By Arielle Roth, The Hudson Institute*
It came as no surprise last week when the US Court of Appeals for the DC Circuit denied the request for en banc rehearing in US Telecom v. FCC, better known as the “net neutrality” case. As a technical matter, the panel decision upheld the Federal Communication Commission’s 2015 Title II order, which reclassified broadband Internet as a “telecommunications service” and in turn subjected broadband providers to common carriage regulation. Such a grant would have been rare in any event. Further, in the view of Judge Sri Srinivasan’s opinion concurring in the denial of rehearing, the issues were unfit for judicial review in light of the announcement by current FCC Chairman Ajit Pai of a rulemaking to reverse the previous FCC’s order.
On the contrary, it is precisely because the current FCC seeks to undo the rules in question that the DC Circuit ought to have granted en banc rehearing. Continue reading
President Trump signed a Congressional Review Act (CRA) resolution on April 3, 2017 that nullified the Federal Communication Commission’s (FCC) privacy rule aimed at Internet Service Providers (ISPs). As discussed in the WLF Legal Pulse’s reading list for FCC regulators last month, the Commission adopted the rule just before the 2016 election over the opposition of two Commissioners (including one who has since become FCC Chairman). WLF filed comments last May opposing the proposed rule. Many media commentators and self-styled consumer advocates proclaimed that the proverbial sky was falling due to the nullification. Such ideologically-fueled Chicken-Little rhetoric, however, does not reflect reality.
Post-nullification analyses bemoaned ISPs’ collection of consumers’ “personal information” and the ability of these companies to sell such information to expand their businesses. Nay-sayers’ complaints essentially boiled down to the bromide offered in the Washington Post: the CRA resolution “wipe[d] away landmark privacy protections for Internet users.” Continue reading
*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. Continue reading
Susan E. Dudley is Director of the George Washington University Regulatory Studies Center, which she founded in 2009, and a distinguished professor of practice in the Trachtenberg School of Public Policy and Public Administration. From 2007 to 2009, she served as the Administrator of the Office of Information and Regulatory Affairs (OIRA) in the U.S. Office of Management and Budget.
WLF Legal Pulse: As promised, Congress and the Administration have quickly gotten to work reconsidering and removing a host of federal regulations while also setting the stage for a much different approach to regulation. Let’s first talk about what Congress is doing.
Professor Dudley: Under the Congressional Review Act of 1996 (CRA), Congress has 60 legislative days after a regulation is published to vote to disapprove it. The procedures for disapproval are streamlined (including requiring a simple majority in the Senate) and if a rule is disapproved, the agency cannot issue something substantially similar. Continue reading
By Grace Galvin, Washington Legal Foundation*
Technology is constantly changing, and the Federal Communications Commission (FCC), like everyone else, feels the need to keep up with the times. The agency’s recent efforts to maintain its role as the core regulator of the communications sector, however, has gotten it into a bit of trouble.
Washington Legal Foundation brought a panel of experts together on October 20, 2016, including FCC Commissioner Ajit Pai, former FCC Commissioner Harold Furchtgott-Roth, and administrative law attorney Brett Shumate of the Wiley Rein LLP, to discuss FCC’s increasing tendency to overreach the limits placed on it by the federal Telecommunication Act and the US Constitution.
Commissioner Pai looked back on recent years and said FCC has gotten into trouble with the courts “by forging ahead with what it considered to be good policy, regardless of legal consequences.” Federal circuit courts outside of D.C. have been quick to admonish the FCC for overstepping its statutory and constitutional boundaries. Continue reading