Republicans Could Use CRA or Courts to Roll Back FCC Policies

The CRA in part lets Congress issue a joint resolution of disapproval, invalidating an agency's final rule if it was issued up to 60 legislative days before the end of the previous Congress, known as a “lookback period.” The precise cut-off for the current Congress isn’t yet known, but the Congressional Research Service has estimated that the lookback period will stretch to the beginning of August.

A CRA dashboard from the George Washington University Regulatory Studies Center says the FCC issued 34 rules within that estimated lookback period. Two of the rulemakings, the Cybersecurity Pilot Program and Wi-Fi hot spots order, garnered vocal dissents from FCC Republicans Brendan Carr and Nathan Simington. “The FCC’s decision here and elsewhere to exceed the limits of our E-Rate authorization has not gone unnoticed by members of Congress that write the laws,” said Carr in his dissent from the hot spot order. Carr is widely predicted to be the next FCC chair.

While the CRA has been used to roll back rules only 20 times since its 1996 creation, 16 of those instances occurred under President-elect Donald Trump's prior administration, said Sarah Hay, a policy analyst at the GW Regulatory Studies Center focused on the CRA. Using the CRA to undo some FCC rules “would be in character” for the incoming administration, she said. The current Congress has also issued more resolutions of disapproval than previous bodies, she noted.

The CRA's use has been relatively limited in the past because it requires agreement of both houses of Congress and either a willing president or a veto-proof majority, said Arnold and Porter attorney David Skillman, who has written about the CRA. In addition, the CRA contains a provision that bars an agency from issuing substantially similar rulemakings to an order once it's invalidated, Skillman noted. Though the law doesn’t precisely define “similar,” the provision has been broadly interpreted, he said. In practice, that means those pushing for a CRA on a rule aren’t seeking minor modifications. The CRA is “a blunt instrument,” Skillman said.

During a Hudson Institute forum last week (see 2411140042), former FCC Commissioner Robert McDowell highlighted handset unlocking rules as the type of item that could be subject to a CRA if the FCC approves rules during the next two months. McDowell said while Republican commissioners voted for an NPRM, they appear likely to dissent on final rules.

The FCC’s Wi-Fi hot spot July order, which lets schools and libraries use E-rate support for off-premises Wi-Fi hot spots and wireless internet services, could be a prime target for a CRA, industry observers acknowledged. The order was approved 3-2 with FCC Republicans dissenting (see 2407180024).

“Until we know how long the lame duck lasts, we don't have a good fix on the lookback deadline. So it isn't 100% certain that the hot spot order will qualify for the CRA,” said Andrew Schwartzman, senior counselor at the Benton Institute for Broadband & Society. Otherwise, it’s “definitely a good suspect,” he said: “I‘m not sure that all Republicans will want to vote against expanding broadband access.”

Schwartzman noted that FCC Chairwoman Jessica Rosenworcel “finished the most controversial items in the spring,” so there may not be many targets. Sheriffs might go after the incarcerated people's communications services rules, also approved in July (see 2407140001), “but given that Carr and Simington did not dissent, that might be weird,” he said.

Seth Cooper, Free State Foundation director-policy studies, sees the Wi-Fi order as a target. The agency “attempted to go around Congress and extend a temporary subsidy program that sunset under law,” he said. The CRA offers Congress the “opportunity to ensure that money collected from ratepayers is spent more wisely and efficiently,” he said. “Repeal using the CRA also would appeal to members of Congress who have expressed reasonable concerns about government subsidizing unsupervised internet access by children using Wi-Fi hot spots.”

The FCC will likely be “cautious” about new orders “given the CRA overhang,” emailed Joe Kane, Information Technology and Innovation Foundation director-broadband and spectrum policy. The data caps and handset unlocking proceedings “are likely ones where the Commission will hold off or have to moderate from going too far 'left,’” he said. Other proceedings like revised citizens broadband radio service rules “probably get too technical for Congress to want to weigh in regardless of how they go.”

The Courts

Since the CRA likely won’t apply to most rules the next administration might want to roll back, it could seek help from the courts, industry officials told us.

Dickinson Wright’s Lee Petro, a former FCBA president, is among the communications lawyers interested in how Carr will act on the FCC’s current legal battles. “When we had the transition” in 2017 from the Obama administration to Trump’s first term there were “situations where the incoming Republican chair, Ajit Pai, instructed the commission’s general counsel to basically disavow orders that [he] had dissented from” when Tom Wheeler was chairman, Petro told us. He noted Pai’s January 2017 decision to end the FCC’s defense of its inmate calling service intrastate rate caps in Global Tel*Link v. FCC ahead of the U.S. Court of Appeals of the D.C. Circuit’s planned review of the case that February (see 1701310061).

Some communications industry officials predict a Carr-led FCC might cease defending the agency’s 2018 quadrennial review order and its April net neutrality order and reclassification of broadband as a Communications Act Title II service. Other officials countered that industry groups might prefer a court verdict against an FCC regulation to the agency simply rolling it back because a court ruling constrains future agency action.

Some officials expect Carr might let the 6th U.S. Circuit Court of Appeals decide on the net neutrality order in the hopes that the decision will set a precedent that potentially prohibits a future majority-Democratic commission from resurrecting the rules. A three-judge 6th Circuit panel in late October eyed whether the U.S. Supreme Court’s Loper Bright Enterprises v. Raimondo ruling (see 2407010036) and its shift toward the major questions doctrine endangered the net neutrality order (see 2410310041).

Former Democratic FCC Commissioner Michael Copps is pessimistic about Carr’s appetite for defending Rosenworcel-era actions once he takes the gavel. The U.S. Supreme Court “only worsens the FCC’s fate,” Copps wrote to us in an email. “It’s the worst of times not just for the agency, but consumers who have depended upon it for a telecom-media environment that serves the needs of what is left of our democracy.”