Former FCC General Counsels See 'Significant Impacts' From SCOTUS Cases

Christopher Wright, Sean Lev and Jason Neal. Wright and Lev are former FCC general counsels. “Many FCC actions are based on statutory provisions that are at least arguably ambiguous, and litigants affected by those decisions will in some cases have a greater chance to prevail in federal court,” in light of the Loper Bright Enterprises v. Raimondo decision (see 2407010036), the attorneys said. However, many of the rules that Congress directed the FCC to implement use terms like “appropriate” or “reasonable," they noted. “The meaning of the Court’s reasoning regarding those instances where Congress clearly has authorized some amount of discretion will be important (and surely contested),” they said. While SCOTUS ruled previous decisions that relied on Chevron deference remain in effect, that's also likely to get tested in the courts, they wrote. In its decision in SEC v. Jarkesy (see 2406270063), the court didn’t specify what opportunities for a jury trial satisfy the Seventh Amendment. Although FCC enforcement proceedings haven’t generally involved juries, even before Jarkesy an entity facing an FCC forfeiture could decline to pay, and eventually face a civil suit from DOJ to collect the unpaid money, a proceeding called a “trial de novo.” The FCC has previously contended that this opportunity satisfies any 7th Amendment requirements, the attorneys said.