The FCC’s digital discrimination broadband order “is illegal on at least three grounds,” the Pacific Legal Foundation and the Washington Legal Foundation said in an 8th U.S. Circuit Appeals Court amicus brief Tuesday (docket 24-1179). The brief supports the 20 industry petitioners that seek to vacate the order as unlawful (see 2404230032). When Congress grants lawmaking authority to a federal agency, it must lay down by legislative act an intelligible principle to which the agency can conform, according to the brief. Section 60506 of the Infrastructure Investment and Jobs Act directs the FCC to adopt rules that facilitate equal access to broadband, including by preventing digital discrimination of access based on income level, race, ethnicity, color, religion or national origin, it said. The industry petitioners “persuasively explain” that Section 60506's language doesn’t permit the FCC to implement disparate impact liability, it said. But if it did, then that language violates the nondelegation doctrine by failing to provide an intelligible principle governing such liability, it said. “Virtually any action that a regulated entity can take will have a disparate impact along one or more dimensions of income level, race, ethnicity, color, or religion,” said the brief. That’s especially true because of the inclusion of income level, “which means that any decision by a covered entity lowering or raising prices will have a disparate impact based on income and thus come within the FCC’s enforcement authority,” it said. The authority to promulgate disparate impact rules “is a major question to which Congress is required to speak clearly,” it said. Because Congress didn’t speak “clearly to this particular question” in the statute, the FCC’s order is “invalid,” it said. The order also requires covered entities to “treat people differently based on race, in violation of the constitutional guarantee of equal protection,” it said.
Major Questions Doctrine
The Universal Service Administrative Co's. (USAC) role in administering the FCC's Universal Service Fund programs "is purely administrative," the FCC told the U.S. Supreme Court in response to Consumers' Research's challenge of how the commission determines quarterly contribution factors (see 2401100044). USAC "must comply with detailed regulations issued by the FCC" and "helps the FCC compute the amount of each quarterly payment" carriers must contribute, the agency said in an opposition brief filed in docket 23-456.
Catholic broadcasters and groups filed two petitions for reconsideration against the FCC’s equal employment opportunity order in part because it updates Form 395-B to account for nonbinary employees.
HOT SPRINGS, Virginia -- Restoring the FCC’s lapsed spectrum auction authority is a major priority of the Senate Commerce Committee and the House Communications & Technology Subcommittee, Democratic and Republican staffers said Saturday at the FCBA annual retreat here. John Lin, House Communications and Technology Subcommittee Republican senior counsel, said while Republicans would consider discussing continuing the affordable connectivity program, changes to it must come first. Speakers also covered next steps for the cyber trust mark and interagency relations on spectrum conflicts.
Most industry groups opposed the FCC's decision restoring net neutrality rules and reclassifying broadband internet access service (BIAS) as a Communications Act Title II service Thursday. Most disagreed with Chairwoman Jessica Rosenworcel on the order's legal standing, warning it could likely be overturned if a challenge is brought (see 2404250004). The Wireless ISP Association will "carefully review" the order and "determine what legal recourse we should take," Vice President-Policy Louis Peraertz said. Several consumer advocacy groups praised the order.
Republican members of the House and Senate Commerce committees echoed arguments from opponents of the FCC’s draft net neutrality order in a letter to Chairwoman Jessica Rosenworcel ahead of the commission’s expected adoption of the new rules (see 2404190038). The panels’ Republicans are eying a range of potential actions countering the net neutrality bid (see 2404180058). Meanwhile, House Communications Subcommittee Chairman Bob Latta (Ohio) and 11 other Republicans urged Rosenworcel last Thursday to “leverage all resources at its disposal for a successful 5G Fund that maximizes the reach and effectiveness of the program.”
The Coalition for Emergency Response and Critical Infrastructure (CERCI) told the FCC in a filing it lacks legal authority to award control of the 4.9 GHz band to the FirstNet Authority (FNA). New Street’s Blair Levin highlighted the filing Wednesday in a note to investors. “The Commission lacks statutory authority under the Middle Class Tax Relief and Job Creation Act of 2012 to award the FNA a license beyond the 700 MHz band addressed by that Act, and no other statute authorizes such a transfer,” CERCI said in a filing in docket 07-100: “Even if the FCC were authorized to make this grant, the FNA is not statutorily authorized to receive it” and “attempting to undertake this grant based on existing statutory authorities would, in any case, violate the major questions doctrine and raise nondelegation issues.” If lawyers at the FCC “agree with the argument, it moots the policy arguments about the relative benefits of national versus local control of spectrum and prevents the reallocation of the 50 megahertz of 4.9GHz spectrum licenses at issue,” which would be a “win” for Verizon and T-Mobile, Levin said. The arguments “are designed to have appeal to both Democrats and Republicans, who, in particular, are more sympathetic to arguments based on the major questions doctrine and the nondelegation doctrine,” he said. CERCI was formed last year by some public safety groups, the Edison Electric Institute, T-Mobile, UScellular, Verizon and the Competitive Carriers Association (see 2311160052). AT&T declined comment Thursday.
The net neutrality draft order on the FCC's April 25 open meeting agenda (see 2404030043) will face much the same legal arguments as the 2015 net neutrality order did, with many of the same parties involved, we're told by legal experts and net neutrality watchers.
The FCC will take a series of steps to reestablish the commission's net neutrality framework and reclassify broadband internet access service (BIAS) as a Communications Act Title II telecom service in a declaratory ruling and order (see 2404030043). A draft of the items to be considered during the agency's April meeting, released Thursday, would establish "broad" and "tailored" forbearance for ISPs. The draft doesn’t make a final determination on how network slicing should be treated under the rules.
The FCC’s administrative hearing process increasingly results in huge discovery requests that can be expensive for entities with matters before the agency’s administrative law judge and faces an uncertain future due to a host of recent administrative law cases, panelists said during a Federal Communications Bar Association virtual event Tuesday. Discovery is the most time-consuming part of the process, said FCC ALJ Jane Halprin. In addition, the expense of pursuing a lengthy case before the ALJ is sometimes more than many licensees can stomach, said Smithwick and Belendiuk attorney Arthur Belendiuk during a separate panel. “Even if you win, you might lose,” he said.