Broadcasters, MVPDs and network programmers want the FCC to shelve plans that require disclosures about the use of AI in political ads because they’re unworkably burdensome, exceed agency authority and won’t affect digital platforms, said reply filings in docket 24-211.
Major Questions Doctrine
The FCC's reclassification of broadband as a Title II telecom service under the Communications Act is a "straightforward" violation of the major-questions doctrine, ISPs told the 6th U.S. Circuit Court of Appeals in a reply brief filed Wednesday (docket 24-7000). USTelecom, NCTA, CTIA, ACA Connects, the Wireless ISP Association, and several state telecom groups argued the provision of internet access has "always been the core driver of the information-service classification and that function remains unchanged today" (see 2409120032). The FCC "offers little more than its say-so to support its contrary view," the coalition said, adding that its "forced forbearance and strained reclassification of mobile broadband" underscores "how poorly broadband fits into the Title II scheme." The groups argued that the FCC "lacks any good explanation from departing from its prior view" that the costs of reclassification outweigh any benefits and hasn't addressed the major questions doctrine's "obvious political salience." Congress didn't clearly authorize the FCC to classify broadband as a telecom service, the groups noted, adding it should remain a Title I information service because it includes domain name systems and caching, which are "integral information-processing components." The coalition also argued the FCC lacked statutory authority to classify mobile broadband as a commercial mobile service under Title II because it's not part of the public switched network, or the ten-digit telephone network, which is "distinct" from the public internet.
The FCC's digital discrimination rules "pile overreach on overreach," said attorney Morgan Ratner on behalf of the Minnesota Telecom Alliance (MTA) and other industry groups challenging the commission's rules Wednesday during oral argument in the 8th U.S. Circuit Appeals Court (see 2407300048). The rules are based on an "unprecedented disparate impact scheme that is in many ways the broadest the federal government has ever seen," the lawyer added. None of the FCC's decisions in its order is based on a "plausible understanding" of Congress' intention.
Legislators, broadcasters, cable groups, the Heritage Foundation and civil rights groups disagree on whether the FCC can or should require disclosures for political ads created with generative AI, according to comments filed in docket 24-211 by Thursday’s deadline.
The FCC urged that the 5th U.S. Circuit Appeals Court reject Maurine and Matthew Molak's challenge of the commission’s October declaratory ruling clarifying that the use of Wi-Fi on school buses is an educational purpose and eligible for E-rate funding (see 2408300027). In a brief Wednesday, the agency argued the Molaks lack standing to bring the challenge and the agency acted within the law when it addressed school bus Wi-Fi.
The FCC defended its decision to reclassify broadband as a Title II telecom service under the Communications Act in a reply brief to the 6th U.S. Circuit Court of Appeals Wednesday (docket 24-7000). It argued the court's decision staying the order pending review was done "without showing adequate statutory support." Moreover, the motions panel lacked "the benefit of the full briefing presented here" (see 2408130001).
The Congressional Research Service predicts the U.S. Supreme Court’s June Loper Bright Enterprises v. Raimondo ruling (see 2406280043) and “uncertainty about the scope of the FCC’s authority and ability to adopt regulations in the public interest” could prompt congressional legislation "to clarify the agency’s statutory authority.” Conversely, lawmakers could also maintain “the status quo and let ambiguities regarding the FCC’s rulemaking authority be resolved by the courts,” CRS said in a Wednesday report. “There are also questions on whether the FCC may alter its rulemaking efforts in response to Loper Bright, as well as how such alterations might affect interest in legislation.” The FCC’s July FCC order that lets schools and libraries obtain E-rate support for off-premises Wi-Fi hot spots and wireless internet services (see 2407180024), April net neutrality rules and a 2023 digital discrimination order “illustrate the types of rules that might be challenged as exceeding FCC authority under Loper Bright or the major questions doctrine,” researchers said. Maurine and Matthew Molak petitioned the 5th U.S. Circuit Court of Appeals last week to review the E-rate Wi-Fi order (see 2408300027). The Molaks, whose 16-year-old son died by suicide after he was cyberbullied, say that ruling would give children and teenagers unsupervised social media access. Numerous FCC rules even before Loper Bright "were being contested by affected parties, including” the 5G Fund and next-generation 911 transition, “in both of which the FCC cites its public interest mandate,” CRS said. Researchers also noted the FCC’s 2022 notice of inquiry about ways to aid nascent in-space servicing, assembly and manufacturing companies (see 2208050023) “has come under scrutiny from interested parties.”
The ultimate makeup of the 6th U.S. Circuit Court of Appeals panel that hears the review of the FCC’s net neutrality order may not make much difference, some legal experts told us, in the wake of recent U.S. Supreme Court decisions. They doubted that the panel (docket 24-7000) will delve deeply into case law, instead simply deciding that going forward it's Congress, not the FCC, that must address any case that raises "major questions." Oral argument is scheduled for Oct. 31.
Maurine and Matthew Molak filed a petition Thursday seeking review of a July FCC order that lets schools and libraries use E-rate support for off-premises Wi-Fi hot spots and wireless internet services (see 2407180024), in the 5th U.S. Circuit Court of Appeals. The Molaks previously sought reconsideration of the July order, which three public interest groups and T-Mobile opposed last week (see 2408280029).
ISPs challenging the FCC’s updated data breach notification rules made their case at the 6th U.S. Circuit Appeals Court about why the rule should be overturned. The filing elaborates on their argument that the agency exceeded its Communications Act authorities when it adopted the rule in December. The Ohio Telecom Association (docket 24-3133), the Texas Association of Business (docket 24-3206) and CTIA, NCTA and USTelecom (docket 24-3252) brought the challenge. The 6th Circuit is considered among the most conservative federal circuits.