Pai's Rollback of Wheeler Actions Seen Legal, Prelude to Selective Enforcement

Whether someone can challenge non-enforcement of rules "is going to be a big question for people who oppose deregulation by the Trump administration," said American University professor of practice-administrative law Jeffrey Lubbers. Commissioner Mignon Clyburn raised questions about whether the Pai actions violated the APA. Attorneys said such challenges are unlikely to succeed, or even occur. The FCC didn't comment.

Agencies' policy statements are exempt from APA notice and public comment rules, but the issue of explaining actions is more murky, Lubbers said. He said the Supreme Court's Heckler v. Chaney made clear an agency's decision whether to enforce a statute is generally within its discretion and not reviewable by a court, but FCC v. Fox TV Stations said if there's a change in policy, an agency must explain why.

But a decision not to take action is "a little harder to challenge," Lubbers said. As long as such a decision is not being done in a completely arbitrary way, it likely would be allowable, he said, saying getting standing to bring a challenge could be a sizable hurdle.

For regulatory advocates, "this is a real shortcoming" of the APA, said Sidney Shapiro, a Wake Forest University administrative law expert. The Supreme Court has recognized beneficiaries of regulation should get a voice in regulation creation and the right to sue to challenge regulations, but "the court has not seen fit to carry that over to the same full extent to the area of enforcement," he said.

Delegated Authority

Many of the items undone by Pai date from the last days of Chairman Tom Wheeler's administration and were done under delegated authority. Rules Section 1.13 regarding review and appeal of FCC orders come into play a lot during transitions from one party's control of the agency to another's, with outgoing chairmen often doing a lot of things on delegated authority and the incoming one having 30 days to tell the bureaus to pull them back, said a trade group regulatory counsel. Given that 30-day window, "It's not something I'd expect to see very often in the future," Public Knowledge Senior Staff Attorney John Bergmayer said. "Why would Pai have bureaus undo their own work going forward?"

Bergmayer said he took Clyburn's comment as perhaps claiming the actions without explanation "violate the spirit of the APA at least." One possible route to challenging an agency's inaction could be using the footnote language in Heckler to argue a given decision not to enforce is so extreme that it constitutes an abrogation, Lubbers said. He said it's also possible challengers of the lack of action could petition the FCC and then challenge the agency in court when it declined to act.

Typically, when agencies opt not to take action on a petition, they point to having other, higher priorities or say the case isn't consistent with its current approach to policy, Shapiro said. But a court might question that lack of resources if an agency isn't doing any enforcement, he said: "You're probably not going to be successful just getting out of the enforcement business."

History indicates there likely won't be substantial litigation challenging agencies under the Trump administration for not enforcing rules, Shapiro said. "This kind of drift toward lack of enforcement went largely without too much pushback" during the George W. Bush administration, he said.

For many of the items rolled back last week, a challenge based on the APA likely wouldn't work because the commission will soon revisit the matters, numerous attorneys said. “By the time the courts will have gone through the process” of deciding on whether sufficient reason was given for the rule reversals, the full FCC will have offered up new, fully fleshed out decisions on them, said Pillsbury Winthrop broadcast lawyer Scott Flick. Since many of the items were bureau-level decisions, they would have to be ruled on by the full commission before a court appeal could proceed, attorneys said. The many items rolled back last week were so diverse it's difficult to broadly say an APA challenge would work against all of them, said Georgetown Law Institute for Public Representation co-Director Angela Campbell. The items need to be considered individually, she said.

Media Items

The reversed political file admonishments the Media Bureau issued against several broadcasters will likely be taken up again by the full commission, said Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman. He represents public interest and transparency groups that petitioned the FCC to have the violators punished.

FCC rules allow the bureaus to set aside their own rulings within 30 days of a decision, which would make an APA challenge to the reversal difficult, Schwartzman said. Since the admonishments that were issued against the broadcasters under the previous administration were set aside, Schwartzman expects the full commission to take the matter up and likely issue similar admonishments, he said. “There are indications that [Chairman Pai's] problem is with how they did it, not that they did it at all,” said Schwartzman of the Media Bureau. In a statement issued when the bureau issued the admonishments, Pai said he supported most of what the bureau did, but not that the admonishments were issued on delegated authority.

A full commission ruling on the petition for reconsideration by noncommercial educational stations of new FCC registration number rules is also expected, said Todd Gray of Gray Miller Persh, who represents the stations. The Media Bureau denied the recon order despite its being appealed to the full commission. With that ruling set aside, the stations are waiting for the full commission to vote on the recon order. With that decision pending, an APA challenge is unlikely, Gray said. The NCE appeal also faced no opposition from any party but the Media Bureau, so such a challenge at this point would be a surprise, he said. “No one is opposed to this,” he said of the NCE stations' position.

An APA challenge to the Media Bureau's rolling back its guidance on deals featuring channel sharing and contingent financial arrangements would be extra difficult because the item didn't even rise to the level of new rules, Flick said. The guidelines were issued in a 2014 public notice advising how the Media Bureau would interpret existing rules going forward. A court is unlikely to rule the bureau can't reverse that interpretation under new leadership, Free Press Policy Director Matt Wood said. Free Press supported the policy guidance and tougher rules for sharing arrangements.