Rodgers and Comer Demand FCC, Other Agencies Adhere to Narrowed Post-Loper Path

The recent SCOTUS decision “precludes courts from deferring to agency interpretations when the statutes are ambiguous,” Rodgers and Comer wrote in letters to FCC Chairwoman Jessica Rosenworcel, Commerce Secretary Gina Raimondo and FTC Chair Lina Khan. The FCC has followed the Biden administration’s lead by “promulgating rules that significantly expand the power of the FCC beyond the boundaries set by Congress,” Rodgers and Comer told Rosenworcel. “These rules impose vast costs and paperwork burdens without any basis of congressional intent.”

Many FCC “rules -- such as those promulgated to impose President [Joe] Biden’s broadband agenda -- have been based on overreaching interpretations of statutes enacted by Congress years ago, before the issues now regulated were even imagined,” the GOP lawmakers told Rosenworcel. Their letter to Khan described FTC rules as “promulgated to impose” Biden’s “labor, economic, competition, and consumer protection agenda.” Rodgers and Comer cited Biden’s “centralized industrial planning agenda” in their letter to Raimondo. The two lawmakers asked Rosenworcel, Raimondo and Khan to respond with information on proceedings, rules and enforcement actions that rely on interpretations of statutory authority that might have depended on Chevron deference. They also requested a list of pending legal challenges that Loper could affect.

Carr appeared to downplay the decision's effect on FCC operations during a news conference after the commission’s Thursday open meeting. “The Supreme Court did not say that Congress can’t delegate decisions to agencies or even delegate discretionary decisions to agencies,” Carr told reporters. Instead, he said he believes Congress will now need to be explicit about delegating that authority. The FCC’s 3-2 Thursday vote on an order expanding E-rate to cover school and library Wi-Fi hot spots (see 2407180024) is an example of “the type of overreach that the court was trying to avoid,” Carr said. His lengthy dissent criticized the E-rate order as exceeding the authority Congress afforded the FCC.

Morgan Lewis’ Russell Blau argued during the Incompas event that the dissents Carr and FCC Commissioner Nathan Simington delivered in voting against the E-rate order Thursday will be an issue if there’s a legal challenge. “It’ll certainly be within the authority of a court to take an independent look … and decide whether they think” the FCC made a “fair reading of the statute,” Blau said.

Venable’s Craig Gilley believes ISPs’ legal challenge in the 6th U.S. Circuit Court of Appeals to the FCC’s stayed April net neutrality order (see 2407120048) will first turn on the Supreme Court’s evolving major questions doctrine “and then get to” the post-Chevron implications. Hogan Lovells’ Michele Farquhar said the 8th U.S. Circuit Court of Appeals’ review of the FCC’s digital discrimination rules (see 2407080012) will be “an interesting case to watch with or without Loper” because it could also turn on the major questions doctrine and nondelegation.

Gilley and others said during the Incompas event that Loper also puts much more onus on Congress to be precise in its legislative work. Lawmakers now have an incentive to “take a harder look” at legislative language and “do more to shore up the statutes before they go to the agencies for implementation,” Gilley said: Currently, “major policy decisions” become part of large omnibus packages and their language ends up being “incomplete.” Blau said Congress has drafted “pretty clear” statutes on telecom issues recently, including the Secure and Trusted Communications Networks Act. “There may be a lot of things to challenge under that statute, but what Congress intended [the FCC] to do doesn’t seem to be one of them,” Blau said.