Carr, Former FCC Chairs Talk Chevron, USF, Bipartisanship

The U.S. Supreme Court’s recent decisions in Loper Bright Enterprises v. Raimondo, which overruled the Chevron doctrine (see 2406280043), and in SEC v. Jarkesy (see 2406270063) were “a good thing,” FCC Commissioner Brendan Carr said Wednesday during a Multicultural Media, Telecom and Internet Council webinar. Other former FCC officials disagreed sharply with the rulings that appear to expand judges' power while reining in regulatory agencies like the FCC.

The recent SCOTUS decisions put individuals and businesses “on a much more level playing field” with regulatory agencies when issues go to court for review, Carr said. Power should remain “in Congress,” he said, though some argue Congress is too “dysfunctional” to provide direction on technical issues. “I’m sympathetic to some of those views” but “a lot of the inability to get laws passed in Congress is a feature, not a bug, of our system.”

Carr called Jarkesy “sort of a nerdy case” dealing with enforcement. People understand “instinctively” that one agency shouldn’t be “the judge, the jury and the executioner” as well as “the lawmaker,” he said. “Jarkesy really underscores that.”

Deference allowed Congress to “punt on some core, tough issues” and hope for “complete victory through administrative regulations” when their side wins the White House, Carr said. Loper means Congress must make tough decisions, he said.

In a separate panel discussion, former FCC Chairman Reed Hundt and former acting Chairs Mignon Clyburn and Michael Copps said they think Loper Bright will severely limit the FCC. Increased litigation will result in “an extreme slowdown” in crafting rules, Clyburn said. Said Copps, the ruling is “a catastrophic reversal for modern government, taking it back to horse and buggy days.” For Hundt, “Congress is incapable of writing legislation for every contingency.” He added that if the Loper Bright decision was in effect when his FCC was implementing the 1996 Communications Act, we wouldn’t have been able to do it. Loper Bright means future FCC chairs must “load up” on lawyers and spend time lobbying Congress for laws without ambiguities, Hundt said. If Carr becomes chairman, the decision will be “an invitation to tremendous delays in anything he wants to do,” Hundt said. Considered the most likely chair if former President Donald Trump returns to the White House (see 2407120002), Carr noted he has been invited to speak at a growing number of events over the past month.

However, former FCC Chairman Ajit Pai doesn’t think Loper Bright will be “a significant negative” for the agency. It “may cause some short-term disruption, but in the long run, it's far more faithful to the separation of powers and to the principle of democratic accountability than what we had before,” Pai said. Congress was extremely responsive when, as chairman, he asked for specific legislation. “Gridlock is built into the constitutional framework,” Pai said. “But that's not an excuse for Congress not to do the job.”

Clyburn and Copps said the reversal of Chevron would hamper the FCC’s ability to help minorities. “It's just difficult to see how a long struggle for civil rights, equal rights in media and telecom is going to be advanced by this,” Copps said. Pai, though, said he doubts that Loper Bright would result in hurting minority communities. Congress has given the agency broad power to act against companies that engage in unfair competition or deceptive practices, Pai said. By forcing Congress to act more, the decision will lead lawmakers to “correct some of these societal ills that we see.”

The SCOTUS ruling on presidential immunity could also have consequences for the FCC and all independent agencies, Hundt said. The ruling means “that if the president wants to call up the chair and tell the chair what to do, there's nothing wrong with that anymore,” Hundt said. Presidents could order future chairs to approve or disapprove mergers, or selectively enforce rules, he said. “And the president is immune from any challenge on that topic, any challenge of any kind at all.” An independent FCC “is, perhaps, a dead letter.”

Carr said he has enjoyed working with Chairwoman Jessica Rosenworcel. “We’ve worked really well together on a broad set of bipartisan issues.” The FCC has followed up on national security issues in particular that started under Pai, he said.

The former FCC chairs said it was important for future FCC commissioners to work in a bipartisan manner. Copps said the agency should consider his idea of dropping rules that bar commissioners from meeting privately. That would let commissioners discuss items before a vote and improve relationships, he said. Said Hundt, the 2025 FCC should “take a stand” and “express support for the basic values that make our society a success; values of free speech and tolerance and respect for each other.” Pai said the FCC has always functioned internally in a bipartisan way but that the external partisan divide in the U.S. could make things difficult at the agency. “I think it's fair to say that I was the recipient of probably more vitriol, much of it racist and violent in nature, than any commissioner in history, and it was unpleasant to say the least.” He faced bomb threats as chairman. In 2019, a California man was sentenced to 20 months in prison for threatening to kill Pai’s family (see 1905170051).

Carr said the FCC should do more to address spectrum and infrastructure issues. The administration is spending a lot of money on broadband build out, while not making deployment easier, he said: “We’re basically stepping on the gas and the brakes at the same time.” Carr said he supports the broadband equity, access and deployment (BEAD) program, but it hasn’t led yet to deployments. BEAD needs "a course correction.”

The FCC has the authority to act on some spectrum issues but has failed to do so, Carr noted. “Yes, we don’t have spectrum auction authority right now -- that’s a problem -- but we do actually have authority to take some spectrum actions,” including on unlicensed spectrum, he said. “When we free up spectrum the world takes notice.”

The FCC should have been more aggressive in the past about leading on cybersecurity issues, Copps said. Noted Clyburn, the agency “cannot afford to not be part of the conversation” on cybersecurity. Hundt said that privacy and cybersecurity are “intimately related” to misinformation and disinformation. “If the FCC wants to matter, then in 2025 Republicans and Democrats ought to decide they're going to tackle these issues,” Hundt said. “It can't really be that anyone wants an authoritarian nation-state to be manipulating our perception of reality.”

For Pai, the Universal Service Fund “presents some pretty big difficulties,” including that the “needs of the people evolve over time” and the various funds need to “reflect that.” There’s also the long-standing problem of the declining contribution base, he said. The FCC could expand the base to take in tech companies, as Carr has advocated (see 2303070048), but that may require congressional action, he said. Pai is hopeful that “at the end of the day” Republicans and Democrats “will figure this out.”

Congress, Copps said, approved the USF to supply every American with “the most advanced telecommunications possible,” which formerly was the phone service. The same goal should exist now that most people communicate over broadband, he said. Copps said Pai may be right that expanding the USF base will require legislation, but “I don’t personally see why,” since the goals of Congress remain the same.

With the loss of the affordable connectivity program, millions of people are finding themselves in a place where they can’t afford to eat and stay connected as well, Clyburn said. Said Copps, “If people are really losing service, and apparently they are … then we are in total reverse of where we should be.”

The potential of the BEAD program hasn’t translated to reality, Pai said. “This is the best opportunity we are ever going to have to really close the digital divide once and for all,” but the program has been hampered by practical difficulties. “Time is not on the side of consumers who are off the grid,” Pai said. “Broadband is not a nice to have anymore. It's a must-have.” Pai and Copps said that credit requirements shouldn’t be excessive or risk discouraging smaller entities from participating in the program.

The transition to ATSC 3.0 “unfortunately hasn't gone as quickly or smoothly as I would like,” said Pai, who headed the FCC when the standard was authorized. He said the FCC should set a hard date for a nationwide transition to 3.0, similar to the digital TV transition, “because otherwise you're going to keep having this muddling along, piecemeal effort that doesn't really go anywhere.” The idea that consumers shouldn’t pay for ATSC 3.0-enabled devices in a transition is “absurd,” Pai said. “The FCC needs to have a more realistic approach to that than simply saying everything has to be costless.”