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No More 'Huggy-Kissy'

SCOTUS' Major Questions Doctrine Seen Driving Increased Dissent Votes at FCC

As the FCC sees increased dissent votes by Republican minority commissioners, those dissents frequently challenge agency authority. That's becoming a more common line of argument among GOP commissioners across federal regulatory agencies, often based on the U.S. Supreme Court's major questions doctrine, administrative law experts tell us. Republican commissioners and former commissioners say dissent votes are a reflection of the Democratic majority pushing partisan issues. Commissioner Nathan Simington in a statement said he is "disappointed that the Commission is now focused on misguided, partisan items, but I remain hopeful that we can continue making progress on real, non-partisan solutions to long-standing technical issues."

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With SCOTUS signaling with the major questions doctrine that it's reining in federal regulation, it has become easier to make the case that an agency is operating outside its congressional authorization, Thomas McGarity, University of Texas' Lozano Long Professor in Administrative Law, told us. At most regulatory agencies, including the FCC and those dealing with health and safety issues, matters of any significance will almost inherently include major questions, he said. That gives Republicans the argument that the courts are likely to overturn a proposed rule, he said, adding that the major questions rationale is also being cited in efforts to roll back or retract previous agency actions.

Beyond some appointees feeling buoyed by SCOTUS' major questions doctrine, it's also unsurprising that Congress' polarization is being mirrored by polarized views in the Senate when confirming members of independent agencies, Jeff Lubbers, American University administrative law professor of practice, said in an email.

Republicans and Democrats "are now interpreting the law very differently," Public Knowledge Senior Vice President Harold Feld said in an email. Republicans generally and Republican commissioners are taking a much more restrictive view of agency authority. "It's not just an argument about policy, where you can find some sort of compromise," Feld added. "If you think the FCC doesn't have authority to adopt data breach rules or to eliminate junk fees, then there is no compromise possible."

Some say this is not a new situation, with Michael Livermore, University of Virginia law professor, emailing that Republicans typically question the authority of agencies when Democrats are in the majority, "and vice versa."

After more than a year of near-constant unanimity at the 2-2 FCC, the recent spate of Republican dissents reflects a Democratic majority pursuing policy goals it couldn't do previously. "Tough decisions, by their nature, foster dissents," former Democratic FCC Chairman Tom Wheeler said in an email. "In the total scope of the Commission’s decisions, however, I bet you’ll find that the vast majority of the decisions are not 3-2." Emailed former Republican Commissioner Mike O'Rielly, "With the change in Commission composition and election politics entering the fray, the huggy-kissy days from [the] last couple [of] years are mostly over."

Between FCC Chairwoman Jessica Rosenworcel's December 2021 confirmation and Anna Gomez's September swearing-in as a commissioner, which gave Democrats a 3-2 majority, unanimous approval during monthly open meetings was by far the norm. Exceptions included Commissioners Brendan Carr partially dissenting and Simington partially concurring in January 2022 votes on the affordable connectivity program (see 2201210082). In addition, Simington partially concurred during September’s meeting on an NPRM establishing the 5G Fund (see 2309210035).

Since Gomez's confirmation, while most votes remained unanimous, there was a notable uptick in disagreements, with major questions or agency authority claims frequently at the heart. Carr raised major questions issues in his net neutrality NPRM dissent and questioned agency authority in his school bus Wi-Fi E-rate dissent at October's meeting. Simington also dissented on those items (see 2310190056). The November meeting saw dissent votes from the two on the digital discrimination order (see 2311150040), where again Carr raised major questions issues and Simington challenged FCC authority. When the two that month dissented on an NPRM voted on circulation regarding E-rate money being used for off-premises school Wi-Fi hot spots (see Ref:2311090028]), Carr again questioned agency authority. December's FCC meeting had the two challenging agency authority over data breach notification rules and the MVPD early termination fees NPRM (see 2312130019). "Congress’s charge was to address customer service issues such as wait times on service calls, not rate regulation," Carr said in his MVPD fees dissent: "It's clear that the Administration has decided that the FCC is going to regulate rates ... without regard to the FCC’s legal authority." Simington also partially dissented on a robocall blocking order at the December meeting. Those votes followed their dissents the previous day on an order about SpaceX not participating in the Rural Digital Opportunity Fund program (see 2312130004). And 2023 closed with Carr and Simington dissenting in the 2018 quadrennial review (see 2312220064).

O'Rielly said the dissents "appear to be a combination of the current Commission adopting previously bottled-up liberal policies outside the mainstream of logic or statutory authority and the minority realizing their voice in such circumstances. The more the Commission pursues short-term victories over sustainable policies, the more likely the minority will raise loud objections."

Similar major questions rhetoric can be found in Republican dissents at other regulatory agencies. Then-FTC Commissioner Christine Wilson raised major questions and agency authority criticisms 12 months ago in her dissent vote on an NPRM proposing to ban noncompete clauses. "Congress has considered and rejected bills significantly limiting or banning non-competes on numerous occasions, a strong indication that the Commission is trying to 'work around' the legislative process to resolve a question of political significance," she said.

The major questions doctrine won't help opponents of deregulatory actions, as these don't raise concerns of agency authority, said McGarity. He said it's unlikely there would ever be a court decision that would require clear statutory language from Congress for an agency to eliminate a rule.