FCC Could Face Legal Challenges Over Deregulation Without Notice and Comment
FCC Chairman Brendan Carr’s announced plan to forgo notice-and-comment procedures when rescinding rules could run afoul of administrative law, some experts said. Carr said the agency may look to the Administrative Procedure Act's (APA) good-cause exception to notice-and-comment requirements in its efforts to remove no-longer-enforced rules (see 2505160064). An April White House memorandum said notice and comment aren't required when eliminating rules that it contends run counter to recent U.S. Supreme Court decisions like Loper Bright. FCC Chief of Staff Scott Delacourt said the commission might employ declaratory rulings as a way of eliminating what Carr determines are invalid rules.
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The argument that agencies should be able to summarily rescind rules they believe to be unlawful conflicts with the APA's plain text, the case law interpreting it, and the U.S. attorney general's interpretation of the law when it was enacted, Governing for Impact policy counsel Reed Shaw wrote last week. Shaw said the presidential memorandum seems to assume that soliciting public input on the rescission of a rule would be a waste of time. The U.S. Court of Appeals for the D.C. Circuit has rejected that approach, Shaw added. Instead, comment can help "when an agency is faced with applying novel and evolving Supreme Court precedents to longstanding regulations." The White House memorandum "is just one of the ways that the Trump Administration has pushed incorrect interpretations of the APA’s exceptions to accelerate its deregulatory program."
The White House would be better off having agencies proceed with direct final rulemaking, where they publish a final rule in the Federal Register, and if it gets no significant adverse comments in a set period of time, it goes into effect, said Jeff Lubbers, an American University professor of practice in administrative law. Under that approach, if the agency receives a significant adverse comment, it must restart with an NPRM and comment period, he told us Monday. It will be tough for agencies that forgo notice and comment to prevail in court if they are challenged, Lubbers added.
The FCC likely won't see much pushback to avoiding notice and comment if its strategy truly involves targeting rules that are no longer enforced or followed, emailed Daniel Walters, a Texas A&M associate law professor. He said rescissions of truly obsolete rules aren't likely to be challenged, "and even if they were the agency would have a pretty good argument that notice and comment are unnecessary because comments are extremely unlikely to be filed or to raise issues that the agency would need to grapple with." Conversely, if the characterization of rules as obsolete isn't accurate, and they would generate more interest from the public than the agency suggests, courts may be less likely to credit a good cause argument, he said.
Rules made through notice and comment must be unmade the same way, Corbin Barthold, TechFreedom internet policy counsel, wrote last week. A finalized rule is believed to be lawful, and an agency can't later rescind it without notice and comment "on the grounds that the rule is really unlawful, any more than it could do so on the grounds that the rule is a really bad idea."
Barthold said there could be instances of rules "so clearly foreclosed by new [court] decisions that repeal amounts to a ministerial act," but those obvious cases would be rare. The White House is apparently claiming that Loper Bright allows an agency to repeal any rule that doesn't reflect its sole correct interpretation of a statute, and to do so without public input, he said: "But working out that interpretation is precisely what the notice-and-comment process is for."
At the FCBA's annual seminar last week (see 2505190023), the FCC's Delacourt said that as the agency looks to deregulate and remove unenforced rules, it's undertaking a "top-to-bottom" staff review of every rule, looking for items that should be excised because they cause a burden viewed as unjustified or that address technology no longer in use. That should be uncontroversial, he added.
The deregulatory suggestions the agency has received in its "Delete, Delete, Delete" docket aren’t regulatory underbrush, said Delacourt, since in many cases, such as broadband labels or robocall rules, there are constituencies that want to keep the rules. In many cases, removing such items will require traditional rulemaking, but for the many rules no one cares about anymore, they might be done away with in some "short-form" process, such as declaratory rulings, he said.