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Loper Ruling Focus of House Hearing?

Carr Urges FCC to Ditch July E-Rate Wi-Fi Order Vote and Other Proposals After Chevron Decision

The U.S. Supreme Court’s June decision in Loper Bright Enterprises v. Raimondo that overruled the Chevron doctrine 2407010036) will likely heavily influence discussion during a House Communications Subcommittee hearing Tuesday on the commission’s FY 2025 funding request, congressional aides and lobbyists told us. Chevron gave the FCC and other federal agencies deference in interpreting federal laws. Republican FCC Commissioner Brendan Carr is urging the commission ahead of the House hearing to drop a planned July 18 vote on a draft order and Further NPRM letting schools and libraries use E-rate support for off-premises Wi-Fi hot spots in response to the ruling. The hearing will begin at 10 a.m. in 2123 Rayburn.

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The FCC should “not move forward” with the E-rate order and two other proposals because the commission is “exceeding its authority in significant ways,” Carr says in written testimony ahead of the House Communications hearing. The two other proposals Carr wants to nix are a March Further NPRM that bans bulk billing arrangements between ISPs and multi-dwelling unit owners (see 2403050069) and measure requiring disclosure of AI-generated content in political ads. Loper Bright means “courts will not defer to an FCC decision to read into the Communications Act a grant of authority that Congress did not provide,” Carr says.

Congress has limited the FCC’s E-Rate authority to enhancing the access of ‘classrooms’ and ‘libraries’ to telecommunication services,” Carr says. Congress’ creation of the $7 billion emergency connectivity fund for remote learning during the COVID-19 pandemic “only highlights the fact that the FCC’s existing E-Rate authority does not allow” funding for “connections outside of schools.” The agency “should abandon its bulk billing” proposal given its record “certainly does not support … moving forward with this proposal,” he says: “These are plans that … benefit[s] families” by enabling “building owners to leverage their purchasing power.”

The FCC’s AI proposal is part of “an unprecedented effort to regulate political speech in the run-up to a national election,” Carr says. “The FCC’s attempt to fundamentally alter the rules of the road for political speech is as misguided as it is unlawful.” He cites Federal Election Commission Chair Sean Cooksey’s June letter to FCC Chairwoman Jessica Rosenworcel stating the FEC has sole authority over political reporting requirements and disclaimers (see 2406060051).

Rosenworcel’s written testimony doesn’t mention Loper Bright but defends the E-rate draft, the FCC’s April net neutrality order and other actions the Supreme Court’s decision potentially imperils (see 2407010036). The E-rate draft order “would allow every library and school library in the country to loan out Wi-Fi hotspots to keep their patrons and kids connected,” Rosenworcel says. “We need to pursue every avenue to ensure connectivity and opportunity for all.” The net neutrality order will “ensure that the Nation’s expert in communications has basic oversight over the most essential communications network of our time, and that every consumer has internet access that is fast, open, and fair,” she says.

Democratic Commissioners Anna Gomez and Geoffrey Starks also defend the net neutrality order and other recent actions in their written statements. “Broadband Internet access is too important, too essential to the safety, economy, health, education, and well-being of this country not to have any guardrails in place,” Gomez says. The FCC reclassified broadband as a Communications Act Title II service as part of the net neutrality decision because “a service this vital needs oversight,” Starks says: “Now, we’re armed with more tools to ensure network security, and in turn protect American interests.”

Rosenworcel and the other Democratic commissioners also provide lawmakers with a legislative wish list, including renewed requests for additional money for the lapsed affordable connectivity program and the underfunded Secure and Trusted Communications Networks Reimbursement Program. Rosenworcel notes the Biden administration’s proposal funding the FCC at $448 million for FY25 “will ensure that the Commission can meet its statutory mandates and uphold the core values of our laws -- consumer protection, universal service, national security, and public safety -- all while keeping pace with ever-changing and advancing technologies.” The House Appropriations Committee last month approved increasing the FCC’s annual funding to $416 million (see 2406140054).

ACP “has been the most successful program ever in our decades-long, bipartisan effort to solve the digital divide,” Starks says. “We’ve made real progress in closing the digital divide through ACP, and we cannot afford to slide backward.” The “end of this program threatens the significant progress we have made toward achieving connectivity for all,” Gomez says: The lapse could mean “we risk failing to maximize the $42.5 billion bipartisan investment in broadband infrastructure through the Broadband Equity Access and Deployment Program.”

Republican Commissioner Nathan Simington says he's frustrated with the FCC using “its limited resources” to implement “partisan, unnecessary and burdensome policy frameworks, like the Title II broadband and digital discrimination regulatory regimes.” Those priorities “leave little room for commonsense, urgently needed reforms and invaluable Commission attention,” he says: They include “not only a comprehensive framework for securing our networks from foreign threats … but also a Universal Service Fund contributions overhaul and a continued focus on space leadership.”