Sens. Ed Markey, D-Mass., and Ron Wyden, D-Ore., slammed the ruling of the 6th U.S. Circuit Court of Appeals (see 2501020047) vacating the FCC’s April net neutrality order. In a statement released Thursday, the lawmakers said, “Without net neutrality, consumers, small businesses, and innovators alike will face increased costs, reduced choice, and less competition. It is a lose-lose-lose.” They added, “This ruling upends the fundamental principle that internet service providers should not act as gatekeepers, favoring certain users, content, or services over others." Markey and Wyden said the decision also shows why the U.S. Supreme Court was wrong when it overturned the Chevron doctrine. The opinion “makes basic errors about communications technologies, neatly illustrating why expert regulators, not judges, are best positioned to make complex public policy decisions.” Andrew Schwartzman, senior counsel at the Benton Institute for Broadband & Society, in an email wrote that the opinion “misreads” the 1996 Telecom Act “in finding that broadband internet service is not subject to the regulatory requirements of Title II of the Communications Act.” Among other concerns, “that deprives the FCC of the power to protect national security, insure that competitive broadband suppliers can have access to necessary distribution outlets and endangers wireless access programs for low-income consumers.” The “good news” was in the judges didn’t do, Schwartzman said. The three-judge panel “gave a narrow reading to the impact of the recent Supreme Court’s Loper Bright decision overruling the Chevron doctrine,” he said. The court also didn’t “rely on the carriers’ ‘major question doctrine’ arguments, so that the FCC will retain the power to regulate various aspects of broadband service without future Congressional action.” But Seth Cooper, Free State Foundation director-communications policy studies, said the court offered a “straightforward reading” of the Communications Act. The opinion was “refreshing because it shows how traditional tools of statutory interpretation can be used to resolve even seemingly technical questions like the regulatory classification of broadband,” Cooper emailed: “It’s the type of decision that eluded us so long as lower courts were subject to the ‘Chevron doctrine’ and effectively required to rationalize even far-fetched agency interpretations or re-interpretations of supposed ambiguous statutory provisions.”
The 6th U.S. Circuit Court of Appeals ruling overturning the FCC’s latest net neutrality order Thursday was based on the court’s reading of the Communications Act and failed to dive into major questions items, as laid out in recent U.S. Supreme Court decisions (see 2409030030). It also means the next FCC, under President-elect Donald Trump, likely won’t spend its early days on a reversal of the order, which was approved 3-2 in April (see 2404250004).
Consumer groups representing the blind support NAB’s request for FCC clarification of its audible crawl rule, according to comments filed in docket 12-107 by last week’s deadline. The FCC has continuously waived the rule for nearly a decade because compliance isn’t technologically feasible, according to broadcasters. Last week, the FCC granted its latest, a six-month retroactive waiver (see 2412200055). “To the extent that information provided in an accessible text crawl is the same as the information provided by a nontextual graphic, we are tentatively supportive of a minor modification of the rule,” the American Foundation for the Blind and the American Council of the Blind said in a joint filing. In addition, any FCC effort to enforce the audible crawl waiver would be “legally suspect’ in the wake of the U.S. Supreme Court’s recent ruling overturning Chevron deference, Gray Local Media commented.
FCC Commissioner Brendan Carr’s recent warning letter to Disney CEO Bob Iger (see 2412240021) appears politically motivated, could be read as a reversal of Carr’s past stances on sticking to the text of FCC rules and evokes the long-defunct fairness doctrine, according to former FCC commissioners, academics and attorneys we interviewed. President-elect Donald Trump has selected Carr to head the FCC.
Free State Foundation President Randolph May said this week that Senate Commerce Committee member Sen. Amy Klobuchar, D-Minn., was wrong to argue (see 2412120066) that the U.S. Supreme Court’s July overturning of the Chevron doctrine in Loper Bright v. Raimondo was detrimental because it removed consistency from the regulatory process. Klobuchar made the argument during a Broadband Breakfast event earlier this month. The lawmaker “is right that stability in the law is important for businesses so they can intelligently plan investments and judiciously execute other business decisions,” May said Tuesday in a Washington Times opinion piece. But she “and others who take the same line should know better, especially those … who are familiar with communications law and policy. They have witnessed firsthand how reliance on the Chevron doctrine has promoted instability in the legal regime governing broadband internet providers under the guise of ‘net neutrality.’ The back-and-forth ‘switcheroos’ between the imposition of heavy-handed public utility regulations and a light-touch regulatory regime is a prime example.” Each time there has been a Democratic majority over the past decade, the FCC “has adopted stringent utility regulations for broadband providers,” while “each time the Republicans regained control, the FCC reinstituted a deregulatory regime,” May said: That’s likely to happen again when President-elect Donald Trump returns to office Jan. 20.
The 9th U.S. Circuit Appeals Court on Tuesday rejected a petition for review that China Unicom (Americas) brought seeking to overturn the FCC’s 2022 decision revoking the company’s Section 214 authority to operate in the U.S. (see 2201270030). The decision was 2-1 with Judge Daniel Collins writing a majority opinion supported by Judge Kenneth Lee. Judge Carlos Bea dissented. The majority held that the commission “correctly interpreted its authority under the Communications Act” and that the “grant of authority to ‘issue’ certificates to telecommunications carriers must be understood as carrying with it an implied incidental authority to revoke such certificates.” The court reviewed the FCC’s authority under the U.S. Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondi, which overturned the Chevron doctrine, and found that the revocation was within the FCC’s discretion to act (see 2406280043). “There was no indication in the statutory text or structure that Congress denied the FCC any relevant authority to revoke a carrier’s [Section] 214 certificate,” the majority held. “The Lord giveth and the Lord taketh away,” Bea wrote in his dissent: “Today, the majority declares that” the FCC “may act as the Lord in canceling telecommunications certificates. … I disagree. Unlike the majority, I find myself constrained by the text of the statute and a regard to separation of powers principles of our Constitution to resolve this case otherwise.” All three judges were Republican appointees -- President George W. Bush appointed Bea and President Donald Trump appointed Lee and Collins.
The Government Wireless Technology & Communications Association (GWTCA) and state groups asked the FCC to delay a requirement that current 4.9 GHz licensees provide it with granular licensing data not later than June 9, or face cancellation of their licenses. Proponents of the delay were optimistic on Monday that the FCC would approve the stay.
The U.S. Supreme Court decision doing away with Chevron deference won’t grind the next FCC to a halt but could prompt congressional action on the USF, former FCC officials said during panel discussions Thursday at Broadband Breakfast’s "Broadband in the Trump Administration" event.
Two groups are challenging the FCC’s October order giving the FirstNet Authority, and indirectly AT&T, use of the 4.9 GHz band (see 2410220027). The Coalition for Emergency Response and Critical Infrastructure (CERCI) is challenging the order, while the Public Safety Spectrum Alliance (PSSA) is protesting aspects of it. Both recently filed petitions for review in the U.S. Court of Appeals for the D.C. Circuit.
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.