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).
FCC commissioners approved 3-2 a draft order and Further NPRM at their Thursday open meeting that lets schools and libraries use E-rate support for off-premises Wi-Fi hot spots and wireless internet services. The FCC Republicans issued dissents as expected (see 2407170035). In a lengthy dissent, Commissioner Brendan Carr questioned whether the order would survive a legal challenge.
Congressional GOP leaders demanded Thursday that the FCC and other independent agencies adhere strictly to its narrowed leeway of interpreting federal laws following the U.S. Supreme Court’s June Loper Bright Enterprises v. Raimondo decision and other recent rulings that rein in federal agencies (see 2407080039). House Commerce Committee Chair Cathy McMorris Rodgers of Washington and Oversight Committee Chairman James Comer of Kentucky pressed the FCC, FTC and Commerce Department to understand the “limitations” Loper “set on your authority” given it overruled the Chevron doctrine. Meanwhile, FCC Commissioner Brendan Carr pooh-poohed critics of Loper who argue it hamstrings regulatory agencies. Communications-focused lawyers at an Incompas event eyed a range of legal challenges to recent FCC actions that could face improved prospects because of Loper.
The FCC should shift to a fair-notice enforcement policy or risk having the courts reverse enforcement actions in the wake of the U.S. Supreme Court’s SEC v. Jarkesy (see 2406270063) and Loper Bright Enterprises v. Raimondo (see 2406280043) decisions, former FCC General Counsel and Harris Wiltshire partner Chris Wright wrote in a post on the firm's website Wednesday. Recent FCC enforcement actions –such as an April forfeiture order against major wireless carriers over personal data (see 2404290044) -- have evaded statutory limits on fines by treating single incidents as multiple acts of rule-breaking and penalized companies for actions that weren’t explicitly prohibited under the agency’s rules, Wright wrote. “Now that Chevron has been overruled," Wright anticipates "courts will review interpretations such as that without deference.” As such, “Courts will determine what the best reading of the statute is, and the Commission’s creative interpretations of the statute to generate higher penalty amounts will flunk that test.” To avoid that, FCC should propose forfeitures only when a company has violated a clear FCC rule and limit forfeiture amounts to conform to statutory requirements, Wright argued. This would also ensure the agency “has a sound basis for any forfeiture orders that it ultimately has to defend before a jury,” as it might be required to do in the wake of the Jarkesy decision. Wright was FCC general counsel in 1999 when the Enforcement Bureau was created, and is “disappointed that the Commission’s enforcement efforts have gone so far off-track.” The FCC “should correct itself sooner rather than later to avoid protracted legal challenges and judicially crafted remedies."