Supreme Court Could Frustrate FCC’s Progressive Agenda

Nov 22, 2023

By Ted Hearn, Editor of Policyband

Washington, D.C., Nov. 22, 2023 – In January, the U.S. Supreme Court will hear a case that could have a massive impact on the power of Washington’s administrative agencies, including the Federal Communications Commission. A favorable outcome could help the cable industry survive its current battles with FCC Chair Jessica Rosenworcel.

For decades, courts have deferred to expert agencies like the FCC, refusing to micromanage its implementation of communications laws passed by Congress. Under this approach, administrative agencies have amassed considerable power to bend the meaning of laws in ways clearly unintended by Capitol Hill.

Some legal experts suspect the status quo is about to receive a serious makeover at the Supreme Court, with the judicial branch reclaiming its authority, in the words of legal giant John Marshall, “to say what the law is."

For the FCC, a newly energized judicial branch determined to regulate the regulators more closely could frustrate the agency’s efforts to carry out the Biden Administration’s progressive agenda in a number of areas within the communications sector.

The courts, for instance, could dilute or doom Rosenworcel’s regulatory treatment of broadband Internet Service Providers (ISPs) under intrusive Net Neutrality and Digital Discrimination rules. If she isn’t careful, her notions about eliminating cable and satellite TV “junk fees” could be set aside as unlawful.

And by underscoring the need to restrain the administrative state, the Supreme Court might also inspire Congress to put more teeth into a law like the Congressional Review Act of 1996 – which allows Congress to overturn final rules issued by federal agencies. The CRA has been used successfully just a handful of times, including the 2017 repeal of the Obama FCC’s broadband privacy and cybersecurity rules

The case coming before the Supreme Court on Jan. 17 is Loper Bright Enterprises v. Raimondo, and the underlying legal struggles it involves have been percolating for decades. Under a 1984 Supreme Court precedent called the Chevron Doctrine, federal courts are required to defer to a federal agency’s reading of an ambiguous statute provided the interpretation is a reasonable one.

So, when FCC lawyers stroll into court today to defend agency rules interpreting a vague statute, the agency has an almost insurmountable advantage under the Chevron Doctrine.

As some see it, Chevron deference is an affront to the Constitution and the separation of powers because it enables unelected officials to establish the meaning of a statute without serious pushback from the courts.

Let’s face it: On Capitol Hill today, the reality is that many bills become laws because they are ambiguous by design to appease the lobbying establishment, which is fully equipped and motivated to shift the battle to a familiar venue like the FCC, where relationships are deeply planted.

Opponents of the Chevron Doctrine want the Supreme Court to seize the moment and check the power of the administrative state once and for all. They want the Supreme Court to use Loper Bright to send this unambiguous message: "Congress paves the road and the FCC paints the lines. Not vice versa."