FCC Chairman Brendan Carr’s announced plan to forgo notice-and-comment procedures when rescinding rules could run afoul of administrative law, some experts said. Carr said the agency may look to the Administrative Procedure Act's (APA) good-cause exception to notice-and-comment requirements in its efforts to remove no-longer-enforced rules (see 2505160064). An April White House memorandum said notice and comment aren't required when eliminating rules that it contends run counter to recent U.S. Supreme Court decisions like Loper Bright. FCC Chief of Staff Scott Delacourt said the commission might employ declaratory rulings as a way of eliminating what Carr determines are invalid rules.
FCC Commissioner Anna Gomez said Friday at a policy forum that removing all minority-party commissioners would weaken the agency’s ability to defend its rules in court. “The Communications Act doesn't just require three commissioners for quorum,” she told the Competitive Enterprise Institute and Tech Freedom audience. “It requires that there will be one member of a minority party, and that, in and of itself, could weaken whatever defense that a future FCC may have if there is no such single minority party member.” The agency also wouldn’t be able to present evidence that it had considered dissenting opinions, making it harder for a one-party FCC to present itself as an expert agency, said Gomez and Tech Freedom President Berin Szoka.
Some FCC rules targeted for the deregulatory ax under the agency’s “Delete, Delete, Delete” proceeding were defended in reply comments, according to filings this week in docket 25-133, where replies were due Monday. The proceeding saw legions of initial commenters mentioning regulations from all corners of the communications regulation sphere (see 2504140063, 2504140046 and 2504140037). Replies were similarly active and far-reaching.
Gray Media wants the full 11th Circuit U.S. Court of Appeals to rehear its legal challenge against a $518,283 forfeiture, the company said Monday in a petition for rehearing en banc, citing recent U.S. Supreme Court decisions and the 5th Circuit’s recent ruling against the FCC over a penalty assessed against AT&T (see 2504180021). Last month, the 11th Circuit upheld the FCC’s forfeiture order against Gray over a violation of ownership rules (see 2503070004) but vacated the penalty because the agency didn’t adequately provide notice that the violation was “egregious.”
A federal appellate court's rejection of a $57 million FCC fine -- calling it unconstitutional -- could force the agency to revisit and overhaul its enforcement processes. The agency clearly has authority to enforce laws requiring telecommunications companies to protect sensitive customer data, but the FCC "must do so consistent with our Constitution’s guarantees of an Article III decisionmaker and a jury trial," a three-judge panel of the 5th U.S. Circuit Court of Appeals ruled last week as it vacated the fine against AT&T that stemmed from handling of customer data. T-Mobile and Verizon are challenging similar fines levied in the same April 2024 enforcement action. In siding with AT&T, the court said it was guided by the U.S. Supreme Court's 2024 Jarkesy decision regarding whether federal regulatory agencies can bring in-house proceedings to enforce civil penalties.
The FCC lacks authority to impose new Commercial Advertisement Loudness Mitigation (Calm) Act requirements on current licensees or extend the rules to streaming services, said industry commenters in filings in docket 25-72, which were due Thursday. A nonprofit dedicated to fighting noise pollution and the Hearing Loss Association of America wrote in support of tougher FCC Calm Act enforcement, while NAB, NCTA and the Streaming Innovation Alliance (SIA) opposed any further ad loudness rules. “The Commission cannot -- and should not -- alter the CALM Act technical standards or impose new obligations,” NCTA said.
The FCC and FTC are moving toward trying to rein in what they see as overly broad applications of Section 230 of the Communications Decency Act and to reverse what their agency leaders call censorship by social media platforms. Agency watchers said they expect the FCC to issue an advisory opinion soon, though some see such an opinion as more performative than practical. FCC Chairman Brendan Carr has repeatedly said that addressing "the censorship cartel" is one of the agency's priorities (see 2411210028). His office and the FTC didn't comment. FCC Commissioner Anna Gomez has been critical of the possibility of a Section 230 advisory opinion (see 2502240062).
A White House executive order that says agencies can dispense with notice-and-comment requirements when repealing some rules is unlikely to have an immediate impact on the FCC because Chairman Brendan Carr has at his disposal many traditional ways of deleting rules, academics, industry lobbyists and attorneys said in interviews. Along with the order on notice and comment, the White House also released an order requiring agencies to scuttle “anti-competitive” regulations and another repealing showerhead measures that could affect how agencies justify decisions.
The FCC should use a still-open 2017 proceeding to eliminate the national ownership cap, NAB said in a letter to the agency Wednesday. The rule bars any single TV broadcaster from owning stations that, as a group, reach more than 39% of the total number of U.S. TV households. “This outmoded rule prevents broadcasters -- but not any other video service providers -- from competing for audiences and vital advertising revenues across the county,” NAB said.
President Donald Trump’s executive order putting independent regulatory agencies under greater White House control (see 2502190075) should result in stronger regulatory analysis by those agencies and better evidence supporting their arguments, said George Washington University Regulatory Studies Center Director Susan Dudley. Speaking Wednesday at an administrative law panel discussion by the University of Pennsylvania’s Penn Program of Regulation, Dudley said the order also should lead to those independent agencies better coordinating their work across the government.