Orbital debris experts think the FCC's fining of Dish Network for improper disposal of one of its satellites (see 2310020049) shows the agency getting increasingly serious about orbital debris enforcement. Yet some doubt the fine and threat of more agency enforcement action will have more than a minor effect on how space operators operate. Several saw it a sign that the agency is planting its flag as the orbital debris regulator. Space operators will be much more diligent about tracking their fuel consumption and maybe not try to squeeze quite so much operational life out of their satellites, said Mark Sundahl, director-Global Space Law Center at Cleveland State University. He said it could lead to industry standards on fuel consumption. The commission didn't comment.
Major Questions Doctrine
Senate Commerce Committee ranking member Ted Cruz of Texas, Communications Subcommittee ranking member John Thune of South Dakota and 41 other chamber Republicans urged FCC Chairwoman Jessica Rosenworcel Thursday to “end this charade and shelve” her draft net neutrality NPRM aimed at largely reinstating the commission’s rescinded 2015 rules and reclassification of broadband as a Communications Act Title II service (see 2309280084). Republicans have given the proposal an almost uniformly negative reception since Rosenworcel first announced it last week (see 2309260047).
The FCC's abdicating its internet oversight authority in 2017 largely neutered the agency's ability to protect online privacy and to require ISPs to address lengthy outages, Chairwoman Jessica Rosenworcel said Tuesday as she announced the agency was moving to take that authority back. Reclassification of broadband as a service under Title II would end having to often jury-rig legal justifications for actions the agency is taking, she said, saying October's agenda will include a draft NPRM on reinstating the agency's 2015 net neutrality rules. The move met loud criticism, including from inside the FCC, as well as support.
Sen. Ed Markey, D-Mass., led a letter with Communications Subcommittee Chairman Ben Ray Lujan of New Mexico and 25 other Senate Democratic caucus members Monday urging the FCC to "expeditiously reclassify broadband as a telecommunications service under" Communications Act Title II to undergird a potential rewrite of net neutrality rules. Lawmakers in both parties are eyeing the FCC's regulatory trajectory on net neutrality and other matters as Commissioner-designate Anna Gomez takes office, which would bring the commission to a 3-2 Democratic majority (see 2309200001). A renewed push for Title II reclassification, a Democratic priority since the FCC undid its 2015 net neutrality rules, would allow the commission to "effectively protect consumers from harmful practices online, promote affordable access to the internet, enhance public safety, increase marketplace competition, and take other important steps to benefit our nation’s digital future," Markey and the other senators wrote Chairwoman Jessica Rosenworcel. The FCC's rescission of the 2015 Title II reclassification "threw out most of the Commission’s ability to enforce the consumer protection, competition, public safety, and universal service principles at the heart of the" Communications Act. "Repeated court rulings have made clear that reclassifying broadband as a telecommunications service is the only way the FCC can use its legal authority to reinstate net neutrality," the senators said: Reclassification "is a requisite step in the FCC’s efforts to serve the American people and conduct proper oversight of broadband." Title II opponents, including Commissioner Brendan Carr, have recently amplified their warnings that the Supreme Court's establishment of the major questions doctrine in its 2022 West Virginia v. EPA ruling (see 2206300066) would render reclassification unconstitutional absent congressional action.
October's FCC open meeting agenda will include a draft NPRM proposing what would largely be a return of the agency's 2015 net neutrality rules under Title II authority, commission officials told the media in a call Tuesday. The NPRM, to be released publicly Thursday, would forebear from rate regulation and network bundling requirements while also preserving the agency's national security authority to block authorizations of companies controlled by an adversarial foreign government, they said. Asked about what market failures necessitate a return of such rules, they said ISPs are already regulated but by a patchwork of state laws, government contracting policies and executive orders. They said what the FCC is putting forward instead would be a uniform national standard, and seeks comment on how to do that. Asked about how such regulation might fare under the current U.S. Supreme Court and its major questions doctrine, they said agency classification of broadband under the Communications Act goes back to the 1990s and has been upheld by federal courts on multiple occasions, so the Title II approach has strong legal grounding. Chairwoman Jessica Rosenworcel is scheduled to give an address this afternoon at 2:30 EDT elaborating on the NPRM.
The FCC voted Thursday to streamline satellite applications, provide spectrum for commercial space launches, limit robocaller access to phone numbers, and target a robocalling enterprise with a $116 million forfeiture. Commissioner-designate Anna Gomez didn’t attend the agency's open meeting, which is expected to be the last one with FCC’s current 2-2 makeup. FCC Chairwoman Jessica Rosenworcel declined to say what the agency’s path might be once she has a Democratic majority, “We had four members of the agency here today” and there will be “five in the not-too-distant future, so I would recommend you stay tuned,” Rosenworcel said during a news conference. The agency also approved an order updating the 5G Fund for Rural America (see 2309210035).
The 2024 presidential election shouldn’t, and likely won’t, deter FCC Democrats from moving forward on their policy agenda now that they're on the cusp of a 3-2 majority well over two years into President Joe Biden’s term, said lawmakers and former commission officials in interviews. Many expect a flurry of FCC activity once Democrat Anna Gomez, confirmed by the Senate earlier this month, formally signs on as a commissioner 2309070081). Multiple FCC-watchers and former officials pooh-poohed the conventional wisdom that the agency avoids major, controversial actions during election years.
DOJ and the FCC on Monday defended the commission’s order last year further clamping down on gear from Chinese companies, preventing the sale of yet-to-be authorized equipment in the U.S. (see 2211230065). Dahua USA and Hikvision USA challenged the order, which implements the 2021 Secure Equipment Act, questioning whether the FCC exceeded its legal authority (docket 23-1032). The case is in the U.S. Court of Appeals for the D.C. Circuit. Oral argument isn't scheduled.
The U.S. Supreme Court’s 6-3 decision last week in the student loan case, Biden v. Nebraska, didn’t touch on communications law, but it delves deeper into the "major questions doctrine" laid out a year ago in West Virginia v. EPA (see 2206300066). Legal experts told us the opinion, by Chief Justice John Roberts, appears to further expand when the doctrine may apply and moves the court further away from the Chevron doctrine. The case also has implications for the most controversial items addressed by the FCC, including net neutrality, experts said.
Lawyers at Venable said Thursday U.S. Supreme Court justices will likely find it irresistible to use an upcoming case, Loper Bright Enterprises v. Raimondo, to clarify the status of the Chevron doctrine (see 2305050038). The lawyers noted during a webcast that the brief seeking review of the case (docket 22-451) was written by Paul Clement, U.S. solicitor general under George W. Bush, and is salted with citations to decisions by many of the conservative justices inviting a review of Chevron.