Student Loan Case Could Shed Light on Future FCC Challenges, Say FCBA Panelists

Panelists also discussed the implications of major FCC cases from the past 18 months and upcoming agency litigation. “The open question that will be worked out in these cases is what is a major question? How major does it have to be?” said Lewis, saying the FCC is “fully prepared” to handle major questions-based arguments about its decisions.

Under the major questions doctrine -- articulated by SCOTUS in West Virginia v. EPA -- agencies aren’t empowered to decide issues with large economic or political importance without specific delegation from Congress.

Depending on how the doctrine is fleshed out in a SCOTUS decision in the Nebraska case, there could be a “temptation” within the communications bar to challenge every FCC decision claiming it's a major question, Lewis said. A great deal of money is at stake on how the agency rules on many issues, making it easy for challengers to argue that a given matter is major, Wright said. The agency has also in the past frequently relied on ancillary authority rather than specific legislative language, he said.

The USF was created that way, and the FCC began regulating cable before Congress gave it specific authority to do so, Wright said. Concern about future litigation could lead FCC commissioners to tone down the statements issued with rulemakings to avoid identifying an order as especially groundbreaking or important, Wright said. Lewis said he expected to see concern about the major questions doctrine affecting FCC decisions over the next year. “We certainly are getting those arguments,” he said.

Increasing litigation, legislation and enforcement actions aimed at preventing robocalls are creating “anxiety” among telecom providers and companies seeking to act in good faith, said Daniel Kahn of Wilkinson Barker in a discussion of the state AG robocall case against Avid Telecom. Rules are changing each month as the FCC keeps adding robocall items to its agenda, he said. “The multitude of federal and state officials increase the risk of providers tripping over one wire or another,” he said. Kahn said he hopes that, as the standards mature, “officials will be able to draw lines that make sense to divide bad actors from well-intentioned companies that are trying to their best to comply.”

It will be difficult for school boards and private individuals bringing cases against social media platforms under public nuisance laws to succeed, said Davis Wright's Thalia Sunderesan, discussing Montgomery County Board of Education v. Meta. Though arguments that social media is related to mental health issues in children resonate with the public, it will likely be hard to show direct linkages in court, she said. State laws against frivolous lawsuits could also be a factor in how such cases proceed, she said.

Court decisions involving the FCC over the past year largely affirmed the agency’s powers, said Lewis and Office of General Counsel attorney Sarah Citrin. The U.S. Court of Appeals for the D.C. Circuit in Intelligent Transportation Society of America v. FCC ruled the FCC’s core function of regulating spectrum applies even when the agency is making decisions that affect other industries, Citrin said. Decisions in multiple circuits upholding the FCC’s authority to collect fees from companies to support the USF show the arguments by Consumers’ Research that the fees are an unconstitutional tax “are so far not getting any traction,” Lewis said.

The D.C. Circuit also affirmed the agency’s authority in national security matters and control over its own processes by upholding the FCC’s action to revoke China Telecom’s Section 214 authorizations, Lewis said. The agency faces ongoing proceedings against several other China-based companies over similar matters, Lewis said. National security “has become a more significant part of commission practice,” Lewis said. NAB’s litigation against the FCC’s foreign-sponsored content rules didn't affirm the agency’s authority because the FCC lost that case, Lewis said. The D.C. Circuit ruled the agency didn’t have broad authority to impose requirements beyond the explicit limits outlined by Congress. “So, point taken, this is a lesson all agencies continually have to be reminded about: statutes matter,” Lewis said.

Along with pending Consumers’ Research USF challenges and several national security cases, the agency is looking ahead to ongoing challenges of its granting of non-geostationary satellite applications for SpaceX (see 2306210019), Lewis said.