With an incoming administration and a new FCC chair, priorities within the FCC are likely to shift. Increased focus on issues related to cybersecurity, the FCC’s ability to make and enforce policies, possible reform of the Universal Service Fund system (key word there is “possible”) and spectrum use and policy are likely to be at the top of the list.
One of the platforms on which the Trump ticket ran is the lessening of the regulatory burden on business. While we can argue about the semantics and merits of this approach, the fact remains that a lighter regulatory touch is likely, both because of the campaign promises, and the Loper Bright Supreme Court decision (a.k.a., the “Chevron doctrine”) which weakened the position of administrative agencies in favor of the courts. As such, I expect that the FCC and its counterpart the Federal Trade Commission (FTC), will be less powerful in addressing upcoming issues related to actions affecting consumers and more in favor of the large entities that have, as they see it, been impacted negatively by regulatory actions. Contrary to the those who argue that regulation stifles innovation, I believe the opposite—regulation often enables creativity and innovation as entities come up with creative ways to jump through regulatory hoops designed to protect our rights. But I digress.
The Loper Bright decision issued by the Supreme Court at the end of its 2024 term last Spring has also changed the landscape in ways that could significantly impact the role of the FCC, along with other federal agencies going forward. In Loper Bright Enterprises et al v. Raimondo, the Supreme Court abandoned a 40-year precedent requiring that, in the event of ambiguous or unclear statutory language promulgated by Congress, courts should no longer defer to the agencies where expertise resides for clarification and interpretation, but rather make those determinations themselves, with or without input from subject matter experts. This decision places an additional burden on those who are drafting legislation to draft it in such a way that the risk of ambiguity requiring court intervention is limited to the fullest extent possible. Given that technology evolves much more quickly than does legislation, this, to me, is an incredibly short-sighted decision. That is, based on the political bent of the judge making the decision, outcomes may not be made on sound practice and experience, but rather on political fiat cloaked as judicial determination.
In the new year (and this would likely have been the case regardless of the outcome of the presidential election), increased focus will be paid to issues related to privacy, cybersecurity and the increasing use of AI tools. First, it’s important to know that the European Union has intentionally—and powerfully—taken the lead in adopting strict and enforceable rules to manage AI deployment and use. Such regulations have focused on the types of information that can be retained and/or used by the entities that initially capture the information as well as those to whom it sells or otherwise shares it. Second, since the U.S. has only limited privacy regulations (federal regulations are industry based—think HIPAA, for example, and others, where they exist, are state-based and not federal), a national standard for enforcement simply does not exist.
Onto another hot topic—the status of the Universal Service Fund. Questions on its legality have been raised in a number of jurisdictions, with the Circuit Courts deciding differently on the fund’s validity. Given this conundrum, the Supreme Court has agreed to hear the case. Given the valuable services that are supported by the USF (schools and libraries, rural health care, service delivery in high-cost areas, among other worthy, but costly projects), it’s unlikely the fund will “go away,” although its form may be modified. Given that for Q1 of 2025, the contribution factor will be 36.3%, this significant source of revenue will attract additional scrutiny.
It is also likely that low orbiting satellites will be used more widely to deploy services to those in difficult-to-reach areas. The issue here is not just the cost of getting those satellites in orbit, but also providing the appropriate equipment and expertise to handle the signals and transmission on the ground. Early in December, the FCC announced that it has put filing requirements in place “for parties seeking to deploy Supplemental Coverage from Space (SCS),” establishing a new regulatory regime that enables satellite operators to work with wireless provider partners to provide broad coverage to hard-to-reach users. One of the key movers behind these efforts is SpaceX, which has also pushed for access to other spectrum bands as well as the use of lower orbit satellites to deliver additional services. Since there is only a set amount of spectrum to be divided among an ever-increasing number of users, such actions may serve to provide essential services to those who are the most difficult to serve.
Between the Supreme Court’s decision in Loper Bright and the presence of a new administration, priorities will shift. But the need for reliable communications, irrespective of underlying technologies, particularly as impacts public safety and security, remains essential.
With best wishes for a safe and happy holiday season and new year!
