Free State: Rescind Telnyx NAL
The FCC’s notice of apparent liability against Telnyx is an abuse of power and should be rescinded, said Free State Foundation’s Seth Cooper in a blog post Wednesday. The Feb. 4 Telnyx NAL (see 2503050026) amounts to “regulation by enforcement,” where an agency imposes new requirements on regulatees in enforcement proceedings instead of through a rulemaking, Cooper wrote. Regulation by enforcement “deprives regulated entities of the ability to know and follow the law, so it is contrary to the requirement of fair notice and the prohibition of unfair surprise that are recognized in Supreme Court's Fifth Amendment Due Process Clause jurisprudence.”
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The 11th Circuit’s recent ruling vacating a forfeiture order against Gray Media “was based on lack of fair notice and due process concerns similar to those implicated by the proposed Telnyx forfeiture,” Cooper wrote. The court ruling is a chance for the FCC “under new proven leadership, not only to reconsider the proposed Telnyx forfeiture, but, more broadly, the need for rules that clearly state what is required of regulated parties before initiating enforcement actions.” The penalty also doesn’t comport with the Supreme Court’s SEC v. Jarkesy case ruling on monetary forfeitures or a 2019 White House executive order requiring regulatory transparency, he said.