Rosenworcel Confident FCC Rules Will Survive in Court

WASHINGTON, August 22, 2024 – The Supreme Court has issued a series of rulings weakening the power of federal agencies. But Federal Communications Commission Chairwoman Jessica Rosenworcel told GOP lawmakers she’s not worried.

“The staff at the FCC work diligently to ensure that all regulations have a firm  grounding in the law,” she wrote in a letter posted Tuesday, “and I remain confident that the Commission’s rules and decisions will withstand judicial review under the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo and other applicable precedent.”

The high court expanded its major questions rule in 2022, preventing agencies from acting on “issues of vast political and economic significance” without explicit authorization from Congress. In July, the Court’s Loper Bright decision struck down the longstanding practice of deferring to agency interpretations of ambiguous statutes, and another ruling made it more difficult for agencies to enforce civil penalties.

Indeed, the agency has been busy in court. Rosenworcel told lawmakers the FCC was involved in 40 ongoing legal challenges to its rules and other actions adopted since Jan. 20, 2021. Of those, 26 originated after commissioner Anna Gomez joined the agency in September 2023, breaking a yearslong 2-2 split and giving Democrats the majority. 

Not all those cases were related to the agency’s enacting Democratic telecom policy priorities, but the agency has found itself defending several of its flagship rulemakings in court, including reinstated net neutrality rules, new digital discrimination rules, expanded subsidies, and stronger data breach rules for telecom carriers.

The net neutrality rules, still a hot-button partisan issue despite less popular interest than when the policy was repealed under the Trump FCC in 2017, were put on pause earlier this month by the U.S. Court of Appeals for the Sixth Circuit in Cincinnati. Judges said the ISPs looking to strike down the rules were “likely to succeed on the merits,” on the basis of their argument that making broadband a Title II service was a major question.

Republicans in both chambers of Congress had written the FCC, and several other agencies, in July to put pressure on them in the wake of the Loper Bright ruling.

“Given the Biden administration’s record of agency overreach, we are compelled to underscore the implications of Loper Bright and remind you of the limitations it has set on your authority,” House GOP members wrote to Rosenworcel that month.