End of Chevron Could Slow FCC Timelines, Push Congressional Action on USF

Agencies have been prepared for Chevron to end for a long time, said Joel Thayer, president of the Digital Progress Institute. “We were already on this train, and it probably wasn't wise for any agency to rely on Chevron in the past 10 years,” he said. Said Gigi Sohn, American Association for Public Broadband executive director, “It should discipline agencies to be more precise.” Sohn added, “I hope, because of [Loper Bright v. Raimondo] that administrative procedures will be less-political decisions, made less on the politics and more on the actual facts and law.”

Former FCC Commissioner Mike O’Rielly said he expects proceedings at the FCC to take longer because without the ability to lean on deference, they will need a more thorough legal underpinning to survive legal challenges. “It’s going to stretch out timelines much longer,” he said. “So if you've got policy changes that you're working on, on behalf of clients or on behalf of whomever ... then you should be working on them now.” Former FCC General Counsel Tom Johnson, now a partner at Wiley, said ending Chevron will put more emphasis on comments filed at the agency. Those submissions could provide strong data and legal arguments for defending an agency position in court, Johnson said.

The end of Chevron deference is also likely to increase agency reliance on Congress, O’Rielly said. “If there isn't specific authority in the statute, you're going to go to Congress and try and get that,” he said. Added Johnson, Congress could also aid the FCC in staving off legal challenges by codifying or expanding on FCC rulemakings after they happen.

Sohn said she expects the FCC under its next chair, FCC Commissioner Brendan Carr, will cease defending rules on net neutrality and digital discrimination in their court proceedings. Noted O'Rielly, those cases will likely be decided before Carr has a majority on the FCC. “A lot of the controversial rules have already been litigated extensively on fundamental grounds, on shaky grounds,” and they “are going away,” he said.

Many of the fights over FCC rules aren’t between public interest groups and industry but are industry versus industry, Sohn noted. “Loper Bright can come back and bite you depending on what side you’re on,” she said. It's likely to hamper FCC efforts to act on Section 230, she said. “What's kind of nice about Loper Bright is that it pushes back on overreach, not just by us crazy lefties, but also by the crazy righties.” The FCC can reinterpret Section 230 because it's part of the Communications Act, said Johnson. “The FCC has a role to play in interpreting not just Section 230 but all of the Communications Act, and even after Loper Bright, courts are going to give serious weight to its opinions.”

Loper Bright could lead to a U.S. Supreme Court decision blowing up the USF program, numerous panelists said. Congress never authorized the Universal Service Administrative Co., said O’Rielly. The USF is “deeply vulnerable,” and it would be a mistake to wait for “a catastrophic event” like a SCOTUS decision against it before revising it, said former FCC Commissioner Harold Furchtgott-Roth, now at the Hudson Institute, on a separate panel. An unfavorable court ruling is one of the only things that would spur congressional action, said former FCC Commissioner Mignon Clyburn. If a court decision completely knocks down the USF, “I would be crushed, and I think this nation would be crushed,” she said.

The USF funding base should expand to include the tech companies that benefit from the spread of broadband, said Strand Consult’s Roslyn Layton. It's “an administrative distortion” that they are not part of the base, she said. Furchtgott-Roth argued that burdening tech companies with USF will prompt them to leave the country to avoid such fees. Layton predicted Congress will be “where the action is” on USF and said legislators wouldn’t be starting from zero because of the Senate’s USF working group.

The end of Chevron deference could free Congress to act on USF, O’Rielly said. In the past, lawmakers in the party that controlled the FCC were discouraged from reaching compromises because they could depend on the agency to implement their agenda without congressional action, he said. With agency actions less certain, lawmakers will now be motivated to reach consensus, he said. "Congress at some point has to do its job," said Thayer. “Congress needs to evaluate these questions and really stop just sitting around.”