The major questions doctrine "is not applicable" to reclassifying broadband as a Communications Act Title II service, Public Knowledge told FCC Wireline Bureau, Public Safety and Homeland Security Bureau, and Office of General Counsel staff. The group said in an ex parte filing posted Tuesday in docket 23-320 that the commission "would need to claim a new power or reverse a long-standing interpretation of a statute" for the doctrine to be considered. The FCC "does not need evidence of new harms to justify its reversal" to "the status quo ante," the group said, adding the commission "only needs to assert that the 2018 reversal does not comport with the FCC’s mandate to ensure universal service and promote public safety." Public Knowledge also asked the FCC not to forbear providers from Section 254(d) rules governing USF contributions, noting any contribution requirements would require the commission to first establish a specific mechanism (see 2403080055).
Industry widely opposes the FCC's proposal to adopt additional reporting requirements for providers as part of the commission's efforts to combat digital discrimination. Commissioners sought comment on an NPRM proposing to adopt annual reporting and internal compliance program requirements following a November order adopting rules to curb discrimination (see 2401310052). Comments were posted Tuesday in docket 22-69. Consumer advocates and state officials urged the FCC to adopt the proposed requirements and establish an Office of Civil Rights within the commission.
Following last week’s oral argument in two Chevron cases before the U.S. Supreme Court (see 2401170074), the future of the doctrine appears in doubt.
Industry opposition to an FCC proposal reclassifying broadband as a Title II service under the Communications Act continued in reply comments posted through Thursday in docket 23-320 (see 2312150020). Most groups warned reclassification would stifle competition. Some consumer groups disagreed, urging the FCC to reinstate its net neutrality rules without preempting state and local governments.
As the FCC sees increased dissent votes by Republican minority commissioners, those dissents frequently challenge agency authority. That's becoming a more common line of argument among GOP commissioners across federal regulatory agencies, often based on the U.S. Supreme Court's major questions doctrine, administrative law experts tell us. Republican commissioners and former commissioners say dissent votes are a reflection of the Democratic majority pushing partisan issues. Commissioner Nathan Simington in a statement said he is "disappointed that the Commission is now focused on misguided, partisan items, but I remain hopeful that we can continue making progress on real, non-partisan solutions to long-standing technical issues."