*Note: This is the second in a planned series of posts compiling Washington Legal Foundation papers, briefs, regulatory comments, and blog commentaries relevant to critical legal and constitutional issues facing new senior leaders at specific federal regulatory agencies. To see the first post in the series, discussing DOL, OSHA, EEOC, and NLRB, click here.
Rapid technological change has altered the way people communicate and consume information. For the past eight years, the Federal Communications Commission (FCC) has been scrambling to adapt to this new reality while expanding its regulatory turf. In the process, FCC has cut corners and imposed new regulations that chill innovation and investment.
Through its public-interest litigation, publishing, and other advocacy, WLF influenced debates over FCC’s policies and actions with timely papers and blog commentaries, and weighed in directly through regulatory comments and amicus briefs. Those activities have resulted in an impressive body of reference materials that are instructive for new leadership in the agency. We provide a summary of and links to those documents below to simplify access to relevant work product from WLF in each of those areas.
In February 2015, FCC issued an order to block state laws in North Carolina and Tennessee that prevented municipal broadband providers from expanding service outside of their territories. FCC, in instituting this order, argued that § 706 of the Telecommunications Act of 1996 authorized the Commission’s action.
The US Court of Appeals for the Sixth Circuit overturned FCC’s order in August 2016, stating that § 706 did not authorize the Commission to preempt state laws governing municipal broadband. WLF and former FCC Commissioner Harold Furchtgott-Roth submitted an amicus brief supporting the states in Tennessee v. FCC; North Carolina v. FCC. The brief argued because FCC’s preemptive action would so fundamentally upend federalism principles, the Commission could only act if § 706 included a clear statement authorizing preemption. Because § 706 lacks such clear language, the brief argued, FCC must withdraw its order. FCC did not appeal this decision.
For more in-depth analysis of this issue and the Sixth Circuit decision, consider the following publications, media briefing program, and blog posts:
- Sixth Circuit Protects Federalism from an Overreaching Federal Communications Commission
- Taking the FCC to Court: An Adventurous Agency Faces Increasing Judicial Oversight
- Telecom Regulation Experts Question FCC’s Conformity to Law, Constitution at WLF Briefing
- Conversations With: Federal Preemption vs. State Authority over Municipal Broadband (an interview with FCC Commissioner Ajit Pai)
Another example of FCC’s overreach occurred in February 2015 with adoption of the Open Internet Order, a rule meant to enforce “net neutrality.” The order imposed burdensome regulations and prohibited all broadband provider efforts to control or prioritize traffic over their networks, even if the practices would expand end users’ access to internet content or serve another legitimate purpose in meeting consumer demand.
WLF and former FCC Commissioner Harold Furchtgott-Roth submitted an amicus brief in support of a challenge to the Open Internet Order, United States Telecom Association v. FCC, filed in the DC Circuit. Our brief argued that nothing in § 706 of the Telecommunications Act grants the Commission sweeping authority to regulate the internet. Furthermore, the brief argued that the order violates broadband providers’ First Amendment rights because it denies editorial discretion and compels providers to convey all internet content—even that with which they may disagree. Regrettably, in June 2016 the DC Circuit upheld the order.
The court’s decision could have far-reaching ramifications. In a February 2017 WLF Working Paper, Hudson Institute scholar Arielle Roth argues that this decision could lead to an expansion of FCC’s authority under § 706 into new areas such as (1) neutrality beyond broadband providers; (2) privacy policies of edge providers; and (3) broadband service, notwithstanding the Open Internet Order.
Just a few months prior to Ajit Pai’s recent elevation to the position of FCC Chairman, on November 2, the agency issued new privacy rules. These privacy rules require fixed and mobile internet service providers (ISPs) to obtain opt-in consent from consumers before sharing web browsing data and other private information with advertisers and other third parties. FCC in its Notice of Proposed Rulemaking stated that the purpose of these regulations is to bring “clarity, choice, and security” to the broadband industry.
WLF submitted comments to FCC arguing that the proposed rule ran afoul of the First Amendment by singling out the use of consumer data in advertising. WLF also argued that the Telecommunications Act of 1996 does not explicitly grant FCC statutory authority to implement the rule. In addition, we published a blog post explaining the rule’s legal infirmities, Proposed FCC Privacy Rule Takes Unauthorized Aim at ISPs and the First Amendment.
In her Working Paper mentioned above, Ms. Roth discusses the ways in which these privacy rules disadvantage ISPs, while allowing edge providers to continue sharing consumers’ private information unburdened by these opt-in requirements. Roth explains that correcting this asymmetry by subjecting edge providers to these same privacy rules would ultimately do more harm to both consumers and the web industry as a whole.
Former FCC Chairman Tom Wheeler instituted a policy that limited public involvement in the rulemaking process and reduced agency transparency. Under this policy, the FCC Chairman would initiate the rulemaking process by releasing a document akin to a “notice of inquiry,” rather than the traditional Notice of Proposed Rulemaking asking general questions. After comments, FCC would then release “fact sheets” that briefly explained the rule being proposed to other Commissioners. Two noted communications attorneys elaborated on the implications of this opaque rulemaking approach in a WLF Legal Opinion Letter, FCC’s Use of “Fact Sheets” Short-Circuits the Administrative Procedure Act.
An October 16, 2016 WLF Media Briefing, which featured a co-author of that publication, as well as then-Commissioner Pai and former Commissioner Furchtgott-Roth, Taking the FCC to Court: An Adventurous Agency Faces Increasing Judicial Oversight, assessed, among other issues, the past Chairman’s use of fact sheets. A WLF Legal Pulse post, Telecom Regulation Experts Question FCC’s Conformity to Law, Constitution at WLF Briefing, documents the program’s discussion.
Chairman Pai has announced reforms to make FCC more transparent and accountable. One such reform involves a pilot program to keep the public updated on what the Commission will be considering at its monthly meetings. Another reform would make FCC proposals available to the public weeks before they are voted on by the Commissioners. WLF invites all of the new leadership at FCC to read (or re-read) WLF’s work in this area as the agency considers additional reform possibilities.