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.
Major Questions Doctrine
ISPs told the 6th U.S. Circuit Court of Appeals that the U.S. Supreme Court’s recent decision in two cases overturning the Chevron doctrine means the FCC’s net neutrality order must be stayed pending judicial review (see 2407010036). The FCC said Loper Bright Enterprises v. Raimondo and the other case had no implications for its order, which reclassified broadband as a Title II service under the Communications Act.
The Infrastructure Investment and Jobs Act (IIJA) explicitly requires that the FCC "regulate to achieve equal access to broadband" and "authorizes [the] FCC's disparate-impact rules," a consumer advocacy groups said in a joint filing Friday at the 8th U.S. Circuit Appeals Court (see 2401300089). In addition, the groups argued that the major questions doctrine didn't apply in this case.
Industry lawyers continue to assess the potentially seismic implications of Loper Bright Enterprises v. Raimondo and the other Chevron case decided last week (see 2406280043). Yet the after-effects are being seen already. The 6th U.S. Circuit Court of Appeals on Friday directed parties in the net neutrality challenge to file not later than July 8 supplemental briefing material addressing the effect of the Chevron decision “on our analysis” of a motion to stay the order (see 2406280060).
The U.S. Supreme Court’s conservative majority surprised no one Friday, issuing a decision decided on ideological lines that overrules the Chevron doctrine. Chevron gave agencies like the FCC and FTC deference in interpreting laws that Congress approved. On the penultimate day of its term, the court released a decision that wraps together Loper Bright Enterprises v. Raimondo and Relentless v. Commerce. Both cases concern fishing regulations but were used as a vehicle for overturning Chevron.
State lawmakers may be more inclined to pursue broadband affordability policies in the wake of recent FCC and court rulings as well as last month's ending of the federal affordable connectivity program (ACP), multiple telecom experts said last week. Connecticut Senate Majority Leader Bob Duff (D) told Communications Daily he hopes “these developments will lead to stronger support in 2025” for an affordable broadband proposal that failed this year. However, some anticipate ISPs will likely object, and fiscal constraints could limit states' efforts.
CTIA, the Ohio Telecom Association, USTelecom, NCTA, the Wireless ISP Association and other ISP groups asked the 6th U.S. Circuit Appeals Court to stay the FCC’s net neutrality order (see 2406100044). The FCC wants to move the case to the D.C. Circuit and has declined to stay the order, which takes effect July 22. The agency “has asserted total authority over how Americans access the Internet,” according to a joint motion filed Monday (docket 24-3450). “That is not hyperbole,” the groups said. The order “is only the latest jolt in a decade of regulatory whiplash for ISPs,” the associations said. After nearly 20 years of a light-touch approach to regulating the internet, in 2015 the FCC asserted for the first time authority over high-speed internet access service under Title II of the Communications Act, the filing said: Before the U.S. Supreme Court “could weigh in, a new Administration reverted to the traditional light-touch approach. Now, after another change in Administration, the Commission is back to a heavy hand, promising to make even more aggressive use of its claimed powers.” The court should stay “the latest flip-flop pending judicial review” since “petitioners are overwhelmingly likely to succeed on the merits,” the ISPs said. They argue that the order should be rejected under the Supreme Court’s evolving major questions doctrine. “Because the Commission cannot point to clear congressional authorization for applying common-carrier regulation to the Internet, the Order is unlawful,” they said.
The FCC urged the 6th U.S. Circuit Appeals Court Friday to move the challenge to the FCC’s net neutrality order to the D.C. Circuit (docket 24-3450). The FCC also issued an order declining to stay the rules, which take effect July 22, pending judicial review.
Selection of the 6th U.S. Circuit Appeals Court to hear industry challenges to the net neutrality order may bode well for industry. Still, many questions remain, including which judges will hear the case and whether arguments are ultimately held in the Ohio-based court, industry experts said Friday.
A coalition of industry groups on Friday challenged the FCC's net neutrality order and declaratory ruling reclassifying broadband as a Communications Act Title II telecom service (see 2405310074). The coalition asked the FCC to stay the effective date of its order and declaratory ruling pending judicial review. Coalition members included USTelecom, NCTA, CTIA, ACA Connects and several state broadband associations.