The extent to which the U.S. Supreme Court decides the USF challenge on theoretical rather than practical grounds could have major implications for whether the court issues a decision that overturns the program's funding mechanism. The court said last week it will hear a challenge to the 5th U.S. Circuit Court of Appeals' 9-7 en banc decision, which found the USF contribution factor is a "misbegotten tax.” Consumers' Research challenged the contribution factor in the 5th Circuit and other courts.
Major Questions Doctrine
A plan for cutting regulations and federal institutions such as the FCC could target broadband access programs and media regulations, but it's likely that a wave of litigation will stymie it, administrative law professors and attorneys told us. Future Department of Government Efficiency (DOGE) heads Vivek Ramasawamy and Space X CEO Elon Musk laid out their plans in a Wall Street Journal opinion column. “It's not to say that maybe some of these changes shouldn't be happening, but, you know, they're taking a wrecking ball to fix something that requires a little bit more finesse than that,” said University of Idaho law professor Linda Jellum. Asked about possible DOGE cuts at the FCC, incoming FCC Chairman Brendan Carr last week told reporters, “There's no question, there's tons of room for driving more efficiency at the FCC." He didn't elaborate.
The incoming Republican administration and Congress will likely work at rolling back many of the current FCC’s policies through a combination of agency action, court decisions and the Congressional Review Act (CRA), attorneys and analysts told us in interviews. The CRA's threat also will likely limit the current FCC's agenda, they said. “The CRA is kind of looming over anything the FCC wants to try to do before the administration switches over,” said Jeffrey Westling, American Action Forum director-technology and innovation.
A three-judge appeals court panel hearing a challenge (docket 24-7000) of the FCC's Title II reclassification of broadband questioned industry groups and the agency Thursday about the major questions doctrine (see 2409030030). Oral argument was held at the 6th U.S. Circuit Court of Appeals, where judges also questioned the relationship between the doctrine and Chevron deference, as well as the statutory interpretation of the Communications Act and the FCC's changing positions over time.
Broadcasters, MVPDs and network programmers want the FCC to shelve plans that require disclosures about the use of AI in political ads because they’re unworkably burdensome, exceed agency authority and won’t affect digital platforms, said reply filings in docket 24-211.
The FCC's reclassification of broadband as a Title II telecom service under the Communications Act is a "straightforward" violation of the major-questions doctrine, ISPs told the 6th U.S. Circuit Court of Appeals in a reply brief filed Wednesday (docket 24-7000). USTelecom, NCTA, CTIA, ACA Connects, the Wireless ISP Association, and several state telecom groups argued the provision of internet access has "always been the core driver of the information-service classification and that function remains unchanged today" (see 2409120032). The FCC "offers little more than its say-so to support its contrary view," the coalition said, adding that its "forced forbearance and strained reclassification of mobile broadband" underscores "how poorly broadband fits into the Title II scheme." The groups argued that the FCC "lacks any good explanation from departing from its prior view" that the costs of reclassification outweigh any benefits and hasn't addressed the major questions doctrine's "obvious political salience." Congress didn't clearly authorize the FCC to classify broadband as a telecom service, the groups noted, adding it should remain a Title I information service because it includes domain name systems and caching, which are "integral information-processing components." The coalition also argued the FCC lacked statutory authority to classify mobile broadband as a commercial mobile service under Title II because it's not part of the public switched network, or the ten-digit telephone network, which is "distinct" from the public internet.
The FCC's digital discrimination rules "pile overreach on overreach," said attorney Morgan Ratner on behalf of the Minnesota Telecom Alliance (MTA) and other industry groups challenging the commission's rules Wednesday during oral argument in the 8th U.S. Circuit Appeals Court (see 2407300048). The rules are based on an "unprecedented disparate impact scheme that is in many ways the broadest the federal government has ever seen," the lawyer added. None of the FCC's decisions in its order is based on a "plausible understanding" of Congress' intention.
Legislators, broadcasters, cable groups, the Heritage Foundation and civil rights groups disagree on whether the FCC can or should require disclosures for political ads created with generative AI, according to comments filed in docket 24-211 by Thursday’s deadline.
The FCC urged that the 5th U.S. Circuit Appeals Court reject Maurine and Matthew Molak's challenge of the commission’s October declaratory ruling clarifying that the use of Wi-Fi on school buses is an educational purpose and eligible for E-rate funding (see 2408300027). In a brief Wednesday, the agency argued the Molaks lack standing to bring the challenge and the agency acted within the law when it addressed school bus Wi-Fi.
The FCC defended its decision to reclassify broadband as a Title II telecom service under the Communications Act in a reply brief to the 6th U.S. Circuit Court of Appeals Wednesday (docket 24-7000). It argued the court's decision staying the order pending review was done "without showing adequate statutory support." Moreover, the motions panel lacked "the benefit of the full briefing presented here" (see 2408130001).