PRESS RELEASE: Eleventh Circuit's Vacation of Gray Television's Forfeiture Should Raise Caution Flags at FCC

Free State Foundation President Randolph May issued the following statement regarding the Court of Appeals for the Eleventh Circuit's opinion today vacating a forfeiture penalty of $518,283 assessed against Gray Television, Inc: 

The Free State Foundation filed an amicus brief in Gray Television's appeal of its forfeiture because of certain concerns relating the FCC's rationale for imposing the forfeiture, including whether Gray's due process rights had been violated for lack of fair notice regarding whether Gray's conduct actually violated the Commission's rules as they had been interpreted. While the court did not address the specific points FCC raised, it did hold that the entire
forfeiture should be vacated because the Commission failed to provide fair notice and acted arbitrarily and capriciously in failing to explain the basis for its Notice of Apparent Liability (NAL).

 

The FCC's enforcement regime has been plagued by problematic examples of overreach and abuse in the past, which is a major reason why FSF participated as an amicus in the Gray appeal. Before the agency is allowed to impose massive penalties, it's required as a matter of due process that parties regulated by the agency have fair notice of what's expected of them to comply with Commission rules. Conservatives and rule-of-law advocates have always been rightly concerned by "regulation by enforcement" – that is using an enforcement regime to establish new heretofore unknowable regulatory requirements.

 

The FCC's recent imposition of a massive forfeiture on Telnyx, and others, may well fall into this category, raising similar due process and fair notice concerns regarding whether the conduct alleged to be violative of the agency’s rules was known or knowable.

Presidential Removal Power and the FCC - II

 In my blog post published on February 14, I addressed how the FCC possibly could be impacted by the outcome of cases testing the Trump administration's power to remove the heads of agency officials. Please see that post for background information regarding the significance of the Seila Law case on a president's power to remove a member of a multimember agency like the FCC.

 

Now, I want to call attention to a case that is the first one involving a president's removal power in which the Trump administration is asking the Supreme Court to intervene. It involves President Trump's effort, on February 2, to remove Hampton Dellinger, as head of the Office of Special Counsel. Here are the essential facts as recounted by Amy Howe on SCOTUSblog:

 

Dellinger was appointed by then-President Joe Biden and confirmed by the Senate for a five-year term beginning in 2024. The watchdog agency protects whistleblowers inside the government, independent from the sitting president. It is not related to DOJ special counsels like Jack Smith. Under the federal law creating the Office of Special Counsel, Dellinger could be removed by the president from his job only for “inefficiency, neglect of duty, or malfeasance in office.”

 

So far, President Trump's attempted firing of Mr. Dellinger, for which he gave no reason at all, has been temporarily blocked by United States District Court Judge Amy Berman Jackson, and a D.C. Circuit panel, in a 2-1 decision, refused to lift the temporary restraining order (TRO).

 

On Sunday, Acting Solicitor General Sarah Harris filed an emergency petition with the Supreme Court asking it to vacate the TRO so that President Trump's firing of Mr. Dellinger will be effective immediately. SG Harris declares that "[t]his case involves an unprecedented assault on the separation of powers that warrants immediate relief." She claims that the president possesses "unrestricted power to remove" agency heads, so that "preventing him from exercising these powers thus inflicts the gravest of injuries on the Executive Branch and the separation of powers."

 

It is impossible to predict what the Supreme Court will do in response to the Trump administration's emergency application. And it's important to stress that however the Court responds, such response may itself be of a temporary nature and not resolve the merits of the case or provide a basis for predicting the case's ultimate disposition.

Nevertheless, this and other cases involving a president's removal power bear close attention by FCC watchers – and, of course, FCC commissioners. So, a few observations are in order:

1.     The SG's petition to the Supreme Court in the Dellinger case relies heavily on the Court's Seila Law decision, where, in dicta, the Court intimated that the seminal Humphrey's Executor case may no longer be sufficient to protect members of a multimember commission from removal by a president for any reason, especially if the agency exercises substantial executive power. In the her February 12 letter to Senator Dick Durbin to which I linked in my last post, the Acting Solicitor General makes clear that the Department of Justice no longer believes the tenure protection provisions contained in the FTC Act and similar statutes are constitutional. So, if this view ultimately prevails in the Supreme Court, a president's authority to remove an FCC commissioner without providing any reason would be assured.

2.     Even if the Court does not go "full Seila Law" and accept the Trump administration's claim to unrestricted removal power for multimember agencies such as the FTC, the National Labor Relations Board, and the Consumer Product Safety Commission, it may rely, at least to some extent, on the tenure protection provisions contained in these agencies' enabling statutes. In material respects, they mirror the “inefficiency, neglect of duty, or malfeasance in office” language contained in the Office of Special Counsel statute now before the Supreme Court. As I pointed out in my previous post, the Communications Act contains no such explicit tenure protection limitation language.

The fact that the Communications Act lacks a tenure protection provision similar to those contained in the FTC and other agency enabling statutes – a fact underreported and little considered – possibly could be significant if there is ever a case involving a president's attempt to remove an FCC commissioner. It's possible it could be determinative.

A FINAL NOTE: Please understand that I am not advocating the removal of any FCC commissioner. In that regard, observe that generally I refer to "a" president's removal power, not "the" president's removal power. But as someone who has practiced, and been involved in, communications law and policy for nearly fifty years, I'm very interested in following all the now fast-brewing cases involving a president's removal power for what they could portend for the FCC. If you follow the FCC, you should be interested too!

Court Considering Whether to Extend Stay on FCC’s New Internet Regulation

July 22 was to be the date on which the FCC's new public utility rules for broadband Internet access services were to go into effect. But on July 15, the Sixth Circuit Court of Appeals issued an administrative stay order in the case of In re: MCP No. 185, postponing the effective date until at least August 5. The Sixth Circuit apparently is considering whether a further stay of the Commission’s new Internet regulation is warranted under the Major Questions Doctrine. In its July 15 order, the court invited supplemental briefings from broadband Internet service providers and the Commission regarding stare decisis and the court’s decision in 2005 NCTA v. Brand X Services. 

Pursuant to a June 28 order by the court, the parties filed briefings to the court regarding the legal authority of the Commission’s new Title II order in light of the Supreme Court’s June 28, 2024, decision in Loper Bright Enterprises v. Raimondo. In Loper Bright, the Supreme Court overruled its 1984 decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

The Free State Foundation filed comments and reply comments in the FCC’s Safeguarding and Securing the Open Internet proceeding. Those comments explained why the Commission lacked authority to impose public utility regulation on broadband Internet access services under the Supreme Court’s Major Questions Doctrine. In short, the new Title II order was a major rule of political and economic significance, and Congress never provided the agency with a clear statement of authority to impose such sweeping restrictions on private broadband networks. In April of this year, shortly before the order’s release, I wrote a follow-up, “The FCC’s Internet Regulation Plan Fails the Major Questions Doctrine.”

 

In its legal briefings filed with the Sixth Circuit, the FCC argues that it has not expressly relied on Chevron in adopting its new Title II order but on its inherent statutory authority and the Brand X. But a relevant short passage from FSF’s comments anticipated the agency’s position in the pending litigation:  

The Commission appears to put some hope in the D.C. Circuit’s determination in its 2016 decision in US Telecom v. FCC that Brand X conclusively gave the Commission the authority to determine the proper classification of Internet access service, that the agency’s determinations involved matters of statutory ambiguity and were entitled to deference, and that there was no need to consult the Major Questions Doctrine. But the D.C. Circuit’s determination predated the emergence of the Major Questions Doctrine in Supreme Court

jurisprudence as well as the eclipse of Chevron deference, and the appeals court’s decision now appears to be inconsistent with current jurisprudence.

FSF’s comments were filed in December 2023, months before the Supreme Court’s decision was issued in Loper Bright Enterprises v. Raimondo. Even if the agency did not rely on the now-overruled Chevron Doctrine as purported legal authority for its new Title II order, the Major Questions Doctrine still poses an insuperable obstacle to the order’s legal validity. 

 

It is reported that the Sixth Circuit panel is expected to issues a decision on or before August 5 on whether to issue a stay on the rules pending a decision on the merits.

 

Free State Foundation President Randolph May wrote about the Supreme Court’s June 2024 decision in Loper Bright Enterprises v. Raimondo in a Perspectives from FSF Scholars published on July 2, “Chevron’s Demise Curbs Agency Power, Boosts Congress’s.” Today, July 23, RealClearMarkets published Mr. May's op-ed, "Chevron's Demise Re-Aligns Administrative State With Founders' Vision." Expect FSF Scholars to have more to say about the long-awaited judicial overturn of the Chevron Doctrine and its implications for future FCC activity as well for the chronically overreaching administrative regulatory state. 

FCC's Unreasonable Delay in Withholding 2.5 GHz Band Spectrum Licenses

In a July 19 blog post published by the Federalist Society, Joel Thayer made a convincing case that the FCC has statutory authority under of the Communications Act to issue licenses in the 2.5 GHz spectrum band to 2022 auction bid-winner T-Mobile, despite the expiration of the Commission's spectrum auction authority on March 1, 2023. Consider this also: The FCC's failure to issue to T-Mobile numerous licenses that it won and paid for pursuant to Commission rules appears to constitute agency action "unlawfully withheld or unreasonably delayed" under the Administrative Procedure Act (APA). 

The point of this blog post is not to address whether or not litigation should be pursued in this matter. Rather, the point is to show how the APA and court precedents regarding unreasonable delay and mandamus relief bring into sharper focus the Commission's affirmative legal duty to issue to T-Mobile the 2.5 GHz spectrum licenses. The agency should carry out its duty by promptly issuing the licenses.

 

Repurposing spectrum – especially mid-band (1 GHz to 7 GHz) spectrum – is essential for supporting 5G wireless services. The Commission recognized this when it adopted a 2019 order to put more 2.5 GHz band spectrum into the hands of wireless broadband providers to offer services using that spectrum. And in March 2022, the agency issued a public notice that set procedures by which it would conduct a competitive bidding auction and offer 2.5 GHz spectrum licenses to winning bidders. In August 2022, the FCC concluded its 2.5 GHz band auction, and the agency thereafter announced that over 7,800 county-sized licenses were won by 63 bidders. T-Mobile won over 7,100 such licenses. And by late September 2022, T-Mobile submitted long-form applications and paid $304 million to the FCC for those licenses.

Following the expiration of the FCC's spectrum license auction authority on March 1 of this year, the position of the Commission appears to be that it now lacks authority to issue the 2.5 GHz licenses to T-Mobile, even though T-Mobile has paid for them. However, Mr. Thayer's legal analysis makes a strong showing that the Commission still has authority to issue licenses to T-Mobile pursuant to Sections 307(a) as well as its special temporary authority (STA) contained in Sections 307(c) and 309(c)(2). 

 

If the FCC possesses the authority to issue the 2.5 GHz licenses, I suggest the agency also has a legal obligation to do so. Under the circumstances, the FCC's refusal to issue those licenses to T-Mobile appears to constitute an unreasonable delay by the agency in carrying out its duty, under Section 307(a) and the Commission's rules and procedures.  

 

Section 706(1) of the Administrative Procedure Act (APA) authorizes courts to "compel agency action unlawfully withheld or unreasonably delayed." According to the Supreme Court in Norton v. South Utah Wilderness Alliance (2004), "the only agency action that can be compelled under the APA is action legally required." As the court explained in Norton, "the APA carried forward the traditional practice" of writs of mandamus as codified in the All Writs Act. 

 

Decisions by the D.C. Circuit such as American Hospital Association v. Burwell (2016) treat mandamus petitions under the All Writs Act in conjunction with, or interchangeably with, agency delay claims under Section 706(1) of the APA. To establish the court's jurisdiction and entitlement to mandamus relief, a plaintiff must show: (1) that it has a clear right to the relief requested; (2) that the defendant agency has a clear, non-discretionary duty – owned specifically to the plaintiff – to perform the act in question; and (3) no other adequate remedy exists.

 

According to the D.C. Circuit in In re Core Communications (2008), if those requirements are satisfied, "[t]he central question in evaluating 'a claim of unreasonable delay' is whether the agency's delay is so egregious as to warrant mandamus." The D.C. Circuit applies, on a case-specific basis, one or more factors set forth in TRAC v. FCC (1984) – also known as the "TRAC factors" as "useful guidance" as to whether a delay warrants mandamus. In Burwell, the court stated that "in situations where plaintiffs allege that agency delay is unreasonable despite the absence of a specific statutory deadline, the entire TRAC factor analysis may go to the threshold jurisdictional question: does the agency's delay violate a clear duty?"

 

Section 307(a) of the Communications Act states that if "public convenience, interest, or necessity is served thereby" the FCC "shall grant" to any applicant a "station license." By complying with the FCC's requirements in winning the 2.5 GHz spectrum licenses at auction and timely making payment, T-Mobile has a clear right to those licenses. The Commission now has a clear and non-discretionary duty to issue them. If the agency continues to fail to issue the licenses, or at least grant the special temporary authority that T-Mobile has requested, there appears to be no remedy available other than mandamus and Section 706(1) that would achieve the result of putting those withheld licenses into the hands of the party that won and paid for them. 

 

T-Mobile reasonably relied to its detriment on the Commission's rules, the 2019 order, and the agency's auction procedures. And T-Mobile is materially prejudiced by the agency's indefinite withholding of licenses worth $304 million, as it is being denied the benefit of using the spectrum to offer 5G services to consumers. Thus, all the elements for mandamus relief based on a claim of agency action unlawfully withheld or unreasonably delayed are present. 

 

None of this is to suggest that litigation should be necessary to resolve the problem posed by the FCC's withholding of 2.5 GHz licenses that T-Mobile won at auction. But it does suggest that the APA's "unlawfully withheld/unreasonably delayed" provision offers a useful lens for discerning the Commission's obligation to issue licenses that were validly won at auction and timely purchased. Indeed, it suggests that the case for the Commission to act by issuing the 2.5 GHz licenses, or at least granting T-Mobile's request for special temporary authority, and enabling use for 5G services is stronger than the case for the agency to continue doing nothing except hang onto the money of a private party that followed the rules. 

Panelists Tackle Major Questions About the Future of Administrative Law

The Federalist Society held its 2022 National Lawyers Convention on November 10 through November 12. The Convention panel videos are now available online, including one titled "Major Questions Doctrine: West Virginia v. EPA?" The panel, moderated by Judge Edith Jones of the Fifth Circuit Court of Appeals, features Professors Jennifer Mascott and Thomas Merrill, as well as top-notch litigators Ian Gershengorn and Yaakov Roth. Like other events featuring commentary and analysis of the Supreme Court's 2020 decision in West Virginia v. EPA, the panelists discussed the case as a matter of textual interpretation and interpretative canons, in light of the non-delegation doctrine, in view of Chevron doctrine, and also in connection with the court's application of Chevron deference to agency determinations about the scope of their own jurisdiction in its 2013 decision in City of Arlington v. FCC.  

One interesting point made by Mr. Gershengorn about 51-52 minutes into the panel and again at about the 1 hour 21 minute mark was that net neutrality regulation constitutes "the easiest major doctrines case you're going to see" because then-Judge Brett Kavanaugh decided that net neutrality is a major question in the D.C. Circuit in U.S. Telecom v. FCC. 

 

FSF President Randolph May addressed the implications of West Virginia v. EPA for net neturality regulation in his July 2022 Perspectives from FSF Scholars, "A Major Ruling on Major Questions." And he pointed out that the court's opinion in West Virginina v. EPA actually quoted then-Judge Kavanaugh's 2017 opinion dissenting from denial of en banc review in U.S. Telecom v. FCC. 

Discussing Chevron Deference After West Virginia v. EPA

As Free State Foundation President Randolph May wrote in his July 2022 Perspectives from FSF Scholars, "A Major Ruling on Major Questions": "There are aspects of the U.S. Supreme Court's decision in West Virginia v. EPA that will be studied and debated by scholars—and, indeed, by judges, lawyers, and executive branch officials—for years to come." Indeed, some the implications of that decision were discussed in the Federalist Society's August 1 online panel event, "The Future of Chevron Deference at the Supreme Court." The panel features Columbia Law School Prof. Thomas Merrill, Jones Day attorney Yaakov M. Roth, and moderator Eli Nachmany. Prof. Merrill and Mr. Roth offer their insights into what the role of the Chevron doctrine may be going forward and how it will relate to the major questions doctrine. One interesting matter that was discussed during the event is whether courts will apply the major questions doctrine as a threshold inquiry prior to any application of Chevron's two-step inquiry – or whether the major questions doctrine will be subsumed into Chevron's first step, which has to do with whether Congress clearly spoke to the matter at hand. 

For more on West Virginia v. EPA, check out FSF President May's press release from June 30 of this year responding to the decision as well as his July 2022 Perspectives.  

Big Administrative Law Decisions Pending at SCOTUS

As the Supreme Court wraps up its 2021-2022 term this summer, it will issue opinions that could reshape administrative law. West Virginia v. EPA and American Hospital Association v. Becerra, both of which the Court has not yet decided, involve separation of powers issues that define the scope of the executive branch's powers. The Court might pare back the executive branch's ability to make law as early as tomorrow morning.

West Virginia v. EPA is a challenge to an environmental rule that West Virginia and other petitioners argue exceeds the EPA's authority. Petitioners argue that the EPA's rule is unlawful under the "major questions doctrine," which requires that Congress "speak clearly when authorizing an agency to exercise powers of vast economic and political significance." Randolph May and I wrote a law review article, NFIB V. OSHA: A Unified Separation of Powers Doctrine and Chevron's No Show, on this subject. A ruling in this case could make it harder for agencies to issue sweeping rules based on vague or unspecific authority in laws passed by Congress.

American Hospital Association v. Becerra involves a challenge to an administrative interpretation of a complicated Medicare statute. For our purposes, during the oral argument in this, the Court appeared to consider overturning or narrowing "Chevron deference." Chevron specifies that courts will uphold agency actions that are based on statutory language that is ambiguous or silent, so long as the actions are based on reasonable interpretations of the relevant statutes. In other words, rather than determining the best reading of the law as the Constitution tasks it to do, the judiciary will permit any reasonable interpretation of a vague or ambiguous law. A ruling in Becerra may limit the executive branch's power by instructing the judiciary to be less deferential.

We will closely read these opinions when the Court releases them. We also note that the two legal issues – the major questions doctrine and Chevron deference – mesh together. Read our law review article mentioned above to learn more.

FCC Rule Removing Barriers to Fixed Wireless Broadband Deployments Upheld

On Friday, in Children's Health Defense v. FCC, the D.C. Circuit upheld the FCC's 2021 OTARD Order that expanded the scope of its rule preempting restrictions on broadband Internet rooftop antennas to include all "hub and relay" antennas. Free from such unreasonable deployment barriers, fixed wireless broadband providers are better able to compete against other distribution technologies and serve the needs of consumers.

For background, the Telecommunications Act of 1996 directed the Commission to adopt rules that promote intermodal competition in the video market by preempting state, local, and covenant-based restrictions on the installation of rooftop antennas. Congress mandated this rulemaking because states, localities, multitenant building owners, and home owners' associations often banned rooftop antennas needed for "wireless cable" and satellite TV services, or at minimum saddled them with unreasonably burdensome compliance costs and other obligations.




In response, the Commission adopted its "over-the-air reception device" (OTARD) rule, which preempts regulations that "unreasonably delay or prevent installation" or "unreasonably increase the cost" of rooftop antennas smaller than 1 meter in diameter and no higher than 12 feet above the roofline. In subsequent years, the Commission has updated the OTARD rule multiple times, including expanding the scope of the rule to cover rooftop antennas used for fixed wireless broadband service.

The 2021 OTARD Order is the latest of these updates, revising the OTARD rule to conform with current technical realities of fixed wireless broadband offerings, many of which involve "mesh" networks that rely upon a greater number of smaller antennas. Pursuant to the Order, the OTARD rule now preempts regulation of all "hub" rooftop antennas used for fixed wireless broadband service that fall within the rule's dimension limits. Prior to this Order, the OTARD rule only protected hub antennas used to serve the specific location to which they were attached.

Consumers stand to benefit from the 2021 OTARD Order because it enables fixed wireless providers to deploy the equipment needed to improve and expand network performance.

The D.C. Circuit upheld the 2021 OTARD Order against multiple attacks from petitioners. First, the court rejected petitioners' claim that the FCC lacked authority to expand the OTARD rule, holding that the text of Section 303 of the Communications Act and the Commission's interpretation of this section provided authority and a reasoned basis for its Order. According to the Court, Section 303 grants the Commission authority to regulate radio "stations," which the Commission has interpreted to mean individual antennas using radiofrequency (RF) spectrum. The Order is a lawful use of this authority.

Next, the court rejected petitioners' Administrative Procedures Act challenge that the Commission failed to consider health effects from RF exposure, concluding that this issue was outside the scope of the Order and best addressed in the Commission's RF proceedings. The court reasoned that federal agencies can designate specific proceedings to address specific issues, as the Commission had done in a 2019 rulemaking on RF exposure.

The court also rejected petitioners claim that the Order facially violates the Americans with Disabilities Act (ADA) and Fair Housing Act (FHA), determining that petitioners failed to show that the Order is unlawful in every application and because their arguments again relied on the supposed health effects of RF exposure. A facial challenge to an agency order requires that the order be invalid in every instance, and since the petitioners' claims here involved specific individuals protected by the ADA and FHA, they could not meet this burden. Further, even if petitioners could meet that burden, the claims involved assertions about the health effects of RF exposure that the Commission addressed in a separate proceeding.

Lastly, the court rejected petitioners' claim that the Commission unlawfully preempted state and local law, holding that Section 303 empowers it to do so.

However, the court noted in dicta that the Commission is "treading on thin ice" by preempting state and local statutes mandating community notice prior to the construction of commercial grade antennas, pointing out that such preemption may implicate the First Amendment. But because petitioners in this case relied on a facial challenge to the 2021 OTARD Order, the court did not rule on this narrower preemption issue.

Free State Foundation scholars are pleased to see the D.C. Circuit uphold a sound policy that fosters intermodal broadband competition by removing unreasonable barriers to the deployment of fixed wireless broadband equipment. Director of Policy Studies Seth Cooper wrote FSF Blog posts supporting the 2021 OTARD Order and proceeding. We hope to see more infrastructure reforms that remove broadband deployment barriers.

Federalist Society Podcast Panelists Tackles NFIB v. OSHA and Non-Delegation

The Federalist Society-hosted "Regulatory Transparency Project's Fourth Branch Podcast" features an episode from January 20 on "The Vaccine Mandate Cases and the Future of Administrative Law." The podcast episode featured a panel discussion about the U.S. Supreme Court's decisions released January 13 in NFIB v. OSHA and Biden v. Missouri. The panelists addressed the Court's reasoning in those cases regarding statutory authority and legal doctrines such as non-delegation, major questions, and constitutional avoidance.

One of the panelists for the podcast episode was Law Professor Ilan Wurman, a member of the Free State Foundation's Board of Academic Advisors. Prof. Wurman's 2021 article in the Yale Law Journal on "Non-Delegation at the Founding" was cited by Justice Neil Gorsuch's concurring opinion in NFIB v. OSHA. During the panel discussion, Prof. Wurman offered sharp insights into the differences between non-delegation, major questions, and constitutional avoidance. Listeners will benefit from the contributions of all of the episode's participants regarding the import of NFIB v. OSHA for the future of the administrative state. 

For additional insights on these topics, check out Free State Foundation President Randolph May's Perspectives from FSF Scholars titled "NFIB v. OSHA: Nondelegation, Major Questions, and Chevron's No Show." 

Video of FSF Event: "The Supreme Court, the FCC, and Communications Law"

The YouTube video is now available for the Free State Foundation's January 22 virtual event on "The Supreme Court, the FCC, and Communications Law." The event featured Ilya Shapiro, director of the Cato Institute's Robert A. Levy Center for Constitutional Studies. He is the author of the excellent new book, Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court. Responses to Mr. Shapiro's remarks and discussion followed. This included commentary from the always-insightful Professor Christopher Yoo, John H. Chestnut Professor of Law, Communication, and Computer & Information Science, and Director of the Center for Technology, Innovation & Competition at the University of Pennsylvania Law School.

Be sure to check out the video!

FCC's General Counsel Sums Up Commission's Courtroom Successes

At the FCC's public meeting on January 13, the Commission's General Counsel Thomas Johnson presented on the accomplishments of the Office of the General Counsel during the past four years. As General Johnson sums things up in his presentation:  

Our Litigation team… won in whole or in substantial part 28 out of 31 appeals (or 90%) filed against the agency. We achieved these results despite being challenged on several of this administration's highest-profile items. When we restored a light-touch regulatory framework to broadband in the Restoring Internet Freedom Order, we were challenged in court. Yet, after our defense of the Order—in which I participated in a marathon 5 1⁄2 hour oral argument on a snowy February day following a government shutdown—the D.C. Circuit upheld our reclassification of broadband as a Title I information service. When we modernized our approach to state and local infrastructure siting requirements to accelerate American leadership in 5G deployment, we were challenged in court. But after no fewer than three of my attorneys defended our 5G infrastructure orders before the Ninth Circuit, the court upheld nearly all of our reforms. When we took an innovative and thoughtful approach to reallocating critical "C-Band" spectrum for 5G services, we again were challenged in court. But the D.C. Circuit in short order rejected all legal challenges to our C-Band Order, clearing the way for a record-breaking auction of the spectrum. 

Slides of the presentation are available here.

 

Prior FCC administrations have had notably less success in defending their policy agendas in court. The Commission's legal victories during the last four years demonstrates Chairman Ajit Pai's commitment to the rule of law as well as the able advocacy of General Johnson and his team. Congratulations to General Johnson and the Office for a job well done. 

President Trump Issues Executive Order for Agency Regulatory Accountability

On January 18, President Trump issued an Executive Order intended to increase the democratic accountability of executive branch agencies' regulatory activities. It requires senior appointees of the President to initiate the  Administrative Procedure Act (APA) process process at their agency, to sign finalized rules, and to approve their agency's regulatory agenda. The idea behind this executive order is to help ensure that federal agency heads chosen by the President – officials at least indirectly accountable through national elections – take responsibility for the actions of the agencies they oversee rather than pass of significant rulemaking and regulatory implementation decisions to subordinates who are insulated from the democratic process. Since federal agency heads chosen by the President are removable by the President, the Executive Order is thus a measure for increasing the President's responsibility for regulatory undertakings by the executive branch.

President Trump's Executive Order is consonant with the constitutional separation of powers. It doesn't reduce the powers of any particular executive branch agency, nor does it transfer any power away from the executive branch to the other branches. No lengthy or expensive process requirements are involved. Indeed, the Executive Order appears to be a common-sense measure for democratic accountability. Despite the late hour of the Executive Order's release, it would be to the next Administration's credit to retain and follow the Order. 

FSF President Randolph May Highlights Vibrancy of the Nondelegation Doctrine at the State Level in Essay for 'The Regulatory Review'

On Thursday, The Regulatory Review published "The Nondelegation Doctrine Is Alive and Well in the States," an essay by Free State Foundation President Randolph May.

In this follow-up to his September 25 piece in the Yale Journal on Regulation, "Justice Ginsburg's Replacement Won't Decimate the Administrative State," Mr. May notes that, although the U.S. Supreme Court has not invoked the nondelegation doctrine since 1935, state supreme courts continue to invalidate laws that, through the impermissible delegation of legislative authority, violate separation of powers principles set forth in their own constitutions.

Midwest Institute of Health v. Governor is one such recent example. In that case, decided earlier this month, the Michigan Supreme Court found a law relied upon by Governor Gretchen Whitmer to declare a state of emergency and issue "lockdown" orders during the COVID-19 pandemic to be "an unlawful delegation of legislative powers to the executive branch in violation of the Michigan Constitution."

Citing the U.S. Supreme Court's decision in Gundy v. United States for the proposition that "the constitutional question is whether [the legislature] has supplied an intelligible principle to guide the delegee's use of discretion," the Michigan supreme court concluded that the terms "reasonable" and "necessary" found in the Emergency Powers of the Governor Act of 1945 were mere "illusory 'non-standard' standards," insufficient to "serve[] in any realistic way to transform an otherwise impermissible delegation of legislative power into a permissible delegation of executive power."

Highlighting the existence of similar supreme court decisions in other states, Mr. May expresses hope that they will inspire the U.S. Supreme Court to revitalize the nondelegation doctrine at the federal level, which he concludes "is central to preserving the U.S. Constitution's separation of powers."

Interested in Ad Law? Check Out CRE"s Regulatory Perspectives

Periodically, I like to remind those that are interested in the administrative state and administrative law and regulation to check out the Center for Regulatory Effectiveness (CRE) website and especially its Regulatory Perspectives page. 

Always some useful material for those interested in ad law and regulatory perspectives. CRE is run by Jim Tozzi, one of the real "godfathers" -- in a good sense! -- of a centralized regulatory review process for the executive branch and the use of cost-benefit analysis.

Thanks to Jim for all he's done and continues to do in the interest of good government.

Petition to Supreme Court Could Clear the Way for Modernized Media Rules

On April 17, U.S. General Solicitor Noel Francisco filed a petition to seek Supreme Court review of a decision by the Third Circuit Court of Appeals in Prometheus Radio Project v. FCC. For 17 years, a divided panel of the Third Circuit has effectively blocked all attempts by the FCC to comply with Section 202(h) of the Telecommunications Act of 1996 and modernize media ownership rules. Hopefully, the Supreme Court will agree to hear the case and clear the way for rules that reflect current market conditions. As Free State Foundation President Randolph May and I discussed in our November 2017 Perspectives from FSF Scholars paper, "It's Time for the FCC to Relinquish Control of Media Ownership," existing rules reflect a largely 1970's outlook on the media market. As the Commission has rightly recognized, the rules need to be significantly revamped.

Richard Epstein Previews Book on "The Dubious Morality of the Administrative State"

The Regulatory Transparency Project's "Deep Dive" Podcast #87 features a talk by Prof. Richard Epstein on "The Dubious Morality of Modern Administrative Law." Prof. Epstein's talk highlights themes from his book of that same title, to be published in March 2020. The event took place at UC Berkeley and featured a response by Prof. Daniel Farber. Prof. Epstein has written several incisive and provocative books on law and regulation. And based on his recent remarks at UC Berkeley, "The Dubious Morality of Modern Administrative Law" will surely be another important book worth reading. Prof. Epstein a Distinguished Adjunct Senior Scholar at the Free State Foundation.