Earlier this year, FCC Chairman Brendan Carr initiated a sweeping initiative to review “every rule, regulation, or guidance document” that could be eliminated “for the purposes of alleviating unnecessary regulatory burdens.” At its July Open Meeting, the Commission voted 2-1 to adopt a Direct Final Rule framework to enable it to act expeditiously in the In re: Delete, Delete, Delete proceeding to repeal certain legacy regulations that have become “outdated, obsolete, unlawful, anticompetitive, or otherwise no longer in the public interest.” The principal feature of the Direct Final Rule approach is to permit the elimination of rules without the notice and comment procedures typically required under the Administrative Procedure Act (APA). The FCC’s lone Democrat, Commissioner Anna Gomez, dissented, expressing concern that the Direct Final Rule process circumvents essential transparency and due process safeguards, sidestepping a mechanism for public involvement.
At the highest level, the APA establishes the framework by which federal agencies like the FCC propose, adopt, modify, and revoke regulations, thereby ensuring transparency and public participation in the process. In adopting the Direct Final Rule, the FCC explained that there is “good cause” under the APA to forgo this notice and comment process where it is “unnecessary,” such as where the administrative rules to be modified or eliminated are insignificant or inconsequential to the public. In its recent efforts, the FCC deleted 11 rule provisions comprising 39 regulatory “burdens” it said related to obsolete technology, outdated marketplace conditions, expired deadlines, or repealed legal obligations, and which therefore no longer serve the public interest.