Chairwoman Rosenworcel's Response to Members of Congress Regarding the Supreme Court’s Decision on Loper Bright Enterprises v. Raimondo

On July 18, 2024, Members of the House of Representatives wrote to Federal Communications Commission Chairwoman Jessica Rosenworcel to call her attention to Loper Bright Enterprises v. Raimondo, a recent Supreme Court decision that precludes courts from deferring to agency interpretations when the statutes are ambiguous. [See a similar letter from the Senate's Post-Chevron Working Group.] In its decision, the Court explicitly overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council (1984), which required deference to agency interpretations of ambiguous statutes. By allowing such deference, the Court in Chevron enabled the “Administrative State” to usurp the legislative authority that the Constitution grants exclusively to Congress in Article I. The Chevron decision led to broader, more costly, and more invasive agency regulation of Americans’ lives, liberty, and property. House Commerce Committee Chair Cathy McMorris Rodgers (R-WA) and House Oversight Committee Chairman James Comer (R-KY) requested:

1. Please provide the following regarding legislative rules proposed or promulgated since January 20, 2021, identifying in each relevant listing the rule or rulemaking and agency statutory interpretation concerned:

• A list of all pending judicial challenges to final agency rules that may be impacted by the Court’s Loper Bright decision.
• A list of all final agency rules not yet challenged in court that may be impacted by the Court’s Loper Bright decision if they are so challenged.
• A list of all pending rulemakings in which the Commission is relying on an interpretation of statutory authority that might have depended upon Chevron deference prior to the Court’s decision in Loper Bright.

2. Please provide the following regarding adjudications initiated or completed since January 20, 2021, identifying in each relevant listing the adjudication and statutory interpretation concerned:

• A list of all pending judicial challenges to final agency adjudications that may be impacted by the Court’s Loper Bright decision.
• A list of all final agency adjudications not yet challenged in court that may be impacted by the Court’s Loper Bright decision if they are so challenged.
• A list of all pending adjudications in which the Commission is relying on an interpretation of statutory authority that might have depended upon Chevron deference prior to the Court’s decision in Loper Bright.

3. Please provide the following regarding enforcement actions brought by the Commission in court since January 20, 2021, identifying in each relevant listing the agency statutory interpretation sought to be enforced:

• A list of all pending enforcement actions in which the agency is relying on a Commission interpretation of statutory authority that might have depended upon Chevron deference prior to the Court’s decision in Loper Bright.
• A list of all concluded enforcement actions in which the court deferred under Chevron to a Commission interpretation of statutory authority as a basis for its judgment against a nonagency party.

Please provide a list of all proposed or final agency guidance documents or other documents of the agency containing interpretive rules issued since January 20, 2021, identifying in each the statutory authority the rule interprets and the Commission’s statutory interpretation set forth in the rule for rules likely to lead to:

• An annual effect on the economy of $100,000,000 or more;
• A major increase in costs or prices for consumers, individual industries, Federal, State, local, or Tribal government agencies, or geographic regions; or
• Significant adverse effects on competition, employment, investment, productivity, innovation, public health and safety, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

Please provide a list of all judicial decisions in cases to which the Commission has been a party that were not ultimately overturned by a higher court in which the court relied upon Chevron to yield to the Commission’s interpretation of a statute. Please identify in each listing the statutory authority the Commission interpreted and the statutory interpretation upheld.

On July 31, Chairwoman Rosenworcel replied to Chairs McMorris Rodgers and Comer saying that the FCC initiates and conducts rulemaking proceedings pursuant to authority granted to the agency by the Communications Act of 1934, other relevant statutory authorities, and under the requirements of the Administrative Procedure Act. The Communications Act generally assigns the Commission broad statutory authority for “the purpose of regulating all interstate and foreign communications by wire or radio and all interstate and foreign transmission of energy by radio.”  The agency implements this statutory authority through legislative rules under the “notice and comment” provisions of the Administrative Procedure Act.