On Friday, TechFreedom filed comments for the Federal Communications Commission’s (FCC) Public Notice seeking public input on identifying rules for the purpose of alleviating unnecessary regulatory burdens—also known as the “Delete, Delete, Delete” Docket. This proceeding represents the best chance in a generation to realign FCC regulations with the text of the Communications Act and with congressional intent. But rushing the process could frustrate beneficial deregulation, tying up the FCC in court for years or more.

“Rushing may actually frustrate regulatory reform,” said Berin Szóka, President of TechFreedom. “The Administrative Procedure Act (APA) generally requires notice and comment rulemaking before agencies make, change, or repeal substantive rules. This may be inconvenient, and time-consuming, but it ensures that affected parties receive due process, and especially that the Commission hears from those who have relied on existing regulations before changing them. This process also protects the Commission from making mistakes and will help it defend its actions in court when challenged. While the APA allows agencies to skip notice-and-comment rulemaking for ‘good cause’, courts have properly interpreted this exception narrowly and so should the FCC. The same goes for changing or repealing procedural rules and policy statements: just because the APA allows the FCC to skip notice and comment rulemaking doesn’t mean it’s a good idea to do so.”

“Loper Bright makes notice-and-comment rulemaking even more indispensable,” Szóka continued. “No longer will courts defer to administrative agencies under Chevron. Instead, courts will scrutinize agency interpretations of statutes under Skidmore: whether the FCC prevails in repealing, or modifying, regulations will depend, in part, on the ‘thoroughness evident in its consideration.’ Bypassing public comment can only hurt the FCC in court. That’s especially true if President Donald Trump does to the FCC what he just did to the Federal Trade Commission: firing the Democratic Commissioners. He may have a constitutional right to do so, but removing dissenting voices at these agencies will weaken the quality of their decision-making and make it harder for them to win under Skidmore.”

“The FCC should follow the model FCC Chair Mark Fowler set in the early 1980s,” Szóka concluded. “The FCC will face an avalanche of rulemaking requests. The agency should prioritize older and outdated policies for decision first, especially those that overlap with other agencies, and where those agencies have more expertise. Next, the FCC should identify existing policy statements which are within its regulatory purview, but which are outdated or can be demonstrated to best be left to market forces. After that, the Commission should look to codified regulations that are based on broad—some would argue vague—statutory language. Finally, and with great caution, the FCC might consider new regulations or interpretations in areas where it has previously not attempted to regulate.”

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Find these comments and release on our website, and share them on Twitter, Bluesky, and LinkedIn. We can be reached for comment at media@techfreedom.org. Read our related work, including:

About TechFreedom:

TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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