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1 1 (September 4, 2024)

handle is hein.crs/goveqnb0001 and id is 1 raw text is: a a Congressional Research Service Informing the legislative debate since 1914 September 4, 2024 Federal Communications Commission: Agency Regulatory Authority and Selected Rules The Federal Communications Commission (FCC) is an independent federal administrative agency established by the Communications Act of 1934 (1934 Act; 47 U.S.C. §151 et seq.) to regulate interstate and international communications by radio, television, wire, satellite, and cable. The agency is headed by five commissioners serving five-year terms who are appointed by the President and subject to confirmation by the Senate. The President designates one of the commissioners as chairperson. No more than three commissioners may be members of the same political party. The FCC operates under a public interest mandate. How this mandate is applied depends on how the Commission interprets the public interest. Some commissioners might believe a particular regulation is needed to protect and benefit the public at large, while other commissioners might believe the public interest is better served by the promotion of market efficiency. Congress granted the FCC wide latitude and flexibility in interpreting the public interest standard to reflect changing circumstances. These circumstances, paired with changes in FCC leadership, have led to significant alterations over time in how the FCC regulates the broadcast and telecommunications industries. The context in which the FCC does so is shaped by various factors, including how the courts approach review of the FCC's interpretations in regulations. Some observers have criticized the agency for not attempting to define the public interest standard in concrete terms. This CRS product provides a primer on the FCC's principal rulemaking authority, describes how selected FCC rules might be affected by recent judicial developments, and briefly offers considerations for Congress. Primer on FCC Author t The FCC's regulatory activities are governed by the Administrative Procedure Act (APA; 5 U.S.C. §551 et seq.). The APA prescribes the way administrative agencies propose and establish regulations-called the rulemaking process-and it grants federal courts authority to review certain agency actions. The FCC sometimes references statutory provisions within the Telecommunications Act of 1996 (1996 Act; P.L. 104- 104) as justification for its rulemakings. Some have described the 1996 Act as being vague. For example, in AT&T Corp. v. Iowa Utilities Bd., which addressed whether the FCC had authority to implement certain pricing provisions of the 1996 Act, the U.S. Supreme Court wrote, it would be gross understatement to say that the 1996 Act is not a model of clarity. It is in many important respects a model of ambiguity or indeed even self-contradiction. Loper Bright and Major uestions Recent judicial developments may result in greater constraints on the FCC's regulatory authority. On June 28, 2024, in Loper Bright Enterprises v. Raimondo (Loper Bright), the Supreme Court overruled the framework for reviewing agency actions it had established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (Chevron). Chevron had generally required federal courts to defer to federal agencies' reasonable interpretations of ambiguous statutory provisions that they administered. Loper Bright instead directs the reviewing court to exercise its independent judgment about the meaning of ambiguous statutes. Loper Bright may alter how future courts review rulemakings, but it was not intended to call into question prior cases that relied on Chevron. The courts may also approach FCC actions of national significance in light of the major questions doctrine-in which an agency's action must be supported by clear congressional authorization when the agency's claim of authority concerns an issue of vast economic and political significance. This context has heightened stakeholder and congressional interest in the FCC's authorities and its rules. On July 18, 2024, the chairs of the House Committee on Energy and Commerce and House Committee on Oversight and Accountability wrote to the FCC requesting information on certain agency rulemakings since January 20, 2021. The FCC responded on July 31, 2024. Se ected FCC Ru es Three recent FCC orders illustrate the types of rules that might be challenged as exceeding FCC authority under Loper Bright or the major questions doctrine. Dig ta Discrimination Order Section 60506 of the Infrastructure Investment and Jobs Act (P.L. 117-58) requires the FCC to, among other things, adopt rules to facilitate equal access to broadband service by (1) preventing digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin and (2) identifying steps to eliminate digital discrimination. In November 2023, the FCC adopted rules to implement these provisions. In definng digital discrimination of access, the FCC barred business conduct motivated by discrimination on any of the six listed bases in the statute (referred to by the FCC as disparate treatment) and barred business conduct having discriminatory effects (referred to by the FCC as disparate impact). The FCC concluded that it has enforcement authority against any entity that can affect consumer access to broadband service.

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