In a dissent attached to a combined $3.6 million forfeiture against Sinclair Broadcast and others over kidvid violations, FCC Commissioner Nathan Simington has vowed he will dissent from monetary forfeitures until the agency “formally determines the bounds of its enforcement authority.” Simington's move comes in the wake of the recent U.S. Supreme Court decision SEC v. Jarkesy. The order was approved 3-2, with Commissioner Brendan Carr also dissenting. The forfeiture order was adopted Aug.14, but not released until Thursday. The FCC didn't immediately comment on the delay. “I call on the Commission to open a Notice of Inquiry to determine the new constitutional contours of Commission enforcement authority,” Simington wrote. “The statutory structure governing the FCC’s forfeiture power is quite different from that of the SEC,” the FCC said in a footnote in the order, arguing that the agency’s enforcement actions don’t violate the Seventh Amendment right to a jury trial as SCOTUS ruled the SEC’s do.
The Congressional Research Service predicts the U.S. Supreme Court’s June Loper Bright Enterprises v. Raimondo ruling (see 2406280043) and “uncertainty about the scope of the FCC’s authority and ability to adopt regulations in the public interest” could prompt congressional legislation "to clarify the agency’s statutory authority.” Conversely, lawmakers could also maintain “the status quo and let ambiguities regarding the FCC’s rulemaking authority be resolved by the courts,” CRS said in a Wednesday report. “There are also questions on whether the FCC may alter its rulemaking efforts in response to Loper Bright, as well as how such alterations might affect interest in legislation.” The FCC’s July FCC order that lets schools and libraries obtain E-rate support for off-premises Wi-Fi hot spots and wireless internet services (see 2407180024), April net neutrality rules and a 2023 digital discrimination order “illustrate the types of rules that might be challenged as exceeding FCC authority under Loper Bright or the major questions doctrine,” researchers said. Maurine and Matthew Molak petitioned the 5th U.S. Circuit Court of Appeals last week to review the E-rate Wi-Fi order (see 2408300027). The Molaks, whose 16-year-old son died by suicide after he was cyberbullied, say that ruling would give children and teenagers unsupervised social media access. Numerous FCC rules even before Loper Bright "were being contested by affected parties, including” the 5G Fund and next-generation 911 transition, “in both of which the FCC cites its public interest mandate,” CRS said. Researchers also noted the FCC’s 2022 notice of inquiry about ways to aid nascent in-space servicing, assembly and manufacturing companies (see 2208050023) “has come under scrutiny from interested parties.”
The FCC should reverse course on its proposed $150,000 penalty against Mission Broadcasting (see 2401120069) in light of recent U.S. Supreme Court decisions on agency enforcement and Chevron deference, Mission said in a supplemental filing posted Tuesday in docket 22-443. The proposed penalty is from a January notice of apparent liability over accusations from Comcast that Mission violated the FCC’s rules on good faith retransmission consent negotiation by allowing Nexstar -- which operates all of Mission’s stations – to negotiate on Mission’s behalf for WPIX New York. “Just as courts should no longer defer to agency interpretations of statutes, neither should they defer to agency interpretations of regulation” after SCOTUS’ Loper Bright v. Raimondo decision, Mission said. The FCC’s NAL is based on “irrational interpretations” of FCC rules and precedent and the agency hasn’t shown that Mission’s violations were willful and continuous, Mission said. “Common sense demands that the presentation of a contract proposal is a ‘discrete act,’ not a continuing violation, and the NAL’s contrary reading of the statutory term is inconsistent with FCC and judicial precedent,” Mission said. Under the high court’s SEC v. Jarkesy ruling, the FCC’s proposed forfeiture would violate the Seventh Amendment right to a jury trial, Mission said. Jarkesy “confirms that the FCC’s enforcement regime suffers from constitutional deficiencies,” Mission said. Attorneys have widely predicted that the Loper Bright and Jarkesy decisions will be raised in nearly every FCC enforcement proceeding going forward (see 2407250030). Mission and Nexstar are also facing a second, $1.8 million NAL connected with Mission’s operation of WPIX (see 2403220067).
The ultimate makeup of the 6th U.S. Circuit Court of Appeals panel that hears the review of the FCC’s net neutrality order may not make much difference, some legal experts told us, in the wake of recent U.S. Supreme Court decisions. They doubted that the panel (docket 24-7000) will delve deeply into case law, instead simply deciding that going forward it's Congress, not the FCC, that must address any case that raises "major questions." Oral argument is scheduled for Oct. 31.
The FCC’s order on broadcasters' collection of workforce diversity data exceeds the agency’s authority, violates the First and Fifth Amendments, and runs afoul of the U.S. Supreme Court’s recent ruling ending judicial deference to regulatory agencies, said a brief from the National Religious Broadcasters, the American Family Association and the Texas Association of Broadcasters. The groups filed the brief Wednesday in the 5th U.S. Circuit Court of Appeals. The order’s requirement that broadcasters make their workforce diversity data available online is intended “to pressure broadcasters to engage in race- or sex-based hiring practices,” it said, concluding that the order “is fatally flawed in multiple respects and should be vacated.” The FCC didn’t comment.
Low-power television broadcasters and NAB don’t think the FCC should broadly apply online public file requirements to LPTV, said a host of reply comments filed in docket 24-147 by Monday’s deadline. LPTV commenters also called for looser relocation limits and power increase options. In addition, LPTV company Venture Technologies argued that the U.S. Supreme Court’s ruling against Chevron deference means the FCC must allow more stations to convert to Class A status. “We believe that the FCC’s failure to allow virtually any new Class A stations for more than two decades is inconsistent with the principles established by the recent Supreme Court decision in Loper Bright Enterprises et al. v. Raimondo,” Venture said.
ASPEN -- The president should have broad discretion without interference from Congress to remove commissioners at independent agencies when they commit offenses the White House deems "fireable," FTC Commissioner Andrew Ferguson said Tuesday.
House Commerce Committee Chair Cathy McMorris Rodgers of Washington, Senate Commerce Committee ranking member Ted Cruz of Texas and six other top GOP lawmakers urged the 6th U.S. Circuit Court of Appeals Monday to strike down the FCC’s April net neutrality rules and reclassification of broadband as a Communications Act Title II service (see 2408140043). FCC Chairwoman Jessica Rosenworcel separately told Rodgers, Cruz and other Republican lawmakers she remains “confident that the Commission’s rules and decisions will withstand judicial review under the [U.S.] Supreme Court’s decision in Loper Bright Enterprises v. Raimondo and other applicable precedent.”
As industry looks beyond the Biden administration (see 2408130062), the FCC could have some busy months ahead of it. A pair of commissioner meetings is scheduled before the November elections, with at least two more before the inauguration of the next president. While past commissions have focused on less controversial items ahead of a presidential contest, which likely won’t be the case this year, industry officials say. Vice President Kamala Harris has emerged as the slight front-runner for the presidency since President Joe Biden left the race based on most recent polls, although the election is expected to be tight.
Don’t expect major daylight between a Kamala Harris administration and the Joe Biden White House on major communications policy issues, industry and policy experts predicted. Much focus and effort would center on defending the FCC's net neutrality and digital discrimination orders in the current federal circuit court challenges, as well as pursuing net neutrality rules, they said. Less clear would be the nature of the relationship between Harris' White House and Big Tech. The Harris campaign didn't comment. Deregulation and undoing net neutrality are considered high on the to-do list for the administration of Republican presidential nominee Donald Trump if he's elected (see 2407110034).