Upcoming Limits on FCC Statutory Interpretations Unless It Deregulates

             The activist, results-driven Supreme Court appears ready to limit severely the ability of the Federal Communications Commission and other independent regulatory agencies to interpret ambiguous statutory language and answer essential questions about statutory meaning, even when vastly changing markets and technologies makes such work essential.  Lacking humility and common sense, the Court appears hellbent to outlaw statutory interpretation like what kinds of services fit within the following ambiguous words Congress crafted, circa 1996: “advanced telecommunications capability.” 47 U.S.C. § 1302(a), codified by the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, (1996)

            If one applies basic jurisprudence, telecommunications means what Congress defined it to be in the applicable statute, i.e., 47 U.S. Code § 153 – Definitions. It just so happens that Congress did provide a definition of advanced communications services, information service, telecommunications, and telecommunications service.  Applying the yet to be reversed Chevron Doctrine, the FCC has no need to interpret unambiguous statutory language, because it can apply the plain meaning.

            However, Congress failed to provide a definition for something that is both advanced and telecommunications.  The legislature did not define “advanced telecommunications capability.” Heretofore, no one has questioned the lawfulness of the FCC’s determination that this undefined category includes broadband, Internet access.  Additionally, no one has challenged the lawfulness of the FCC’s determination that its universal service mission, spelled out in Section 254 of the Telecommunications Act, includes promoting affordable access to broadband, interpreted by the Commission to fit somewhere within the definition of advanced telecommunications and/or information services.

            Just now, the Court finds it mission critical to ignore regulatory agency expertise, because deference might legitimize more, different, or possibly even improved regulation.  Apparently, any recalibration expands the dreaded regulatory state, managed by unelected officials intent on micromanaging our lives and depriving us of life, liberty, and the pursuit of happiness. 

            How ironic, that no one raised a peep when the FCC unilaterally decided to reclassify as an information service a legacy technology for decades fitting snugly in the telecommunications category.  With an eye toward expanding further the array of convergent services that combine both basic and advanced telecommunications capabilities, in 2018 then FCC Chairman Ajit Pai championed a new determination that paging, texting, and short messaging was much more sophisticated and “advanced” than simply keying in letters and numbers on a telephone handset.  See Petitions for Declaratory Ruling on Regulatory Status of Wireless Messaging Service, Declaratory Ruling, 33 FCC Rcd. 12075 (2018); available at: https://docs.fcc.gov/public/attachments/FCC-18-178A1.pdf.

            In a Declaratory Ruling, the FCC asked and answered whether it should shift its classification of texting from “old school” basic, common carrier telecommunications to something advanced and largely unregulatable information processing.  Most short messaging still involves keying in letters and numbers on a wireless handset, but clever statutory reinterpretation made it possible for a deregulatory-driven FCC to take matters into its own hand without awaiting new legislation.

            With the Supreme Court’s newfound antipathy to regulatory agency overreach, would the FCC’s reclassification of texting as data processing pass muster now?  If so, why would deregulatory freelancing not constitute unlawful overreach by a regulatory agency unwilling to await new statutory instruction?