FCC's July Deletion Order Could Limit Judicial Review of Agency Actions

In addition, the FCC is already using the direct final rule (DFR) process -- which allows just 10 days for filers to object to a proposed decision -- at the commission level, and it began doing so without notice or a vote. The agency is rewriting its delegated authority rules and “adopting completely new procedures, but without receiving any public comment on these procedures,” said Tech Freedom in an ex parte filing posted Thursday.

FCC officials told us the deletion item is among the most contentious on July's agenda. It appears unlikely to receive Commissioner Anna Gomez’s vote. “I think that only the commission should be able to undo the work of prior commissions,” she told us in an interview after the item’s release.

The draft order would delete 18 rules that the FCC called obsolete -- some regulate telegraphs and analog TVs -- using the abbreviated DFR process, which says the rules will be automatically repealed if they don’t receive “significant adverse comments” within 10 days of the item appearing in the Federal Register. The agency is using the same process for an item on the August meeting agenda that would delete 98 broadcast rules.

July's draft order would also authorize the FCC’s bureaus and offices to begin using the same process to skip notice and comment on delegated authority for rules that are routine or “insignificant in nature and impact, and inconsequential to the industry and to the public.”

If bureaus are allowed to delete rules and have it go into effect almost immediately, it “would effectively eliminate any hope for timely judicial review” on those actions, said a joint letter Thursday from 22 public interest and civil rights groups, including Public Knowledge, the Benton Institute for Broadband & Society and the Multicultural Media, Telecom and Internet Council.

Bureau-level decisions can’t be challenged in court because they aren’t final agency actions, and there’s no mechanism to compel the FCC chair to consider an appeal of a bureau-level order. “A Chairman that does not wish to permit judicial review of elimination of a rule through DFR may order a bureau to remove the rule, then simply refuse to take action on the application for review,” the letter said. That would effectively concentrate the power to eliminate rules in the hands of the chair, it added.

The DFR process partly stems from a White House order that urged agencies to use the Administrative Procedure Act’s good cause exception to skip notice and comment when deleting regulations. It's also based on recommendations from the Administrative Conference of the U.S. (ACUS), a federal agency that works on improving efficiency and fairness in rulemaking.

However, the FCC draft order appears to depart from the ACUS recommendations in several respects, said the public interest groups. “Although ACUS recommends that the agency revert to standard notice-and-comment rulemaking in the event of a single adverse comment, the draft Order requires multiple adverse comments -- at which point the bureau/Commission will consider whether to shift to notice-and-comment rulemaking."

Communications industry trade groups haven’t filed ex partes on the proposed rule, and industry attorneys told us that's because the two DFR items delete innocuous rules and the order's language limits the process to small-stakes, insignificant rules. The FCC’s DFR process is also conservative compared with what the White House urged in the April order, an attorney told us. The executive order told agencies to repeal without notice any rule seen as conflicting with a host of recent U.S. Supreme Court decisions limiting agency powers.

The FCC has already abandoned the idea that the DFR process would be used only for insignificant matters, said Cheryl Leanza of the United Church of Christ Media Justice Ministry. Expanding the bureaus’ delegated authority is “substantive” and “expansive.” The August DFR order also makes changes to when petitions for reconsideration can be filed in response, which is also a substantive change, she added. “At the very outset -- they're [already] not using it for purely unsubstantive, routine decisions,” Leanza said. “They're making policy changes, and this is just the first two.”

The correct way for the FCC to create a method for eliminating rules would be to establish a docket and seek public comment on the process, said Tech Freedom. “The Draft Direct Final Rule Order fails to indicate why seeking comment on such a significant change to FCC procedures would outweigh the benefits.” Deleting rules without notice and comment while creating procedures that limit public input also without notice and comment is “a double whammy,” the group added.

The FCC is using the DFR process despite there being no rule allowing it, Tech Freedom said. Though the July draft order cites past FCC actions taken without notice and comment, those actions were all either part of proceedings that had included comment periods elsewhere or were responses to court orders or statutes, the group said. “There are no rule provisions under which the Commission can issue a direct final rule, and we are unaware of any other instance in the 91-year history of the agency in which it has so acted.”

Changing Rules Without Notice

Twice in recent days, the FCC has also reset sections of its regulations to an earlier version, citing federal appellate court decisions: once regarding net neutrality rules and again concerning its one-to-one consent rule for robotexts (see 2507140049). In both cases, the agency said the notice-and-comment procedure wasn’t necessary. Administrative law experts told us this was generally appropriate.

If a court vacates a rule and that rule revises a prior rule, it could have the effect of the prior rule springing back into effect, emailed University of California, Los Angeles law professor Blake Emerson. Susan Dudley, former director of the George Washington University Regulatory Studies Center, said in an email that the Administrative Procedure Act doesn’t require the FCC to seek comment before removing the impermissible language and reverting to prior language when a court invalidates a regulatory section. However, if the court merely directed the FCC to revisit the offending language, it probably should seek comment first on how to change it to fix the legal issue, she added.

The GW center’s current director, Roger Nober, told us that if the older rule wasn't revoked by the new rule, then it would be back in force if the new rule is revoked. However, if the new rule revokes an older rule, then the old rule can’t be reinstated without notice and comment.

Pointing to the FCC’s one-to-one robotext consent order move, Jeff Lubbers, American University professor of practice in administrative law, told us that it was permissible for the FCC to excise the language in response to the court's ruling that provisions added in 2023 were contrary to the language of the statute. “In a sense that is what the Office of the Federal Register normally does when a court strikes down a regulation -- it removes it” from the Code of Federal Regulations, he said. “Its task is easier if the agency takes a step to do so.” The one-to-one consent rule situation is slightly different, since only a part of the regulation -- the 2023 addition -- is being removed from the code, he said.

If the FCC had the same leadership it did in 2023, the agency might have started a rulemaking to try to find a less objectionable addition, Lubbers said. “The current leadership is content to just excise it.” He told us that the Administrative Procedure Act allows for petitions for rulemaking, so a consumer group could take that approach to seek additional protections from robocalls.