FCC Tries To Pre-Empt Telecom Industry Claim That The Supreme Court Neutered Its Authority To Protect Consumers

As noted a few times, recent Supreme Court rulings have thrown most U.S. regulatory enforcement into operational and legal chaos. The dismantling of Chevron in particular now dictates that regulators can’t implement new rules or reforms without the explicit approval of Congress.

Two problems there: one, regulators ideally have very specific subject expertise Congress doesn’t have (think about Ted Cruz trying to craft a law managing spectrum auctions). Two, Congress has been lobbied into utterly corrupt dysfunction, ensuring these theoretical, better, clearer laws never actually arrive. Corporations have dressed Chevron up as some noble rebalancing of institutional power; in reality they’ve just taken a hatchet to the roots of corporate accountability.

This will impact every regulatory agency governing every industry touching every aspect of your lives, as corporations from a wide variety of sectors insist the regulators overseeing them now have no power to do anything they don’t like (ProPublica has a good recent breakdown of the broader impact).

This impact isn’t going to be subtle, and in many instances (labor, environmental, civil rights) it will prove fatal at significant new scale. On many fronts, the groundwork is being laid to make many regulators entirely decorative. I’ve repeatedly found that most people (including a lot of people in policy and media) don’t really understand what’s coming courtesy of the radical Roberts’ majority.

Over in telecom, the regional broadband monopolies (with their well-lobbied congressional allies in tow) are already busy trying to claim the FCC no longer has the authority to protect consumers, whether it’s policing predatory fees on your broadband bills, or trying to enforce basic net neutrality principles. Everything (including efforts to stop racism in broadband deployment) is being challenged anew.

The FCC has been firing off letters to various Senators trying to get ahead of the claim it can no longer do its job. In short, FCC boss Jessica Rosenworcel argues that the the Communications Act of 1934 and the Administrative Procedures Act gives the agency broad latitude to continue to function in the post-Chevron era:

“The staff at the Commission work diligently to ensure that all regulations have a firm
grounding in the law 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.”

One problem is we’re no longer operating in an environment where logic or precedent actually mean all that much. The top court of the land has shown it’s easily bribe-able by a free Winnebago. Lower courts are now stocked with all manner of Trump-era sycophants keen to see the last, already fairly pathetic vestiges of corporate oversight stripped away.

Telecom giants already take the FCC to court for pretty much every new ruling or reform it tries to implement, however minor. Their position has always been that the agency is powerless to stop them from taking advantage of captive broadband customers trapped under a monopoly or duopoly. But now those same companies have significant new legal leverage in their quest to dismantle oversight.

There are instances where the FCC might be able to prevail. There are also instances (like net neutrality) where states might jump in and fill the consumer protection void. But it’s anything but certain. And again, some variation of this same mess will be playing out in every sector that governs your lives, whether it’s the FCC trying to protect you from Comcast, or the EPA trying to protect you from cancer.

There’s a segment of journalists and policy folks who seem insistent that this isn’t going to be all that bad, or believe that the folks ringing alarm bells post Chevron are being hyperbolic. But as somebody who has watched regulators feebly try to protect consumers more than twenty years, I have no idea what reality they’re operating in.