The U.S. Supreme Court’s decision eliminating Chevron deference shouldn’t affect the 11th U.S. Circuit Court of Appeals' approach to Gray Television’s appeal of an FCC $518,000 forfeiture order, the agency said in a supplemental brief Wednesday. The 11th Circuit requested supplemental briefs from the FCC and Gray after SCOTUS’ Loper Bright v. Raimondo decision (see 2407110058). The agency applied the best reading of its rule against affiliate swaps and so doesn’t require special deference for the court to rule in its favor, the FCC said. Gray’s argument that its purchase of a station affiliation in Anchorage didn't “result” in a top-four duopoly because Gray already owned such a duopoly “is not the best or most natural reading” of the text of the FCC’s rules, the agency said. The court should also favor the FCC’s interpretation of its own rules under another SCOTUS precedent that wasn’t affected by Loper Bright, Kisor v. Wilkie, the FCC said. Kisor requires that the court consider a regulation as if there were no agency interpretation, but if ambiguity remains, it allows the court to conclude that the agency interpretation may be appropriate. Gray has argued that the Loper Bright decision invalidated Kisor precedent. “This Court is not the proper forum to revisit binding Supreme Court precedent,” the FCC said. The 11th Circuit shouldn’t consider Gray’s arguments that the FCC doesn’t have statutory authority over the sale of a station’s affiliation because Gray didn’t raise the argument earlier in the case and because it's outside the scope of the supplemental brief the court requested, the agency said. Gray “improperly expanded the scope of the supplemental briefing, and the court may not reach arguments on which the FCC had no ‘opportunity to pass’ in the administrative proceedings,” the FCC said.
CTIA and the U.S. Chamber of Commerce backed AT&T’s challenge of the FCC's fine for data violations, filing amicus briefs in the 5th U.S. Circuit Court of Appeals. On a 3-2 vote in April, commissioners imposed fines against the three major wireless carriers for allegedly not safeguarding data on customers' real-time locations years earlier (see 2404290044).
FCC Chairwoman Jessica Rosenworcel vowed she will continue fighting for the commission's net neutrality order following the 6th U.S. Circuit Court of Appeals' decision that stayed the rules Thursday (see 2408010065). "The American public wants an internet that is fast, open and fair," and Thursday's decision "is a setback, but we will not give up the fight for net neutrality," Rosenworcel said.
The FCC shouldn’t apply online public information file (OPIF) requirements to low-power television stations, LPTV groups, NAB, the National Religious Broadcasters, Gray Television and numerous individual broadcasters say in comments filed in docket 24-147 posted by Wednesday.
Members of the congressional Universal Service Fund revamp working group are considering whether, and how much, the 5th U.S. Circuit Court of Appeals' ruling will affect their rollout of a framework for overhauling the program. The court ruled last week that the FCC's USF contribution factor is unconstitutional (see 2407240043). Experts believe lawmakers will likely factor the ruling into the framework, but it could be moot should the U.S. Supreme Court reverse the decision on appeal (see 2407260044). Uncertainty about USF’s future will likely extend the working group’s already lengthy process, lobbyists told us.
A case before the U.S. Supreme Court, Consumers' Research, et al. v. Consumer Product Safety Commission, potentially has major implications for the FCC and FTC, and could permit a president to fire a commissioner at will, industry lawyers said. The U.S. Chamber of Commerce and other conservative groups are asking SCOTUS in amicus filings to grant the writ of certiorari from Consumers' Research.
The FCC’s rule barring stations from using affiliation deals to get around ownership limits falls outside the agency's congressional authority, Gray Television told the 11th U.S. Circuit Court of Appeals Wednesday. In a supplemental brief (docket 22-14274), Gray said the appellate court should determine that authority's scope and meaning without deference to the commission. The 11th Circuit earlier this month requested a brief about the effects of the U.S. Supreme Court's Loper Bright decision (see 2407110058). Gray is appealing a $518,000 forfeiture order over its alleged violation of the FCCs "Note 11" affiliation deals rule related to its purchase of the network affiliation of an Anchorage TV station (see 2301040059). The FCC has 14 days to respond to the supplemental brief. In its brief, Gray said Loper Bright mandates that the court first resolve whether the agency had statutory authority to promulgate and enforce Note 11. It said while Congress gave the FCC regulatory authority over license transfers, Note 11 and the forfeiture order are about what the FCC considers the "functional equivalent" of a license transfer.
If courts rule that the U.S. Supreme Court’s SEC v Jarkesy decision means a wide swath of FCC enforcement proceedings require jury trials, the agency may not be able to pursue any enforcement without congressional authority, former FCC Office of General Counsel and Enforcement bureau veterans said Wednesday.
The FCC approved on a 3-2 party line vote an NPRM seeking comment on requiring disclosures for political ads that use AI-generated content. The proposal, which was approved July 10 on circulation but not released until Thursday, doesn’t specify the timing of an eventual order. Commissioner Brendan Carr and Federal Election Commission Chair Sean Cooksey condemned it as an attempt to interfere with the 2024 election. The FCC declined to comment on the intended timing of a final rule, or the delay in the item’s release.
The future of telecom regulation is fraught with uncertainty post-Chevron, Mintz lawyers concluded during a webinar Wednesday, focusing primarily on four recent U.S. Supreme Court Cases: Loper Bright (see 2406280043), Ohio v. EPA and SEC v. Jarkesy (see 2407220048) and Corner Post (see 2407010035).