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'Judicial Activism'

Carr Welcomes SCOTUS Shift to Major Questions Doctrine

FCC Commissioner Brendan Carr said during a Federalist Society panel discussion Friday that the Supreme Court’s growing focus on the major questions doctrine and the expected death of the Chevron doctrine (see 2306290063) has potential benefits in forcing lawmakers to make hard policy decisions.

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The Chevron doctrine, with its focus on agency deference, creates “an incentive structure in Congress” for lawmakers to approve middle-of the-road legislation, where they “generally agree that the outcome should be somewhere” within wide bounds and delegate authority to an agency “to figure it out,” Carr said. “That creates a dynamic that is the opposite of what happens” under the major questions doctrine, he said. “There is a policy value” in the major questions doctrine “of forcing, to some extent, elected representatives to do their job,” he said. Chevron makes it easy for members of Congress “to go to their corner and not compromise,” he added.

Carr also slammed the proposed digital discrimination rules set for a commission vote Wednesday (see 2310060067). The FCC is required to act on rules by that day under Section 60506 of the Infrastructure Investment and Jobs Act.

The FCC has taken this one-page law and read it as giving us, effectively, unbounded authority over every single type of internet service and infrastructure in the country,” Carr said. He suggested the proposed rules' tenor reflects the outsized influence of a “very progressive wing” of the Democratic Party on administrative agencies. While the FCC and other agencies are engaging in “regulatory excesses," Carr is “very confident” the rules will be “reined back in by the Supreme Court.”

Commissioner Nathan Simington raised concerns about expansion of FCC authority to regulate retransmission consent negotiations to cover virtual MVPDs. He called for a record refresh of the decade-old proceeding. “There’s no timely record before me,” he said. “I don’t know whether it’s possible to extend commission authority over VMVPDs, nor do I know whether it’s the appropriate moment to do so as a matter of policy.”

Simington also discussed the importance of clear direction from Congress. “We should reset our expectations,” he said. “Without congressional action, I’m not sure that there is such a thing as commission regulation of the media marketplace in the future. … We should be clear...that’s a decision...we’re taking consciously and not by default.” When the future of media is streaming “what’s the statutory predicate of our authority?” Simington asked. The best thing the government can do in the media marketplace is “get out of the business of broadcast regulation,” he added. What social good “is being served by media regulation that still pretends it’s 1972?”

Former Commissioner Jonathan Adelstein, a Democrat, stressed the traditional emphasis on broad agreement in Congress on critical communications issues. “Congress sets the rules,” Adelstein said. The Senate is designed to build consensus, he said. Adelstein said when he was a Senate staffer the goal was to get as much done as possible under unanimous consent. Back then it was difficult for Congress “to get specific” and “it’s a lot harder now,” he said. That’s why Congress delegates authority to expert agencies to interpret statutes.

Adelstein believes how the major questions doctrine is applied is “judicial activism” designed to “rein in the administrative state.” The question is whether courts or expert agencies should interpret congressional intent when it’s unclear, he said. “I say [it should be] the expert agencies, not the courts.”

But Adelstein expressed reservations about the net neutrality NPRM, approved by commissioners 3-2 last month (see 2310190020). Early on there was broad consensus in favor of “no blocking, no throttling and no paid prioritizations” and those tenets “are largely complied with by ISPs,” Adelstein said. The FCC’s recently proposed rules won’t “change the status quo that gives cloud providers a free ride,” he said. The big cloud providers “have captured the lion’s share of the revenue” and profits “from the growth of the internet,” he added. Major carriers have seen little growth in their stock prices since the mid-1990s, he said.

For the FCC to change the rules, Adelstein said there should be evidence of a “change in material circumstances” to justify commission action. “Here, there’s no evidence of a problem,” he said. “Hence, it’s more ripe for getting overturned and setting what I think is a bad precedent.”