Supreme Court Cripples FCC Further, Making Robocall Enforcement Likely Impossible

Legal Issues

from the this-is-why-we-can't-have-nice-things dept

Whether by dodgy Supreme Court ruling, executive order, mindless DOGE cuts, or captured regulators, the U.S. right wing, usually in lockstep with consolidated corporate power, are making massive, historic, and potentially irreversible inroads in destroying all federal corporate oversight, labor protections, public safety provisions, environmental standards, and regulatory autonomy.

I bolded that last bit because it’s not clear the U.S. press and a huge swath of the electorate (or even many people in policy circles) have figured this out yet.

A cornerstone of this effort has been the Supreme Court. Last year’s Loper Bright ruling effectively gutted any remaining independence of expert regulators, ensuring they literally can’t do much of anything without the explicit approval of a Congress too corrupt to function (and sometimes, not even then). If they do try, they’re all but guaranteed to be drowned in legal fights with deep-pocketed corporations for years.

You can easily see the immediate impact at agencies like the FCC. From net neutrality to privacy, the regulatory agency literally can’t accomplish any efforts to protect markets or consumers without being bogged down in endless legal quagmire, quite by design.

When the agency does shake off regulatory capture and actually try to act, Trump-stocked courts quickly kill the effort (see the 5th Circuit recently vacating an AT&T fine for repeatedly lying to customers about spying on their location data). Even basic, historically bipartisan and noncontroversial efforts to do things like help school kids get online are being destroyed by authoritarian Trump zealots.

Last week it got worse, with a new Supreme Court ruling that quietly crippled regulatory independence further, ensuring agencies like the FCC are even less able to do basic aspects of their jobs. The case, McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., started more than a decade ago after McKesson sent unsolicited ads by fax to class members of the suit, including McLaughlin Chiropractic.

Class action plaintiffs in the case argued that the unsolicited faxes were in violation of the Telephone Consumer Protection Act (TCPA), which bans unsolicited communications with consumers without giving them a chance to opt out of the communications. 

While the case was stumbling through our already broken court system, the FCC (under the leadership of now cable industry lobbyist Michael Powell) issued a ruling excluding online fax services from the TCPA. It was part of a steady erosion of our already flimsy consumer protections, and part of the reason the FCC already fails utterly to keep robocallers from annoying the shit out of you.

Consumer rights experts have long pointed out that shitheads and scammers have hijacked U.S. voice networks thanks to steady, generational lobbying by debt collectors and the marketing industry, who’ve ensured that oversight no longer functions. Still, every so often, the FCC would at least try to do something about the problem within the ever-shrinking confines of their legal authority.

The McLaughlin case found its way to the Supreme Court because the District Court found that it was required to follow the new FCC order, though it disagreed with the FCC’s interpretation of the TCPA. The District Court also felt constrained by the Hobbs Act, 1950s era legislation long interpreted as barring district courts from meddling with and undermining a federal agency’s interpretation of a statute.

On June 20th, the Supreme Court sided with the District Court by a 6-3 vote. The Supreme Court ruled that “The Hobbs Act does not preclude district courts from independently assessing whether an agency’s interpretation of the relevant statute is correct.”

This is, superficially, so fucking boring I probably lost most readers paragraphs ago. But it’s important and the majority’s convoluted legalese hides a much seedier agenda. Broadband industry consultant Doug Dawson put it this way in his excellent breakdown of what this will ultimately mean for the FCC:

“This is a significant ruling because it gives more explicit power to District Courts to disagree with an administrative ruling of a federal agency. It’s likely that there is a District Court somewhere in the country that will disagree with almost any federal agency ruling, meaning that it will be that much easier to tie up every decision made by the FCC or other federal agency in court.”

Bogging any and all government oversight of corporate power in endless legal hell is, of course, the entire point. But this effort has historically been dressed up by the right wing and “free market” Libertarian folks as some kind of noble rebalancing of constitutional power. The lie is that regulators were “running amok” (a joke if you’ve watched the FCC fail to do basic things), and this somehow “fixed” it.

The route the right wing is taking to effectively lobotomize corporate oversight is brutally efficient, but it’s also ironically so meandering, dull, and jam-packed with convoluted legalese, it barely gets covered by the press. In this case, only a handful of outlets bothered to mention the June 20th ruling.

But the real world harms of this entire movement will be kind of hard for the press and public to ignore. In the case of the FCC, it most assuredly means that the FCC will have even less authority to rein in shitty telecom monopolies. America’s already shitty robocall problem (a direct result of widespread corruption), will also absolutely be getting significantly worse:

“This new ruling also has practical implications since it explicitly weakens FCC enforcement of the TCPA. Among other things, the TCPA rules are the FCC’s primary tool for its effort to restrain the use of autodialers and artificial voices used in spam messages to consumers.”

You can see similar points made in the dissenting opinions. Great stuff! Very much the good faith, blue collar populism Trump is (ignorantly) lauded for.

The FCC’s inability to police scams and fraud is only a small part of the picture. More broadly, regulators that govern every sensitive aspect of your lives — from health insurance to undercooked car automation — are finding themselves literally incapable of standing up to corporate power in the United States. That’s going to have dramatic, often deadly impacts on every last aspect of your lives.

I genuinely don’t know what it takes to get the press and public to truly comprehend what’s happening. We’re going to see a steady parade of concussive, systemic failures to systems people to take for granted everywhere you look. All because rich corporate executives and their proxy “free market innovation” think tanks wanted to dress up unbridled greed as some sort of sophisticated, academic ethos.

The last year has been a brutal, generational win for unchecked corporate power. The check is coming due, and none of it’s going to be subtle.

Filed Under: consumers, corruption, fcc, loper bright, mclaughlin v mckesson, regulators, regulatory independence, robocalls, supreme court