Tag Archives: Delete

The Accelerating Rate of Deregulation

We’re less than eight months into the new administration, and when considering that short amount of time, there has been an unprecedented amount of deregulation coming out of the federal government related to broadband and telecom issues. Regulatory changes aren’t just coming from the FCC, but also from the White House, NTIA, Congress, and other agencies like the FTC.

The trend to deregulate under a Republican administration is not a surprise. For example, we heard a lot of deregulation rhetoric when FCC Chairman Ajit Pai took over the FCC. His FCC tackled deregulation, but at a much slower pace than the current administration. Brendan Carr hit the ground running in this new administration when he was named as Chairman soon after the inauguration.

Following is a list I made of deregulatory changes I can recall that have happened this year, and I’m sure I’ve missed a few.

  • Chairman Carr came in with the intentions of killing Title II regulation of broadband and net neutrality, but was spared the effort when, in early January, the U.S Court of Appeals for the 6th Circuit struck down the regulations that had been adopted by the previous FCC.
  • The FCC’s signature deregulatory thrust has been labeled as Delete, Delete, Delete, which is a streamlined way to eliminate obsolete regulations. In practice, it appears that the FCC has decided to take shortcuts and has shortened the timeline or totally eliminated the ability for public comments before regulations are eliminated.
  • The FCC canceled rules that allowed the Universal Fund to pay for WiFi on school buses. The FCC is currently killing rules that would allow the USF to fund hotspots for lending in libraries.
  • The FCC made it easier for telcos to retire copper by putting a 2-year moratorium on public notices of upcoming copper retirements. The FCC is now working to make the temporary rules permanent.
  • In perhaps the biggest change, the White House ordered NTIA to cease the implementation of the $2.75 billion Digital Equity Act that was to be used for teaching people how to use computers, making sure every household had a computer or tablet, and promoting subscription to home broadband.
  • NTIA weakened the $42.5 billion BEAD grant program. The agency:
    • Watered down the assumed preference for fiber and tried to give more funding to alternative technologies like satellite.
    • Eliminated the mandate that anybody building a BEAD network had to have at least one broadband product that would be affordable for low-income households.
    • Weakened labor requirements and got rid of the preference for prevailing and union wages.
    • Perhaps the biggest long-term impact of the BEAD changes is that NTIA has seemingly defined satellite broadband as a legitimate broadband option for homes, meaning most homes can now be said to have a broadband option.
    • It looks like all of these changes might mean a $10-$20 billion reduction from the expected $42.5 billion program.
  • The FCC stopped the implementation of lower rates for telephone and video calls in jails and prisons.
  • The Federal Trade Commission halted the implementation of Click to Cancel, which would have mandated that any company that lets a customer subscribe online must make it just as easy to cancel service online.
  • While not specifically deregulation, the FCC has ignored its own timeline for kicking off the 5G for Rural America Fund, which is supposed to bring a lot more cell towers to rural America.
  • Courts continue to weaken the FCC’s authority. Several rulings in 2024 weakened the FCC. For example, Loper Bright Enterprises v. Raimondo overturned the Chevron Doctrine, which brings into question the ability of the FCC to enact laws that were not specifically mandated by Congress. This year, McLaughlin Chiropractic v. McKesson Corp gave District Courts more leeway to disagree with rulings made by federal agencies like the FCC.

To be fair, there are some new regulations to go along with the deregulation effort:

  • The FCC adopted some new regulations for poles related mostly to how pole owners must react to large orders for getting onto poles.
  • Congress reinstituted the spectrum auction for the FCC. However, that new law may reclaim some WiFi and CBRS spectrum for auction, which is key for rural and home broadband.
  • Tariffs on most imported goods have increased the cost of building broadband networks, particularly for electronics.
  • The FCC is suddenly opining on the content on network television and has threatened the broadcast licenses of the large broadcasters.

I couldn’t decide how to categorize the recent issue where the FCC said it was going to examine and try to kill any state regulation of AI. Should that be categorized as more deregulation, or an increase in federal regulation?

This is a huge number of changes for only an eight-month period, and I have to wonder how far the deregulation effort will go over the next few years.

Eliminating FCC Regulations

I’m sure nobody is surprised that businesses regulated by the FCC responded with long lists of regulations that should be eliminated after the FCC invited them to do so in the Delete, Delete, Delete proceeding. Seemingly every trade association has an existing list of hated regulations, and the FCC heard from telcos, cable companies, cellular carriers, programmers, satellite companies, and even more obscure parts of the industry like prison phone providers and robocallers.

Some of the requests were fully anticipated and had been mentioned in the Delete, Delete, Delete docket. For example, AT&T and Verizon asked the FCC to eliminate most of the rules related to maintaining or reporting on copper telephone networks. The companies are tearing down those networks and would like to finish the task without paperwork or having to notify the public.

The purpose of the Delete, Delete, Delete docket is to eliminate rules that are antiquated and no longer needed. Trade groups took this as an opportunity to ask the FCC to eliminate regulations across the board, including regulatory rules that were explicitly ordered by Congress or rules recently adopted by the FCC. For example, there were multiple requests from ISPs to eliminate broadband labels, which just went into effect last year. Prison phone companies asked to overturn a recent FCC order that reduced prison calling rates. Verizon asked the FCC to reverse a recent decision that requires it to unlock phones so that customers can more easily change carriers. AT&T asked the FCC to eliminate its authority to issue fines after the company was recently fined.

One of the more interesting requests came from debt collection agencies and those who represent robocallers. They want to get rid of the rules that let the public easily opt out of receiving robocalls or texts. This doesn’t seem likely since the FCC is still actively working to eliminate junk and spam calls.

It is going to be very interesting to see what the FCC does with the huge pile of requests they received. I don’t know if anybody has added up the industry requests, but it wouldn’t be surprising if there are 10,000 specific regulations somebody wants to kill. The normal process in the past to add or delete regulations has been to issue a list of the specific changes being considered to get industry feedback. I assume that FCC staff will have to somehow wade through the huge list of requests to find those that meet the spirit of Delete, Delete, Delete. A lot of what is being suggested by the various industries are changes to active regulations that are not obsolete.

This is going to be a test of how activist the new FCC is going to be. If the Commission sticks to the stated purpose of eliminating unneeded regulations, this docket will not likely cause a ripple in the industry. I think everybody agrees that federal regulators should periodically eliminate outdated regulations.

However, the FCC could use this docket as a short-cut way to eliminate piles of active regulations. If that happens, it seems likely we’ll see scads of lawsuits challenging the FCC for not following the prescribed process for making regulatory changes. Interestingly, some recent court orders question the authority of regulatory agencies like the FCC to add new regulations that were not directly by Congress, and it seems to me that this same concept would apply to eliminating regulations.

Eliminating Regulations

The FCC, under Chairman Brendan Carr, has issued a Public Notice asking for public input on eliminating regulations that create unneeded burdens or that stand in the way of the deployment, expansion, competition, or technological innovation.  The Notice is titled: ‘In Re: Delete, Delete, Delete.’

The Public Notice asks for comments of various types:

  • Cost-benefit Considerations. The FCC invites the public to comment on regulations where the cost of compliance is more than can be justified by the benefits. They ask commenters to take a stab at documenting the cost/benefit of proposed rule changes.
  • Experience Based on Implementation. This asks if some rules are too complex based on the experience of companies that must comply. Are there rules that are routinely waived because of the complexity?
  • Marketplace and Technological Changes. Have marketplace changes or new technologies made some rules obsolete?
  • Barriers to Entry. Are there regulations that act as a barrier to entry of new companies? (I must note that many such regulations are on the books at the request of monopoly providers).
  • A Broader Regulatory Context. Are there rules that are now obsolete due to later regulations that supplanted them?
  • Consideration of Court Decisions. This asks if there are regulations that might be considered in light of Supreme Court rules like Roper Bright that says that regulatory agencies shouldn’t undertake any major regulation that hasn’t been explicitly directed by Congress?

I have no doubt that every large company and lobbyist will trot out their wish list of regulations they would love to see eliminated. I have little doubt that there is somebody who dislikes every regulation on the FCC books. But there are a lot of obsolete regulations. For example, it’s ridiculous in today’s environment for the FCC to have rules about video channel lineups. There are a ton of rules on the books for technologies that are no longer in use.

It’s worth noting that the FCC already routinely ignores obsolete regulations, as do all regulatory agencies. While it’s cleaner to get old regulations off the books, it’s nearly as effective to not consider or enforce old rules that no longer apply.

The FCC also has to consider the source of various regulations. The agency does not have the authority, on it’s own, to eliminate a requirement imposed in the past by Congress. Eliminating such rules is fine as long as nobody objects, but doing so also opens the agency to lawsuits, which would be a colossal waste of time.

It’s a good idea for any regulatory agency to do this periodically as long as this is done well. This will hopefully not become an excuse to let large ISPs, wireless companies, TV and radio station owners, and others walk away from needed regulation.

What is most interesting about this effort is that Chairman Carr came into the position with a fairly long list of new regulations he’d like to see the FCC tackle. At the top of his list is a new look at the FCC’s role in regulating Section 230 related to web content.