional seven days for a final supplemental filing.
The Wireless ISP Association questioned whether the FCC has legal authority to adopt a draft order and Further NPRM that lets schools and libraries use E-rate support for off-premises Wi-Fi hot spots and wireless internet services. The issue is set for a July 18 vote (see 2406270068). WISPA said in light of the U.S. Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo (see 2406280043), “the Commission’s authority to adopt the rules proposed in the Draft Order may not withstand judicial scrutiny.” Loper overturned the Chevron doctrine, which gave agencies like the FCC deference in interpreting laws that Congress approved. WISPA said if the FCC moves forward anyway, it should expand the rules to also support fixed wireless connections and citizens broadband radio service deployments. A WISPA representative spoke with aides to Chairwoman Jessica Rosenworcel and Commissioners Brendan Carr and Nathan Simington, a filing Wednesday in docket 21-31 said.
The U.S. Supreme Court is "clear[ly] ... exasperated with the FCC's flip-flopping between Title I and Title II" classification of the internet, International Center for Law & Economics scholars blogged Wednesday. ICLE's Eric Fruits and Ben Sperry pointed to Justice Neil Gorsuch's concurrence in the Loper Bright decision. Gorsuch cited the FCC's changing Title II policies despite no changes in statutes governing those regulations as a weakness of Chevron deference. The current legal appeal of the agency's most-recent reclassification (see 2406030053) could be tied up in courts for years, Fruits and Sperry added. It's unclear if the FCC's most recent flip "was the last or if there will be one more."
ISPs told the 6th U.S. Circuit Court of Appeals that the U.S. Supreme Court’s recent decision in two cases overturning the Chevron doctrine means the FCC’s net neutrality order must be stayed pending judicial review (see 2407010036). The FCC said Loper Bright Enterprises v. Raimondo and the other case had no implications for its order, which reclassified broadband as a Title II service under the Communications Act.