An upcoming Supreme Court decision in Biden v. Nebraska, which concerns the White House’s student loan forgiveness program, could clarify to what degree the court’s major questions doctrine (see 2302080064) could be used to challenge the actions of federal agencies such as the FCC, said HWG's Chris Wright and FCC Deputy General Counsel Jacob Lewis Thursday on a virtual FCBA panel.
Major Questions Doctrine
The U.S. Supreme Court is difficult to predict, but lawyers see reason to believe the court will use an upcoming case, Loper Bright Enterprises v. Raimondo, to clarify the status of the Chevron doctrine, legal experts told us. The doctrine underlies the authority of independent agencies like the FCC and the FTC. The court last week agreed to hear the maritime case (docket 22-451). The court hasn’t cited Chevron for several years, though it continues to be cited by lower courts.
The U.S. Supreme Court’s decision to hear a petition (docket 22-451) in a maritime case (see 2305010058) could put the Chevron doctrine on “death watch,” Free State Foundation President Randolph May blogged Tuesday. “For over a decade, I have suggested that the Chevron doctrine is in tension with fundamental separation of powers principles,” May wrote: “Now, the Supreme Court has agreed to consider overruling Chevron ‘or at least clarify’ that agency interpretations are not entitled to deference in some instances of ‘statutory silence.’ With a Court majority that is more attuned -- and devoted to -- foundational separation of powers principles, the Supreme Court's coming reconsideration of Chevron is welcome.” Experts including May have noted the evolving major questions doctrine is replacing Chevron as a test for when the courts should give regulatory agencies deference (see 2302080064). “If Chevron is overturned or even narrowed meaningfully, one consequence is likely to be curbing the power of the administrative state,” May wrote. Doing so may also “force Congress to take more responsibility for writing laws that more specifically delimit agency actions -- that is, to write less ambiguous laws,” he said.
FCC regulations on broadcasting, telephony and accessibility will “become increasingly hollow shells of themselves” unless Congress decides to what degree the FCC should “move into the app ecosystem,” said Commissioner Nathan Simington at this week’s Free State Foundation Conference. Panelists at the event, including Commissioner Brendan Carr, also discussed broadband deployment and definitions, and the agency’s spectrum authority. The FCC “isn’t currently regulating the edge space, but that doesn’t have to last forever,” Simington said.
FCC Commissioner Nathan Simington questioned the need for the FCC to revisit net neutrality rules, during a keynote interview at the State of the Net conference Monday. Simington asked whether the U.S. doesn't “have de facto net neutrality at this moment.” It’s unclear what to do on net neutrality when it already exists, he said.
The major questions doctrine, as laid out in July’s Supreme Court decision in West Virginia v. EPA (see 2206300066), is likely to play an increasingly important role in future decisions on actions by federal agencies like the FCC, experts said Wednesday during an FCBA webinar. In a 6-3 decision, justices didn’t overrule the Chevron doctrine but appeared to further clamp down on agencies' ability to regulate without clear direction from Congress.
The FCC’s persistent 2-2 tie since the beginning of the Biden administration and the resulting dearth of partisan Democratic telecom policy actions will likely blunt the level of criticism Chairwoman Jessica Rosenworcel and the commission will initially face from House Commerce Committee Republicans during the next Congress if their party wins a majority in the Nov. 8 election, said ex-panel Chairman Greg Walden, R-Ore., and other observers in interviews. But Commerce GOP oversight of the FCC would likely ratchet up significantly if and when the commission returns to a 3-2 Democratic majority, officials said. Regardless, there will be a major emphasis on whether the FCC is abiding by the Supreme Court’s embrace of the "major questions” doctrine in its West Virginia v. EPA ruling (see 2206300066), officials said.
FCC Chairwoman Jessica Rosenworcel confirmed Thursday she has received a letter from acting FAA Administrator Billy Nolen asking that the agency mandate voluntary protections for radio altimeters agreed to by Verizon and AT&T in the C band (see 2206170070) for 19 other providers who bought spectrum in the record-setting auction. “I have seen the letter” and “we are in discussions with our colleagues at NTIA,” Rosenworcel told reporters after the FCC meeting. Commissioner Brendan Carr said he was happy to look at FAA concerns, but believes the time to raise new objections has passed.
House Commerce Committee ranking member Cathy McMorris Rodgers, R-Wash., warned the FCC and FTC not to "continue to exceed Congressional authorizations" given the "limitations" on their authority highlighted in the Supreme Court's June West Virginia v. EPA ruling. The high court further clamped down on the ability of agencies like the FCC to regulate without clear direction from Congress (see 2206300066). The committee "will exercise our robust investigative and legislative powers" to ensure federal agencies don't overreach, Rodgers told FCC Chairwoman Jessica Rosenworcel and FTC Chair Lina Khan in Sept. 23 letters released Wednesday. Rodgers appears to be putting federal agencies on notice ahead of the GOP's potential regain of House control in the Nov. 8 midterm election.
Democratic leaders on the House and Senate Commerce committees aren’t fully discounting the possibility the panels could devote some time to evaluating the newly filed Net Neutrality and Broadband Justice Act during the remaining months of this Congress, but some acknowledge any serious consideration of the measure will likely have to wait until 2023 at the earliest. Democratic leaders bristled at some Republicans’ view that lawmakers unveiled the measure as a reaction to FCC nominee Gigi Sohn’s stalled Senate confirmation process (see 2206230066).