FCC Direct Final Rule Process Draws Adverse Comments
The FCC’s new direct final rule process doesn’t give enough time and information to the public, provides too much authority to the bureaus, and is of questionable legality, said local governments, public interest groups and civil rights groups in filings in docket 25-133 last week. All the comments objected to the DFR process, rather than specific rules the process is being used to eliminate in orders voted at the FCC’s July (see 2507240055) and August (see 2508070037) meetings.
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First raised in a July draft item, the direct final rule process replaces the usual notice and comment timelines with an abbreviated comment period that could range from 10 to 30 days. Both DFR items voted so far used a 10-day period. Items targeted for deletion under a DFR process are automatically deleted after the abbreviated comment period unless the FCC receives "significant” comments objecting to the deletion.
“Allowing FCC bureaus and offices to issue regulatory changes using the DFR process is at best confusing, and likely illegal,” said a joint filing from the National Consumer Law Center, Public Knowledge, the National Consumers League and others. It's unclear that rule changes made through the DFR process at the bureau level would be able to be challenged in court, the groups added. “If the DFR is finalized as written, it will undoubtedly lead to multiple challenges, which will be costly and time-consuming. We urge the Commission to clarify these issues before proceeding with the DFR as written.” The DFR process is itself too important a change to be adopted using the notice and comment-less DFR process, said The Utility Reform Network (TURN).
The United Church of Christ Media Justice Ministry (UCC), the American Library Association, the Benton Institute for Broadband & Society, the National Hispanic Media Coalition and other groups said the DFR process “will have significant impact on the public by creating a new process, outside of the Commission’s rules, to rapidly and with little notice change regulations.” The FCC lacks codified rules describing this process, the filing noted. To establish a fair DFR process, the FCC should do so “through notice-and-comment rulemaking and seek comment on an appropriate process for DFRs,” TURN said.
A host of local governments – including Fairfax County, Virginia, Los Angeles County, Boston, and Washington, D.C. -- said the process is “insufficient to ensure that future Commission decisions will fall within the good cause exception of the Administrative Procedure Act.” The 10-day time period for adverse comments is “too short” and “the process adopted for future DFRs overly burdens the public seeking to review DFRs," the governments said. The two DFR items already voted on “offer minimal explanation for why the rules are being removed,” said the filing from UCC and other groups. “There is only one sentence describing elimination of many rules and each rule removal is described in a footnote with a parenthetical about the change. It is not enough.”