As a general rule, decisions regarding telecommunications and the internet do not impact broadcasting. Nonetheless, the Court of Appeals for the 6th Circuit’s decision of reviewing and striking down the FCC’s net neutrality rules may set the stage for a review of broadcast regulations.
The issue is the scope of the FCC’s authority to pass regulations. The FCC, and any other federal agency, may only enact regulations if Congress has authorized the agency to do so. In many instances there is a “gray area,” where it is uncertain whether Congress has given the FCC authority. For years, the Courts have “deferred” to the FCC’s interpretation of the Communications Act regarding the Commission’s authority to create new regulations. This approach to deferring to agencies was known as the “Chevron” doctrine.
A recent Supreme Court decision, Loper Bright Enters. v. Raimondo, eliminated the “Chevron” doctrine. As a result, courts will no longer defer to an agency’s decision of whether it has the authority to enact regulations. Rather, the courts will now look to whether specific statutory language gives an agency the authority to enact certain regulations. This decision is more than a legal technicality. It marks a fundamental change in the law governing all federal agencies, including the FCC.
This new approach was at the core of the Court of Appeal’s recent decision striking down the FCC’s net neutrality rules.
“But Loper Bright ended Chevron’s mandated deference to an agency’s statutory interpretation upon a finding of ambiguity. In overruling Chevron, the Court found such a view of implicit delegation inconsistent with the Administrative Procedure Act’s command that courts “decide all relevant questions of law and interpret statutory provisions.” Loper Bright, 144 S. Ct. at 2255 (internal quotation marks and ellipsis omitted). Now, “[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority” by “us[ing] every tool at their disposal to determine the best reading of the statute and resolve the ambiguity.” Id. at 2266, 2273.”
Applying this new test, the 6th Circuit found that the language of the Communications Act did not give the FCC the authority to enact the net neutrality rules. Accordingly, the courts struck down the rules.
As related to broadcasting, this means that the FCC’s broadcast regulations must be linked to specific statutory language authorizing the FCC to adopt regulations. If the statutory language is ambiguous, then the regulations may be struck down.
It is worth noting that a number of broadcast related regulations were adopted by the FCC pursuant to a general “public interest” standard. This would include numerous regulations, such as local ownership regulations, EEO Form 395B, issue responsive content regulations, and many others.
This is not to say that FCC broadcast regulations will necessarily be struck down. This is especially true if such regulations have been litigated and upheld in court. Indeed, many have a specific statutory link. It does mean however that broadcast regulations will need to have an unambiguous nexus to statutory language.
The FCC will not only see a change in its composition; it will see a fundamental change in how the courts will review its decisions.
You can see the 6th Circuit Court’s decision striking down the FCC’s net neutrality rules here.