The FCC’s administrative hearing process increasingly results in huge discovery requests that can be expensive for entities with matters before the agency’s administrative law judge and faces an uncertain future due to a host of recent administrative law cases, panelists said during a Federal Communications Bar Association virtual event Tuesday. Discovery is the most time-consuming part of the process, said FCC ALJ Jane Halprin. In addition, the expense of pursuing a lengthy case before the ALJ is sometimes more than many licensees can stomach, said Smithwick and Belendiuk attorney Arthur Belendiuk during a separate panel. “Even if you win, you might lose,” he said.
Major Questions Doctrine
The major questions doctrine "is not applicable" to reclassifying broadband as a Communications Act Title II service, Public Knowledge told FCC Wireline Bureau, Public Safety and Homeland Security Bureau, and Office of General Counsel staff. The group said in an ex parte filing posted Tuesday in docket 23-320 that the commission "would need to claim a new power or reverse a long-standing interpretation of a statute" for the doctrine to be considered. The FCC "does not need evidence of new harms to justify its reversal" to "the status quo ante," the group said, adding the commission "only needs to assert that the 2018 reversal does not comport with the FCC’s mandate to ensure universal service and promote public safety." Public Knowledge also asked the FCC not to forbear providers from Section 254(d) rules governing USF contributions, noting any contribution requirements would require the commission to first establish a specific mechanism (see 2403080055).
Industry widely opposes the FCC's proposal to adopt additional reporting requirements for providers as part of the commission's efforts to combat digital discrimination. Commissioners sought comment on an NPRM proposing to adopt annual reporting and internal compliance program requirements following a November order adopting rules to curb discrimination (see 2401310052). Comments were posted Tuesday in docket 22-69. Consumer advocates and state officials urged the FCC to adopt the proposed requirements and establish an Office of Civil Rights within the commission.
Following last week’s oral argument in two Chevron cases before the U.S. Supreme Court (see 2401170074), the future of the doctrine appears in doubt.
Industry opposition to an FCC proposal reclassifying broadband as a Title II service under the Communications Act continued in reply comments posted through Thursday in docket 23-320 (see 2312150020). Most groups warned reclassification would stifle competition. Some consumer groups disagreed, urging the FCC to reinstate its net neutrality rules without preempting state and local governments.
The U.S. Supreme Court’s conservative majority appeared receptive to industry arguments that the court should overturn, or at least narrow, the Chevron doctrine, which gives agencies like the FCC and FTC deference in interpreting laws that Congress passes. The court heard oral argument Wednesday for more than 3.5 hours in two cases challenging Chevron deference, Loper Bright Enterprises v. Raimondo and Relentless v. Commerce. Both concern fishing regulations and don’t touch directly on communications regulation.
As the FCC sees increased dissent votes by Republican minority commissioners, those dissents frequently challenge agency authority. That's becoming a more common line of argument among GOP commissioners across federal regulatory agencies, often based on the U.S. Supreme Court's major questions doctrine, administrative law experts tell us. Republican commissioners and former commissioners say dissent votes are a reflection of the Democratic majority pushing partisan issues. Commissioner Nathan Simington in a statement said he is "disappointed that the Commission is now focused on misguided, partisan items, but I remain hopeful that we can continue making progress on real, non-partisan solutions to long-standing technical issues."
Industry and consumer groups clashed on whether the FCC should reclassify broadband internet access as a Title II service under the Communications Act in comments posted through Friday in docket 23-320 (see 2310190020). Commenters against reclassification warned that it would stifle innovation and competition. Supporters said the proposal would ensure consumers have equal access to broadband ahead of anticipated federal broadband deployment programs.
The U.S. Supreme Court might opt to avoid likely fights over the FCC's digital discrimination rules or proposed Title II net neutrality rules, Andrew Schwartzman, Benton Institute for Broadband & Society's senior counselor, told Communications Daily this month. In an extensive sit-down interview, Schwartzman spoke about his long career as a public interest advocate within telecommunications, evolution of that domain, and how the FCC's net neutrality regulatory push is not merely a repeat of the past. The following transcript of our conversation was edited for length and clarity.
FCC Commissioner Brendan Carr said during a Federalist Society panel discussion Friday that the Supreme Court’s growing focus on the major questions doctrine and the expected death of the Chevron doctrine (see 2306290063) has potential benefits in forcing lawmakers to make hard policy decisions.