'Delete' Docket Expected to Draw Mass of Filings, Require Individual Proceedings

The FCC might potentially use the notice “to create an omnibus NPRM with proposed deletions and proceed to an order that effects all the changes,” said Joe Kane, Information Technology and Innovation Foundation director-broadband and spectrum policy. But Kane noted that the FCC asked commenters to file in other relevant dockets, too. “I would expect the proceeding to shape up around older and outdated regulations, rather than being a shortcut through normal process” for issues already before the commission.

Fordham administrative law professor Olivier Sylvain said rule deletions flowing from the Delete proceeding (see 2503120055) would have to go through a notice-and-comment period. American University administrative law professor Jeffrey Lubbers pointed out that the mechanics of publishing in the Federal Register are such that the agency would likely have to undertake multiple proceedings instead of pursuing one omnibus NPRM. Summit Ridge Group President Armand Musey said the FCC can probably make some changes without worrying about the Administrative Procedure Act, but bigger issues will require a notice-and-comment process. New Street’s Blair Levin also said the notice of inquiry will lead to separate rulemakings.

The Delete effort is not unique, Lubbers noted, explaining that Republican and Democratic administrations for years have been interested in agencies doing “look-backs” at rules and seeking input on which ones should go. Levin said it’s “hilarious” that an FCC seeking to regulate more business decisions about human resources, editing, content carriage and content moderation “proclaims that it is time to deregulate.” To the extent that Carr finds rules “that can easily be eliminated without cost to the American public, God bless him,” Levin said: “A lot of the rules relate to things like robocalling, 911 compliance, spectrum interference, consumer disclosures and other issues” where there is broad support for regulation.

“They might as well call it ‘Delete FCC, Delete FCC, Delete FCC,’” former Commissioner Michael Copps wrote in an email. “The subtitle could be ‘Screw the Public Interest.’ Or, ‘Consumers be Damned.’” Dunstan said the proceeding is going to be “very strange” with Carr having a deregulatory goal, “yet, when it comes to big tech, he wants to ‘regulate, regulate, regulate.’”

Due to the likely volume of filings, the agency also could face a “regulatory fatigue” challenge, with FCC staff spread thin, Dunstan said in an email. “So look for a flurry of early rulemakings (broadcast ownership, possibly copper retirement), but as those proceedings drag on, I can't see the FCC launching ever more rulemaking,” he said. “The staff will revolt.”

The U.S. Supreme Court’s Loper Bright v. Raimondo ruling knocking down Chevron deference could further complicate the deletion process for the FCC, Dunstan said. Because the agency will be looking to roll back long-standing rules, it also won’t be able to rely on Skidmore deference, which requires courts to consider past agency interpretations of statutes, he said. “If [Carr] is turning 180 degrees on rules, he will get very little deference on appeal,” Dunstan said. Sylvain said “it may be that the current FCC leadership has a good reason to change course, but they have to explain that decision.”

The Delete item is unusual from a procedural standpoint, said Andrew Schwartzman, senior counselor at the Benton Institute for Broadband & Society. It's couched as coming from the FCC but isn’t the result of a commission vote, he pointed out. The public notice was issued on delegated authority but isn’t associated with any bureau or office other than the Office of Media Relations. The item uses the first-person plural but doesn’t specify who the “we” calling for suggested outdated regulations is, Schwartzman added. In the Delete docket, 25-133, the public notice was filed by the Office of Media Relations. Virtually every other filing in ECFS from that office is either a news release or a commissioner statement. The FCC and Commissioners Geoffrey Starks and Anna Gomez didn't comment.

Targeted Rules

Industry figures told us to expect Delete submissions to include long compilations of rules seen as antiquated or overly burdensome, with many stakeholders taking the opportunity to go after rules they have targeted for years. The proceeding looks like “a golden opportunity” for axing such rules, said Satellite Industry Association President Tom Stroup.

Broadcast attorneys told us they expect submissions calling for the FCC to ax children's television rules and public file requirements as well as equal employment opportunity audits, among other things. Many of those issues were raised by broadcasters during former Chairman Ajit Pai’s media regulation modernization effort. Broadcaster requests for deregulation could be in tension with NAB’s recent request for the FCC to mandate a transition to ATSC 3.0, Levin said. Carr appears “sympathetic, and there are valid reasons for some of what NAB proposes,” he said. But what NAB asks is also “very regulatory, forcing broadcasters, consumer electronics types and [multichannel video programming distributors] to act in certain ways.” How will Carr “justify doing what NAB wants in the context of leading an effort to deregulate?” Levin asked.

Tom Larsen, Mediacom senior vice president-government and public relations, emailed that his company "would love to see" reforms of business data services (BDS) rules. He cited such rules as those allowing some rate-of-return carriers to voluntarily transition their BDS offerings out of rate-of-return regulation and its BDS framework of ex ante price regulation in areas that will lack competition, saying they're particularly challenging and out of date. There would also likely be a focus on broadband labels, all-in pricing and all restrictions on how cable can market its services, including to bulk properties, he added. Another person familiar with cable also said industry groups are likely to suggest all-in pricing.

Attorney Eric Troutman told us that Telephone Consumer Protection Act rules on revoking consent for unwanted robocalls and robotexts, which go into effect April 11, could be in voice providers’ sights, as they're seen as very restrictive and burdensome on legitimate companies. They also view TCPA rules regarding what constitutes prior written consent and the definition of a seller as particularly restrictive, he said.

A Competitive Carriers Association spokesperson said in an email that the group “has often discussed the significant regulatory burdens on competitive carriers in its FCC comments, both from individual regulations and the cumulative regulatory burden carriers face ... We look forward to providing the FCC input on ways to reduce regulatory burdens, increase competition, and encourage deployment, particularly in rural areas.”

Some comments have already trickled into the docket -- 59 as of Friday afternoon. One Ministries called on the agency to delete rules on the modification of TV markets, and Double Dog Communications asked to ease filing burdens for small ISPs. The LPFM Advocacy Group asked the FCC to act to ensure noncommercial and low-power FMs can sustain themselves without government support in the face of efforts to eliminate federal funding. Many of the early filings concern amateur radio: A filer identified only as “Free American” called for lifetime amateur radio licenses. “Why make [General Mobile Radio Service] and Amateur Radio renew licenses every 10-years? It just costs money and makes for more work.”