Industry and consumer groups clashed on whether the FCC should reclassify broadband internet access as a Title II service under the Communications Act in comments posted through Friday in docket 23-320 (see 2310190020). Commenters against reclassification warned that it would stifle innovation and competition. Supporters said the proposal would ensure consumers have equal access to broadband ahead of anticipated federal broadband deployment programs.
Major Questions Doctrine
The U.S. Supreme Court might opt to avoid likely fights over the FCC's digital discrimination rules or proposed Title II net neutrality rules, Andrew Schwartzman, Benton Institute for Broadband & Society's senior counselor, told Communications Daily this month. In an extensive sit-down interview, Schwartzman spoke about his long career as a public interest advocate within telecommunications, evolution of that domain, and how the FCC's net neutrality regulatory push is not merely a repeat of the past. The following transcript of our conversation was edited for length and clarity.
FCC Commissioner Brendan Carr said during a Federalist Society panel discussion Friday that the Supreme Court’s growing focus on the major questions doctrine and the expected death of the Chevron doctrine (see 2306290063) has potential benefits in forcing lawmakers to make hard policy decisions.
Senate Commerce Committee member Eric Schmitt, R-Mo., is pressing FCC Chairwoman Jessica Rosenworcel to explain by Nov. 16 the legal justification for pursuing her proposal to largely reinstate the commission’s rescinded 2015 net neutrality rules and reclassification of broadband as a Communications Act Title II service (see 2310190020). Senate Commerce ranking member Ted Cruz of Texas and other congressional Republicans vigorously criticized Rosenworcel for considering the reboot but are holding back from pursuing legislation to stop her, for now (see 2310170071). “I will not stand idly by as the FCC under your leadership attempts to usurp Congress and claim Article I Branch legislative authority for yourself,” Schmitt said in a Thursday letter to Rosenworcel. “If you decide to move forward with this reckless action, expect my colleagues and I” on Senate Commerce “to call for your appearance before the committee to be held accountable. Though your recent decisions demonstrate that you clearly believe that Congress is a mere speedbump, I will defend the will of Missourians who elected me to the Senate to stand up against economy killing regulations such as the one you are proposing.” Schmitt is asking Rosenworcel to detail “the specific authority granted by Congress to support” the new net neutrality NPRM. He also wants her to “confirm that you believe” Title II reclassification “would be a regulation of ‘vast economic and political significance'” and “explain how the Commission is preparing for an almost certain legal challenge under the major questions doctrine” that the U.S. Supreme Court invoked in its 2022 West Virginia v. EPA ruling (see 2206300066).
FCC commissioners divided Thursday on a vote to reestablish net neutrality rules, during the agency's first open meeting with a full commission since Chairwoman Jessica Rosenworcel took the helm (see 2310130051). Commissioners Brendan Carr and Nathan Simington voted against an NPRM seeking comment on a proposal to return to 2015 rules that classified broadband as a Title II telecom service.
House Commerce Committee Republicans renewed their concerns Tuesday with FCC Chairwoman Jessica Rosenworcel’s draft net neutrality NPRM reclassifying broadband as a Communications Act Title II service (see 2309280084), but no one is expecting GOP members of that panel or elsewhere on Capitol Hill to make a strong push for now on legislation to halt the expected rewrite. Net neutrality legislation would be even more unlikely to pass now amid divided control of Congress than it was last year when Democrats had majorities in both chambers (see 2207280063), lawmakers and lobbyists told us. Lawmakers are less enthusiastic about even pushing a pure messaging bill on the issue amid the current stasis, lobbyists said.
The FCC should issue an NPRM on proposals to require content companies to report on the diversity of their vendors to the commission, several diversity and public interest groups, Fuse and Allen Media Group told Media Bureau Chief Holly Saurer and Media Bureau staff, according to an ex parte filing posted Monday in docket 22-209. The FCC “should collect and report data that allows the public to understand if programming offered by a video distributor is reflective of the nation’s diversity,” said the filing from Public Knowledge, the United Church of Christ Media Justice Office, the National Urban League, Asian Americans Advancing Justice, the National Hispanic Media Coalition, and others. Advocates for the content vendor diversity report said it would apply only to media companies that have some affiliation with FCC regulatees, so entities such as Disney and Google would have to report data while companies like Netflix wouldn't (see 2207260003). Arguments that the U.S. Supreme Court’s major questions doctrine would prevent the FCC from collecting and publishing such data are incorrect, the filing said. Under the new -- and still developing -- major questions doctrine, SCOTUS ruled that even in matters that might be under a federal agency’s purview, only Congress can decide expansive or high dollar matters (see 2302080064). “Congress explicitly authorized the FCC back in 1984 to adopt rules to require MVPDs to 'analyze the results of [their] efforts to recruit, hire, promote, and use the services of minorities and women,'” said the ex parte filing. The “explicit Congressional directive” puts the proposed CVDR “far outside the Major Questions Doctrine,” the filing said.
Orbital debris experts think the FCC's fining of Dish Network for improper disposal of one of its satellites (see 2310020049) shows the agency getting increasingly serious about orbital debris enforcement. Yet some doubt the fine and threat of more agency enforcement action will have more than a minor effect on how space operators operate. Several saw it a sign that the agency is planting its flag as the orbital debris regulator. Space operators will be much more diligent about tracking their fuel consumption and maybe not try to squeeze quite so much operational life out of their satellites, said Mark Sundahl, director-Global Space Law Center at Cleveland State University. He said it could lead to industry standards on fuel consumption. The commission didn't comment.
Senate Commerce Committee ranking member Ted Cruz of Texas, Communications Subcommittee ranking member John Thune of South Dakota and 41 other chamber Republicans urged FCC Chairwoman Jessica Rosenworcel Thursday to “end this charade and shelve” her draft net neutrality NPRM aimed at largely reinstating the commission’s rescinded 2015 rules and reclassification of broadband as a Communications Act Title II service (see 2309280084). Republicans have given the proposal an almost uniformly negative reception since Rosenworcel first announced it last week (see 2309260047).
The FCC's abdicating its internet oversight authority in 2017 largely neutered the agency's ability to protect online privacy and to require ISPs to address lengthy outages, Chairwoman Jessica Rosenworcel said Tuesday as she announced the agency was moving to take that authority back. Reclassification of broadband as a service under Title II would end having to often jury-rig legal justifications for actions the agency is taking, she said, saying October's agenda will include a draft NPRM on reinstating the agency's 2015 net neutrality rules. The move met loud criticism, including from inside the FCC, as well as support.