Leamer: The future of the regulatory regime hangs in the balance – Daily Independent

Nathan Leamer

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By Nathan Leamer | CEO, Fixed Gear Strategies

All political eyes will be on the elections in the next few days. It will be a massive sprint for every candidate on the ballot, with the future of the presidency and Congress hanging in the balance.

It is worth looking at the legal side; specifically, how a recent Supreme Court decision has a significant effect on the Federal Communications Commission and what independent agencies are focusing on moving forward.

For years, federal agencies followed Chevron deference, a principle of judicial review in which federal courts defer to an agency’s reasonable interpretation when a federal law is ambiguous or leaves an administrative loophole. The doctrine was established by the Supreme Court in 1984 in Chevron v. Natural Resources Defense Council. The purpose of the doctrine was to respect the expertise and policy choices of executive agencies and the separation of powers between the branches of government.

Under this principle, the Federal Communications Commission (FCC) could boldly move forward with far-reaching decisions, such as the recently passed digital discrimination order, which arguably overstepped its authority, dramatically affecting small businesses and consumers. Although intended to improve Internet access for those on the wrong side of the digital divide, the element created, in the words of Commissioner Brendan Carr, “a framework that gives the FCC almost unlimited power to veto private sector decisions” and to for the first time, it gives the “federal government a roving mandate to micromanage nearly every aspect of how the Internet works.”

One example of this overuse is how the Digital Discrimination Order’s broad definition of “covered entities” covers not only broadband providers, but also contractors employed by broadband providers and entities responsible for maintaining and improving network infrastructure. For that reason, NATE: The Association of Communications Infrastructure Contractors has joined a lawsuit in the 8th Circuit Court of Appeals against the FCC to overturn that order.

Efforts to dismantle this burdensome regulatory regime gained momentum thanks to the Supreme Court. In last summer’s Loper Bright Enterprises v. Raimondo decision, the Supreme Court ruled that courts must use their discretion to decide whether an agency acted within its statutory authority. This overturned Chevron Deference, which required courts to defer to agencies’ interpretations of the law. This reaffirmed the role of the judiciary in resolving legal ambiguities. In addition, the ruling underscored the importance of Congress’ clear delegation of authority to agencies, which could lead to more specific statutory language in future legislation.

As Joe Cain, Director of Broadband and Spectrum Policy at the Information Technology and Innovation Foundation noted, “The Supreme Court’s decision in Loper Bright v. Raimondo makes it even less likely that the FCC’s recent regulatory offenses regarding digital discrimination and Internet Title II will survive judicial review. He explains, “Courts used to defer to an agency’s interpretation of an ambiguous statute if that interpretation was merely reasonable. … It is now even more likely that the courts will also find them illegal.”

Because of the current makeup of the Supreme Court, this doctrine will guide how courts approach these thorny regulatory issues for the foreseeable future. Regardless of which party wins in November, this legal change will have lasting effects that could come as a big relief to small businesses routinely mired in red tape and regulatory arbitrage. It’s a whole new ball game.

Hopefully, the recent Loper decision will guide the court’s approach and overturn the FCC’s regrettable digital discrimination order. This leads to better policy outcomes when federal agencies are no longer able to stretch legislative ambiguity to expand their reach.

Editor’s Note: Nathan Leamer is the CEO of Fixed Gear Strategies. Reader reactions, pro or con, are welcome [email protected].