An Epidemic of Overreach at the Supreme Court, FCC and Beyond

           Recent precedent overturning decisions by the Supreme Court prompted thoughts about the human proclivity to overreach when assuming—correctly or not—the opportunity and divine duty to act. I am certain the conversative majority at the Court thinks they should exploit their numbers to the max, having toiled in the vineyards for so many years as a minority voice of reason.

           It seems almost a foregone conclusion that an unfortunate and harmful sequence of increasingly unwise and ill-conceived actions start when an individual or group perceives an opportunity to overplay an advantage that might be a long time coming.

           In quick succession, the Supreme Court conservative wing has checked off a longstanding wish list. Surely there is strength in numbers and reinforcing validation. Having achieved longstanding goals, the Court conservatives now expand their list of attainable ambitions in an ever more aggressive and risky selection of outcomes previously considered both unattainable and unlawful.

           The possibility exists that overreach may reach an endpoint and pushback. Overconfidence morphs into hubris, inflexibility, results-driven decision making, sanctimoniousness, and arrogance.  Having reversed Roe v. Wade, why not press onward and outlaw the decades-long use of medications that terminate early pregnancies. Why stop there? How about outlawing contraception? Might there be a way to execute the religious view that in vitro pregnancies, supported by federally approved fertility enhancing medications, can be judicially deemed unlawful? While they are at it, might the end point be a complete prohibition on any sort of pregnancy termination?

           I hope pushback eventually reaches a critical mass, when overreach, of any sort and political basis, has become unpopular, unlawful, and based on assumptions and personal views rather than facts. 

           Let’s consider overreach at the FCC by Democratic and Republican majorities.  A Democratic majority FCC can engage in mission creep, sometimes the product of Chevon Doctrine deference to agency expertise.  A Republican majority might interpret a statute as authorizing its result-driven determination that current market conditions justify deregulation and industry self-regulation.

           A humble judiciary, not motivated by doctrine, politics, and personal bias, might not second guess the FCC’s interpretation of an ambiguous law. Often this makes sense, because a hands-on, close understanding of technology and market change trumps insistence on narrow, historical extrapolation.  For example, a reviewing court should uphold an FCC expansion of its regulatory wingspan to include fiber optic cable, even though the Communications Act of 1934 specifies jurisdiction only for “wire and radio.”  See https://telefrieden.blogspot.com/2024/06/who-needs-humility-when-you-have-6-3.html.

           Democratic overreach might delay or reject deregulation based on a determination that self-regulation will harm consumers, promote market concentration, and stifle market entry by small ventures with a promising new business plan. Republicans might search for regulations they consider job killing, innovation stifling, and a threat to national security.

           I cannot understand how FCC Commissioners, of either party, can come up with a rationale for more or less regulation based on mere conjecture, not science, statistics, and facts.

           Republicans and their sponsored researchers spoke with absolute certainty that network neutrality regulation reduces infrastructure spending by wireless carriers.  These Commissioners ignored whether the carriers had to invest in next generation plant, or having previously done so, they could reduce capital expenditures for a while. If network neutrality had such a stifling effect on plant investment, what evidence shows a significant increase in capex now that network neutrality rules have evaporated?

           Democrats and their sponsored researchers also speak with absolute certainty about the benefits of network neutrality rules. I think they overreached with some unnecessary safeguards that could harm broadband subscribers rather than protect them from unlawful carrier behavior.  I consider some types of so-called paid prioritization potentially desirable and beneficial to some consumers without constituting unlawful discrimination. 

           Might some video streaming subscribers want “better than best efforts” routing of mission critical bits?  How about access to video content at the highest bit rate a carrier can deliver instead of an industrywide (collusive?) decision to throttle wireless video streams to “CD quality”? If carriers can lawfully package service tiers on bitrate and data volume, why would any FCC administration permit deliberate service degradation?

          Bottom line: overreach occurs everywhere often with readily identifiable harms.

Who Needs Humility When you have a 6-3 Advantage?

           Yet again, the Supreme Court conservative majority overreaches in a decision that probably harms their benefactors who think disqualifying regulatory agency expertise will save them billions.  In Loper Bright Enterprises Et Al. V. Raimondo, https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf the Court majority reversed a 1984 precedent (Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984); https://supreme.justia.com/cases/federal/us/467/837/) that requires judicial deference to reasonable expert regulatory agency interpretation of ambiguous statutes.

           Judges surely have the jurisprudential skills to know when a law is ambiguous and when a regulatory agency acts arbitrarily, ignores evidence, exceeds statutory authority, misreads laws, etc.  But these same judges surely have no basis to substitute their inexpert assessment of technology and science.  From now on, courts can second guess just about anything a regulatory agency does that lacks a specific statutory mandate.

           The corporate underwriters of litigation usually accrue triple digit returns on their investments in lawyers and lobbyists who peck away at costly regulatory compliance duties.  Not in this case. The winning litigants think they have persuaded the Court to “rightsize” the deep, regulatory state.  In reality, they have funded a new legal foundation empowering non-expert judges to shut down even reasonable statutory interpretation by regulatory agencies who regularly have to confront and resolve new cases, controversies, conflicts, public interest challenges, etc.

           Fast evolving technologies and market conditions usually result in regulatory lag that might benefit some corporations from incurring higher costs once the rules change.  But a lag, and now a prohibition, can just a easily cost corporations billions in terms of uncertainty, higher risk, more conflicts and disputes, etc.

           I cannot understand how corporate litigation managers think that foreclosing regulatory agency assessment and response to changed circumstances will save them money.  And yes, this litigation is all about money even as it is framed as belated and proper realignment of the relative powers in the three branches of government.

           Let’s consider what the Federal Communications Commission will not be able to do unless and until Congress amends or enacts new legislation to specify what must be done to regulate a new technology, resolve an emerging case or controversy, right a wrong not previously defined, etc.

           The Communications Act of 1934, https://transition.fcc.gov/Reports/1934new.pdf  specifies the FCC’s clear statutory authority. For example, Congress explicitly mandated FCC regulatory oversight of “wire and radio”: “For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges . . ..” 47 U.S.C. §151; https://www.law.cornell.edu/uscode/text/47/151.

           It appears that the new Loper Bright Enterprises standard would permit a judge to question whether and how the FCC can regulate anything that does not fit within the meaning of wire and radio when Congress used these terms in 1934.  Bear in mind that Congress often does not define all of the terms it uses in a law, nor does it get around to updating a law to reflect changed circumstances. 

           Apparently, both the FCC and reviewing courts must interpret and apply the meaning of wire as originally used in the organic law creating the FCC, unless and until Congress provides a new definition.

           Does a 2024 judicial interpretation of wire limit its meaning to a copper medium for conducting signals used in communications? If so, do subsequent media used for signal transmission, but not comprised of metal, fit within the definition of wire?  What about fiber optic lines?  They transmit signals, of a sort, but no one considers them a type of wire. They are made of glass, not metal!

           Fiber optic lines might fit within the definition of cable, but is a cable a reasonable functional equivalent of wire?  If so, why didn’t Congress specify both wire and cable? Better yet, why didn’t Congress update the Communications Act of 1934 to recognize FCC jurisdiction over fiber optic lines as a new functional equivalent to metal wires?

           In other words, how can an expert regulatory agency comply with its statutory mandates, if it cannot expand or compress its oversight based on newly occurring circumstance?  Just now, I am researching the growing risk of collisions of satellites and space stations with space debris.  The possibility exists for the Loper Bright Enterprises standard to invalidate any FCC effort to establish space debris mitigation requirements by regulated satellite operators. There certainly is nothing in the Communications Act that specifies satellite carrier affirmative duties to mitigate space debris.

           The FCC probably no longer can fine a carrier for noncompliance of mitigation requirements as it recently did when Dish Network failed to remove from orbit a direct broadcast satellite reaching end of life.  DISH Operating L.L.C., Order, DA 23-888 (Oct. 2, 2023); https://docs.fcc.gov/public/attachments/DA-23-888A1.docx.

           Bottom line: Even a serious-minded Congress, emphasizing law over theatrics, cannot “future proof” a law to respond to all changed circumstances.  The Supreme Court conservative majority now expects Congress to correct all ambiguities and deficiencies in existing laws. 

           Good luck with that America.