Rodgers Warns FCC, FTC Against Exceeding Statutory Authority Ahead of Midterms

House Commerce Committee ranking member Cathy McMorris Rodgers, R-Wash., warned the FCC and FTC not to "continue to exceed Congressional authorizations" given the "limitations" on their authority highlighted in the Supreme Court's June West Virginia v. EPA ruling. The high court further clamped down on the ability of agencies like the FCC to regulate without clear direction from Congress (see 2206300066). The committee "will exercise our robust investigative and legislative powers" to ensure federal agencies don't overreach, Rodgers told FCC Chairwoman Jessica Rosenworcel and FTC Chair Lina Khan in Sept. 23 letters released Wednesday. Rodgers appears to be putting federal agencies on notice ahead of the GOP's potential regain of House control in the Nov. 8 midterm election.

"In recent years the FCC has taken it upon itself to misinterpret its authority to initiate rulemakings with 'economic and political significance' that fit the Chair’s political leanings," Rodgers wrote Rosenworcel. She cited the FCC's now-rescinded 2015 net neutrality order (see 1502260043). Rodgers asked the FCC and FTC to give her information on all "pending" and "expected" rulemakings and specific statutory authorities allowing those proceedings. She also asked the FCC to outline “all ending or expected” declaratory rulings issued via delegated authority.

The FCC is "reviewing the letter and making an effort to respond right now," Rosenworcel said during a Thursday news conference.

FCC Commissioner Brendan Carr said Thursday he's "very encouraged" by the Supreme Court's embrace of the "major questions” doctrine for evaluating agency actions. "It is about making sure that agencies make decisions based on express delegations they were given by Congress," he told reporters. "When it comes to the net neutrality debate, whenever" that comes back before the FCC "we will see how it plays out. The digital world of 2022 is very different" from the one in 2015, so "you cannot simply offer up the same solution set" now "that we did in 2015." Carr thinks “you could very easily get to a bipartisan consensus” on “bright line rules” if advocates “put aside their aspirations for rate regulation” and reclassifying broadband as a Communications Act Title II service.

The FTC’s ongoing “misinterpretation” of its authorizing statute “raises questions over how you are currently using other authorities, especially in order to obtain penalties from companies throughout” the U.S., Rodgers wrote Khan. She cited the Supreme Court’s 2021 ruling in FTC v. AMG Capital Management, which struck down the commission’s FTC Act Section 13(b) authority (see 2104270086). “For years, the FTC had used Section 13(b) … to seek monetary damages, including restitution and disgorgement for complaints related to unfair or deceptive acts or practices,” Rodgers said: Even after the high court’s “unanimous ruling, the Commission persists in their interpretation of the authorization to permit them to seek monetary relief of any ill-gotten gains in addition to the clearly delineated permanent injunction clause, by asking Congress to ‘restore’ their authority.”

An FTC spokesperson confirmed the agency received Rodgers’ letter but declined further comment. Rodgers wants the FTC to detail “all Congressional authorities that allow” the agency “to seek monetary damages,” current agency vacancies and how many employees work within the Economics Bureau and fraud program.