The U.S. solicitor general’s announcement that DOJ plans to stop defending removal protections for multimember commissions at independent agencies could include the FCC even though the agency wasn’t mentioned in the letter, Free State Foundation President Randolph May wrote in a blog post Friday. In the letter (see 2502130063), acting Solicitor General Sarah Harris said DOJ will ask the Supreme Court to overturn the 1935 ruling in Humphrey's Executor v. FTC that protects independent commissioners from presidential removal. May wrote that the FCC’s structure is “very much like” the agencies named in the letter -- the FTC, National Labor Relations Board and Consumer Product Safety Commission. “If the SG's view of the president's removal power regarding the three identified agencies is correct, it may be difficult to distinguish the FCC,” he said. However, unlike those agencies, the FCC’s governing statute -- the Communications Act -- doesn’t contain a “for-cause” limitation on presidential removal of commissioners, May wrote. The SG’s letter relied heavily on SCOTUS' 2019 Seila Law v. CFPB decision, in which the high court ruled that limiting the ability of the president to remove commissioners only for cause was unconstitutional. The Communications Act’s lack of “for-cause” restrictions “could possibly make all the difference” on whether a future SCOTUS ruling on Humphrey’s Executor allows for easier White House removal of commissioners, May said.

Consumers’ Research, the conservative group that is a self-described opponent of “woke” culture, told the U.S. Supreme Court that the way the FCC assesses payments for the USF is “a historic anomaly at odds with 600 years of Anglo-American practice.” SCOTUS will hear FCC v. Consumers' Research March 26, challenging the 5th U.S. Circuit Court of Appeals’ 9-7 en banc decision invalidating part of the USF program (see 2501090045), in part because the FCC delegated authority for overseeing the program to the Universal Service Administrative Co.

Acting U.S. Solicitor General Sarah Harris told Senate Judiciary Committee ranking member Dick Durbin, D-Ill., on Wednesday that DOJ plans to stop defending tenure protections that bar a president from firing a commissioner from an independent agency at will, including FTC commissioners. Harris said she plans to ask the U.S. Supreme Court to overturn that precedent, established in its 1935 Humphrey’s Executor v. U.S. ruling, a shift that would also affect the FCC. DOJ “has determined that certain for-cause removal provisions that apply to members of multi-member regulatory commissions are unconstitutional,” Harris said in a letter to Durbin. The high court has held that Humphrey’s Executor “applies only to administrative bodies that do not exercise ‘substantial executive power’” and has explained it “misapprehended the powers of the ‘New Deal-era FTC’ and misclassified those powers as primarily legislative and judicial.” She said the precedent “thus does not fit the principal officers who head” the FTC and two other agencies: the National Labor Relations Board and Consumer Product Safety Commission. The U.S. Chamber of Commerce and other conservative groups asked SCOTUS in July to overturn Humphrey’s Executor in Consumers' Research et al. v. Consumer Product Safety Commission (see 2407290027).

Sen. Ed Markey of Massachusetts said Thursday he led two other Senate Commerce Committee Democrats -- Ben Ray Lujan of New Mexico and Gary Peters of Michigan -- in raising concerns with FCC Chairman Brendan Carr and Republican Commissioner Nathan Simington about recent commission actions they see as “weaponizing its authority over broadcasters and public media for political purposes.”

The American Federation of Government Employees (AFGE) on Wednesday slammed the latest executive order from President Donald Trump's administration aimed at cutting the federal workforce. Trump signed the EO Tuesday that said he would require the heads of federal agencies to make "large-scale [staff] reductions.” The continuing assault has sparked anxiety at the FCC and other agencies critical to the communications industry (see 2502070047). Appearing with Elon Musk, Trump told reporters that Musk's Department of Government Efficiency had uncovered billions of dollars in fraud, but he didn’t offer details.

Three conservative groups on Tuesday urged the U.S. Supreme Court to use its upcoming decision in FCC v. Consumers' Research to provide clarity on when agencies can delegate authority to private companies. SCOTUS will consider the 5th U.S. Circuit Court of Appeals’ 9-7 en banc decision invalidating part of the USF program (see 2501090045), in part because the FCC delegated authority for overseeing the program to the Universal Service Administrative Co. (see 2412100060).

The FCC doesn’t have as much power as Chairman Brendan Carr thinks it does and is likely to be corrected by the courts, former FCC Chief Counsel Robert Corn-Revere wrote in a column for the Columbia Journalism Review last week. Framed as a letter to Carr, the column is called “A Plea for Institutional Modesty.” Now chief counsel for the Foundation for Individual Rights and Expression, Corn-Revere served under acting FCC Commissioner James Quello, a moderate Democrat. “If I were your adviser, this is not how I would want history to remember you,” Corn-Revere wrote, calling Carr’s first weeks as chairman “jarring” when compared with his past statements as a commissioner on free speech and the role of the FCC. The U.S. Supreme Court has ruled that the FCC’s rules don’t give it authority over the types of programming broadcasters can offer, Corn-Revere noted. “In 2025, any aggressive action by the FCC to regulate broadcast programming would provide an opportunity to challenge whatever remains of the public interest standard as a reason to treat broadcasters differently from other media,” he said. “FCC meddling in editorial decisions regarding political coverage and news judgment would provide an easy case for limiting the FCC’s authority.” Corn-Revere also wrote that Carr can’t get around the limits on FCC authority by exerting informal pressure on entities or “jawboning.” The U.S. Court of Appeals for the D.C. Circuit “is keenly aware that the FCC can abuse its authority in this way and has limited ‘raised eyebrow’ tactics in past cases,” he said, adding that SCOTUS has also recently reaffirmed that government officials violate the First Amendment by using threats to restrict speech. “Bottom line, given your position, writing threatening letters may be enough to get you into constitutional hot water.” Governmental officials “who have tried to use their power to muzzle the press for short-term political gain have not been treated well by history.” You swore an oath "to uphold the Constitution and laws of the United States, and you know very well how these things work. You might at least consider not actively reinforcing uninformed social media rants.” The FCC didn’t comment.

Verizon urged the 2nd Circuit U.S. Court of Appeals to overturn a $46.9 million penalty from the FCC for not adequately protecting subscribers’ real-time location information that commissioners approved on a 3-2 vote last year (see 2404290044). Last week, the 5th Circuit heard AT&T's oral argument against a $57 million fine the commission imposed (see 2502030050). The government defended the order in the 5th Circuit even though current FCC Chairman Brendan Carr and Republican Commissioner Nathan Simington had dissented.

The U.S. Supreme Court on Monday scheduled oral argument for March 26 in the government’s challenge of the 5th U.S. Circuit Court of Appeals' 9-7 en banc decision last year that sided with Consumers' Research and found that the USF contribution factor is a "misbegotten tax.” SCOTUS agreed in November to hear what some see as the most consequential FCC case in years (see 2412100060). Members of Congress, former FCC commissioners, ISPs and public interest groups are among those urging SCOTUS to overturn the 5th Circuit decision.

Expect another year of declining net additions of broadband subscribers, Wolfe Research analyst Peter Supino said Wednesday in a Fiber Broadband Association webinar. Net adds by fiber, cable and DSL were around 2.5 million in 2023 and 2.2 million last year, and will likely be fewer than 2 million this year, he said. While cable's lost broadband subscribers are often attributed to fiber and fixed wireless access competition, they might actually be due to incumbents feeling most acutely those declining net additions, he said. Cable has clearly lost its residential broadband monopoly, with close to two-thirds of households having fiber operator options alongside cable, Supino said. In five years, 75%-80% of households will have the choice of fiber and cable, he noted. Traditionally, cable saw its broadband subscriber numbers grow as the number of homes its network passed increased. Since broadband subscriber numbers are no longer growing in lockstep with number of homes its network passes, cable becomes more capital intensive, he said.