Commentators Point to Loper Bright in Coming Fight Over FCC, FTC  

Several commentators have noted the potential relevance of the Supreme Court’s consequential decision in Loper Bright Enterprises v. Raimondo to coming fights over the authority of the Federal Communications Commission and Federal Trade Commission.  

Ed Whelan in National Review recently suggested the FCC’s attempts to “thwart[] judicial review of the legality of . . . license transfers,” which will soon be considered by the D.C. Circuit, could test Loper Bright’s “promise” of “a new era of bureaucratic accountability.” 

Federal law forbids any company from owning commercial television broadcast stations that together have more than a 39% national audience reach.  The proposed merger of Nexstar Media and TEGNA—the largest broadcast merger in history—would result in a company that far exceeds that threshold.  Instead of reviewing the proposed transfer of TEGNA’s broadcast licenses to Nexstar, the Federal Communications Commission delegated (or purported to delegate) the review to its Media Bureau.  The Media Bureau concluded (on dubious grounds) that it had authority to waive the 39% cap and on March 19 approved the transfer of the broadcast licenses.  Nexstar and TEGNA treated that Media Bureau determination as a green light to consummate the merger and have already taken steps that they have told courts are irreversible. 

Competitors immediately sought the FCC’s review of the Media Bureau’s order.  But the FCC has failed to take any action in the many weeks since then, and at the same time it has maintained that competitors can’t obtain judicial review of the Media Bureau’s order.  So the FCC is enabling the merger to proceed while effectively thwarting judicial review of the legality of the license transfers. 

Bloggers at “Protect the 1st” have outlined how Loper Bright could also play a role in checking the FCC and FTC’s efforts to implement “‘public interest’ regulation” that “includes the power to intimate, pressure, and discipline disfavored speech.” 

The FCC has no lawful authority to police “bias,” ideological tone, or political content.  The First Amendment does not empower bureaucrats to decide whether broadcasters are too liberal, too conservative, too vulgar, too partisan, or too offensive.  Indeed, the whole point of the First Amendment is to deny government officials that authority.   

And yet the FCC increasingly behaves as though broadcast licenses are contingent on political obedience. 

The FTC under Chairman Andrew Ferguson has been moving in a similarly dangerous direction.  As we previously reported, the FTC is attempting to weaponize consumer-protection laws against news organizations and media-rating firms whose viewpoints or editorial decisions offend those in power.  The FTC’s theory appears to be that editorial judgments can somehow become “deceptive practices” subject to federal oversight. 

That is exactly the kind of expansion of agency authority – with no statutory justification – that Loper Bright sought to restrict. 

The piece ends by suggesting “courts can use the standards of Loper Bright to stop the creation of a permanent administrative state increasingly detached from constitutional limits.” 

Ryan P. Mulvey is Senior Policy Counsel at Americans for Prosperity Foundation.