Latest Trump Order Could Slow Aggressive Agenda at FCC

Former FCC chairs said the order is causing unnecessary disruption for the agency. The administration’s goal is a quick decision by the U.S. Supreme Court confirming the White House's view of Trump’s sweeping authority as head of the executive branch, experts agreed. The order also faces opposition on Capitol Hill.

“The Administrative Procedure Act already provides for the review of agency actions,” Sen. Elizabeth Warren, D-Mass., told us. Trump “seems to be going for a big show but not actually following the law, and what he hopes to gain is unclear in this one.”

“I assume a number of entrenched telecom lobbyists and lawyers will be annoyed they won’t have as much influence,” said Nathan Leamer, CEO of Fixed Gear Strategies and a former aide to FCC Chairman Ajit Pai. “Tough day for the FCBA guild.”

The order mandates that the FCC and other “so-called independent” federal agencies and executive branch entities “submit for review all proposed and final significant regulatory actions” to the White House's Office of Information and Regulatory Affairs (OIRA) “before publication in the Federal Register.”

While past presidents have commented on pending FCC actions, it is “unprecedented” that an agency Congress created as outside the executive branch is required to submit proposed regulatory decisions to the White House, said former FCC Chairman Tom Wheeler, a Democrat. “I guess an NPRM now becomes a TANPRM (‘Trump Approved NPRM’),” he said. When Wheeler was chairman, House Republicans called for him to testify before Congress over his communications with the White House in the run-up to his net neutrality order (see 1502230064).

Former Republican FCC Chairman Mark Fowler said the FCC has become “a mess,” infringing on the separation of powers and all three branches, and should be dissolved. Management and administration of spectrum should be privatized, he added. “It doesn't make sense” to put the FCC under the executive branch “when there are adjudicatory and legislative functions involved. I'm not sure that that's going to work.”

“This sledgehammer approach to running government by destroying government is upending lives, demolishing our carefully built democracy, and making us the laughingstock of the world,” former FCC acting Chairman Michael Copps, a Democrat, said in an email. “We live in an increasingly complex society that cannot function by destroying the laws and the agency expertise that have been built up over the years to protect the public interest,” he said. “I have never seen such incompetence.”

Public Knowledge Senior Vice President Harold Feld said the executive order could cause immediate problems for Carr. Is he going to pull items from the agenda for the Feb. 27 open meeting until OMB approves them? Feld asked. He continued: How does the order work on requests for changes by commissioners, including Republican commissioners? Does it apply to NPRMs or notice of inquiries, enforcement actions or actions at the bureau level?

“Implementing this new executive review requirement is going to be Carr's next challenge,” Feld said: It’s “almost certain to slow down Carr's agenda if everything needs sign-off from an OIRA/OMB swamped with review of all agency actions from every agency.”

Provisions in the order requiring the submission of regulations to the OIRA before publication could lead to increased delays for FCC rules, agreed DLA Piper's Peter Karanjia. OIRA review has been a “bottleneck” at times for rules by other agencies, such as the EPA, he added.

Requiring White House approval could also weaken the FCC in court, Karanjia said. After the U.S. Supreme Court’s elimination of Chevron deference, the agency will already be arguing from a vulnerable position when it defends its policies, he said: The order could be seen as further “diluting” the FCC’s authority to interpret its rules because it gives the White House more control.

Not 'Strictly Legal'

The executive order isn’t “strictly legal,” but that’s the point of the administration’s aggressive approach, said Andrew Schwartzman, senior counsel at the Benton Institute for Broadband & Society. The administration wants “a very prompt test of the unitary executive principle as applied to independent regulatory commissions such as the FCC,” he said: “They will get it because this will likely move very quickly in the courts.”

The FCC has issued orders interpreting the Communications Act, Schwartzman noted. “What does it mean if DOJ thinks otherwise?” he asked: “Traditionally, DOJ is also a respondent in court cases, and it has on occasion taken different positions or not joined an FCC brief.” Schwartzman said he doesn’t see how the FCC chairman can order the agency’s general counsel to take a different position in court than what the FCC adopted by a majority vote.

New Street’s Blair Levin said, “However the White House and FCC interpret it, it is inevitable that it will add time to every important action.” He cited as an example FCC work on spectrum issues, such as revising rules for the citizens broadband radio service band. FCC actions “involve highly technical issues, which most White House officials do not have a background in,” he said in a note to investors Wednesday. Adding a process “in which FCC officials must take time to explain the decision to White House staff and await their sign-off inevitably will add time to the process.”

Beyond that, the net effect of the order will likely be minimal, other than potentially for broadcast regulation, Levin said. “As to every proceeding regarding the telecom and tech sector that the FCC is likely to act upon during the Trump/Carr tenure, we think Carr is highly likely to do whatever the White House would want him to do.” On the media side, Trump has indicated he wants the FCC to revoke some broadcast licenses, Levin noted: “We don’t think Carr would go that far, and we don’t believe any court would uphold such an FCC order on the grounds Trump has stated, but the Executive Order increases the odds that Carr and the Courts will be tested on that issue.”

Western democracies have different models for telecom regulation, noted Cooley’s Robert McDowell, a former FCC member. “Many parliamentary systems locate all policymaking power under a cabinet minister, or a 'minister of telecoms,' which is sometimes under the minister of finance, such as in Germany,” McDowell emailed. In the “think tank world,” the idea of “making the FCC's function one solely contained in the executive branch, such as an 'Assistant Secretary of Communications' within the Department of Commerce, has been debated for years.”

McDowell noted that in 2014, former President Barack Obama made a YouTube video saying that the FCC should classify broadband internet access service under Title II of the Communications Act. “The Wheeler FCC pivoted and did exactly that,” he said: “So this is not the first time the idea of making 'independent agencies' an arm of the Executive Branch has come up.” McDowell said Administrative Procedure Act requirements, “such as public notice and comment, still apply no matter where these functions are housed,” predicting that the Trump order will be litigated, “and Congress will want to shape it one way or the other through hearings and legislation.”

The White House asserting control over independent agencies was “entirely predictable,” said TechFreedom President Berin Szoka.

“Let’s not kid ourselves,” emailed Phoenix Center Chief Economist George Ford. “The independent agencies and the executive branch are already coordinating,” he said. “You don’t get that seat [on the FCC] for nothing, and the West Wing doesn’t like surprises.”

Hill Disagreement

Senate Republicans and Democrats disagreed sharply on the order Wednesday. Sen. Dick Durbin, D-Ill., said he hopes congressional Republicans will join Democrats in asserting constitutional authority and not “give into every extreme position” Trump takes. “You’ve seen the president in his first month,” Durbin said: “Ninety percent of it is bluster.”

White House review of agency orders is justified, said Sen. Rick Scott, R-Fla. “That’s what the president ought to be doing.” The lawmaker noted that when he was Florida's governor, his administration reviewed government rules, and he “tried to get rid of as many regulations as I could.”

Sen. Ron Johnson, R-Wis., said the order was “completely appropriate.” Trump “was elected to shake up the government, to literally be a disruptor,” and “that’s what he’s doing,” he said: “I support his efforts. This can’t go on. Government is destroying our lives.”

In 2015, Johnson raised concerns about the Obama White House involving itself in FCC regulatory proceedings: “Since the FCC is an independent agency that derives its authority from Congress and not the White House, it is highly concerning that the White House would seek to take on this level of involvement in the regulatory process of the FCC, or attempt to supplant completely the agency's decision-making apparatus."

Top Senate Commerce Committee Democrats also voiced concern about Trump’s recent executive orders threatening independent agencies but had few suggestions for congressional pushback.

“These agencies have particular missions, and we want to see” the FTC especially fulfill its mission of “protecting consumers" and handling antitrust enforcement, said ranking member Maria Cantwell of Washington. “I think the confusing thing about the Trump administration is they act like they're doing something for the public good, when in reality, they're billionaires over there who are looking at trying to get access to things that are really conflicts of interest for them. So it's not about cutting money.”

Sen. Ben Ray Lujan of New Mexico, who is in line to be Communications Subcommittee ranking member, told us it’s “not surprising that this administration is reaching the way that they are and eliminating independence of these federal agencies.” What X owner and SpaceX CEO Elon Musk “and this administration appear to be doing is just trying to tear everything apart,” Lujan said. “It should be concerning to everyone involved.” Musk chairs Trump’s Department of Government Efficiency advisory group.

“We’ll see if our Republican colleagues are willing to work with us to ensure that people are following the law,” Lujan told us. “That's what this comes down to. And if this administration is not willing to follow the law and [is] willing to ignore the courts, as Vice President [JD] Vance has suggested, it's going to take my Republican colleagues in the Senate and in the House being willing to work together to do what's right for America.”