New Administration Outlook: What's Next for the FCC After Trump's Executive Orders on Independent Agencies and Eliminating Regulations?

Asserting Executive Authority Over Independent Agencies: Assessing the Impact on the FCC

On February 18, President Trump issued an Executive Order entitled "Ensuring Accountability for All Agencies" (the "Accountability EO") that articulates the new administration's expansive view of executive power under Article II of the Constitution. The Accountability EO outlines a plan to extend President Trump's control over the entirety of the administrative state—including what the EO refers to as "so-called" independent agencies—despite statutory safeguards enacted by Congress under Article I to give those agencies a degree of independence from the President as they exercise both legislative powers delegated by Congress and perform quasi-judicial functions. DWT's financial services team has explained the bases and historical antecedents for an expansive view of the president's power. Today, we focus on the Federal Communications Commission ("FCC"), another of the independent agencies subject to the Accountability EO, and assess the early and expected future impact on the FCC's direction and practices—or lack of impact, as the case may be.

Would a Less Independent FCC Align More With President Trump?

The impact of more presidential control over independent agencies is lessened where the relevant agency's leadership is already well-aligned with the president's agenda. At the FCC, where three Commissioners are from the president's political party, it has been the case for many years that the agenda of the majority party led by the president's appointed chairman has closely aligned with the president.

This is illustrated by the back-and-forth exhibited by Republican and Democratic majorities on net neutrality, where the agency reversed itself multiple times on whether to categorize basic internet access services as a telecommunications service or an information service—as noted by Justice Gorsuch in his concurrence in Loper Bright Enterprises v. Raimondo and as discussed in this advisory.

The current FCC chairman, Brendan Carr, has been aligned with the Trump Administration from the outset, having authored the chapter on the FCC in Project 2025, which, as described below, suggests several avenues for changing the agency's focus and reducing regulation. Accordingly, for the time being, the independent FCC under Chairman Carr is likely to adhere to President Trump's agenda and priorities in practice, regardless of how much independence the Commissioners have in theory. However, an issue could arise during this second Trump Administration where one or more Republican-appointed Commissioners diverges from the president's views on a key issue. Presidents—including President Trump—have found themselves at odds with their own appointees before. And changes in technology could present novel issues where the Republican-appointed majority's views may differ from the president's. Should that situation arise, the degree of control the President wields over the agency's agenda—and whether he has the ability to remove Commissioners based on policy disagreements—may have serious practical consequences.

How might cases on presidents' (in)ability to fire independent agency officers apply to the FCC?

If Chairman Carr wished to assert FCC independence under the current state of the law, he could draw on Supreme Court precedent as support, starting with Humphrey's Executor v. United States, 295 U.S. 602 (1935). Humphrey's Executor held that President Franklin Roosevelt's removal of a Commissioner of the Federal Trade Commission, without cause, was unlawful, noting "the congressional intent to create a body of experts who shall gain experience by length of service; a body which shall be independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of the government."[1]

In Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020), the court narrowed, but did not overrule, Humphrey's Executor. There, the court reasoned that Article II vests the entire "executive Power" of the United States in the president alone, and that the president's power to remove those "that wield executive power on his behalf" flows from Article II's grant of authority to see that the laws "be faithfully executed."[2] The court recognized that the president's removal powers do not extend to a "multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power."[3] But the court found that CFPB did not meet that description, noting that although the CFPB was originally conceived as a "traditional independent agency, run by a multimember board with a 'diverse set of viewpoints and experiences'" (like the FTC of 1935), as created by Congress the CFPB instead had a single director who wielded significant executive power.[4] Based on these differences, the court held that Humphrey's Executor did not protect the CFPB director from removal.[5]

Arguably, Seila Law's characterization of the FTC, as it existed in 1935, describes the FCC, at least as it was originally created by the Communications Act of 1934. Like the FTC, the FCC is headed by five Commissioners appointed by the president and confirmed by the Senate, no more than three of which may be from the same party, resulting in a 3-2 split along party lines. Like FTC Commissioners, FCC Commissioners have expertise in the regulated areas and serve for a term that exceeds a single presidential term. If the president were to attempt to remove a Commissioner without cause, however, a key question for the courts under existing caselaw would be whether the FCC today can be said not to "exercise any executive power."[6] Depending on the courts' view of the FCC, and the way its powers are characterized as executive, quasi-legislative, and/or quasi-judicial, its Commissioners could be protected from removal without cause—or not. The issue may eventually reach the Supreme Court, which could further narrow or overrule Humphrey's Executor. But the issue is unlikely to arise due to Chairman Carr's tenure, as we expect that he will stay true to the President's agenda.

Revisiting and Reducing Regulations at the FCC

How will President Trump's order that agencies reconsider regulations affect the FCC?

A second executive order, titled "Ensuring Lawful Governance and Implementing the President's 'Department of Government Efficiency' Deregulatory Initiative," issued on February 19, 2025 (the "Deregulatory EO"), mandates that independent agencies, including the FCC, conduct a comprehensive review of their existing regulations to identify regulations that meet one or more of the following criteria:

1. unconstitutional regulations and regulations that raise serious constitutional difficulties, such as exceeding the scope of the power vested in the Federal Government by the Constitution;
2. regulations that are based on unlawful delegations of legislative power;
3. regulations that are based on anything other than the best reading of the underlying statutory authority or prohibition;
4. regulations that implicate matters of social, political, or economic significance that are not authorized by clear statutory authority;
5. regulations that impose significant costs upon private parties that are not outweighed by public benefits;
6. regulations that harm the national interest by significantly and unjustifiably impeding technological innovation, infrastructure development, disaster response, inflation reduction, research and development, economic development, energy production, land use, and foreign policy objectives; and
7. regulations that impose undue burdens on small business and impede private enterprise and entrepreneurship.

Within 60 days of the Deregulatory EO, based on these criteria, agency heads must submit a "list of all regulations identified" to the Office of Information and Regulatory Affairs (OIRA) to "develop a Unified Regulatory Agenda that seeks to rescind or modify these regulations, as appropriate." The FCC, as an affected agency, must comply with these directives.

Potential FCC Impact based on Commissioner Carr's Statements

How might this play out at the FCC? Chairman Carr's public statements indicate several potential areas under the FCC's authority that could be modified or rescinded altogether, with "a serious top-to-bottom review of its regulations," rescinding "any that are overly cumbersome or outdated."

Digital Platforms and Section 230

Chairman Carr's statements, specifically as laid out in Project 2025, suggest a focus on reining in digital platforms, which he refers to as "Big Tech." Chairman Carr emphasizes the need to address their dominant market positions that purportedly "threat[en] individual liberty." To that end, Chairman Carr views digital platforms as overprotected by Section 230 immunity set forth in the Communications Decency Act.[7] Section 230 extends important free speech protections by prohibiting the treatment of online service providers as publishers or speakers of content provided by others or holding providers liable for attempts to eliminate objectionable content on their platforms.[8] Courts have widely interpreted Section 230 to provide extremely broad immunity for acts taken by a website or other online provider in publishing content supplied by their users, including when the provider performs traditional editorial functions such as publishing content, taking it down, or editing it (such as shortening or clarifying). Online providers are only liable for content they create or to which they materially contribute.

In Project 2025, published in 2023 when there still was Chevron deference, Chairman Carr wrote that the FCC "should issue an order that interprets Section 230 to eliminate the expansive, non-textual immunities that courts have read into the statute" that have granted internet companies "carte blanche to censor protected speech while maintaining their Section 230 protections."[9] However, in Loper Bright Enterprises v. Raimondo the Court jettisoned Chevron deference and held that it is the exclusive role of the courts—and not any administrative agency—to interpret statutes. "Even when an ambiguity happens to implicate a technical matter, it does not follow that Congress has taken the power to authoritatively interpret the statute from the courts and given it to [an administrative] agency. Congress expects courts to handle technical statutory questions. . . ."[10] Nonetheless, Chairman Carr likely still has an interest in embracing a less protective interpretation of Section 230 as reflected by his recent appointment of Adam Candeub, a noted critic of Section 230's safe harbors, as FCC General Counsel.

"Pro-Growth Agenda"

Given Chairman Carr's general view of regulation as impeding market-driven innovation, it would be unsurprising if the FCC sought to scale back a significant number of regulations under his leadership. Chairman Carr has advocated for "unleashing economic prosperity" through what he describes as a "pro-growth agenda" emphasizing the need to free more spectrum for wireless services and streamline infrastructure rules, as well as "explore similar action for the deployment of other wired infrastructure by imposing limits on the fees that local and state governments can charge for reviewing those wireline applications and time restrictions on the government's decision-making process."[11] As part of this agenda, the FCC may well focus on modernizing permitting processes and facilitating coordination on spectrum issues to support next-generation connectivity and maintain U.S. leadership in 5G.

Potential Changes to the Enforcement Bureau

Chairman Carr has indicated a desire to limit the Enforcement Bureau's (EB) practices, emphasizing the need to avoid "overreach." For example, Chairman Carr has publicly opined that former Chairwoman Rosenworcel-led EB overreached twice—on a conditional approval of the purchase of a broadcast station and on a forfeiture against wireless carriers over safeguards for location data. Further, Chairman Carr believed that the EB's actions under former FCC Chairman Wheeler constituted overreach—including actions against M.C. Dean over Wi-Fi blocking, and against TerraCom and YourTel on protecting personal information.

Chairman Carr has also suggested that reforms to the EB are necessary and has underscored the importance of the EB "trimming its sails" and "hew[ing] more closely to the law" to forestall constitutional challenges to the agency's legitimacy and authority. Practically-speaking, this more measured approach should result in fewer enforcement actions—and significant cost-savings to those entities that are involved by protecting them from unreasonably large fines.

Digital Equity/Digital Divide

Chairman Carr criticized former President Biden's plan to expand the FCC's regulatory authority over internet services and infrastructure as an unprecedented expansion of government control, likening it to central planning rather than free market capitalism. He argued that the Biden Administration's plan would grant the FCC sweeping powers to "micromanage nearly every aspect of how the Internet functions," from infrastructure deployment to pricing and marketing strategies. The new chairman expressed the belief that such a "sweeping regulatory regime that President Biden asked the FCC to adopt" was "never contemplated" by Congress and thus exceeded its traditional scope of authority, which Chairman Carr sees it as incompatible with the principles of free market capitalism and which could stifle innovation and investment in providing faster and more widely available internet service. Fundamentally, Chairman Carr criticized the plan's reliance on an expansive theory of liability that could hold entities accountable for actions or omissions that result in disparate impacts, even in the absence of intentional discrimination. He may view that approach as in conflict with recent Supreme Court precedent and, therefore, be inclined to lead the FCC to abandon that approach.

That said, Chairman Carr has also urged the adoption of a national coordinating strategy for infrastructure deployment due to a lack of tracking and accountability leading to "headline levels" of waste, fraud, and abuse. "[T]he next Administration should ask the FCC to launch a review of its existing broadband programs, including the different components of the [Universal Service Fund], with the goal of avoiding duplication, improving efficiency of existing programs, and saving taxpayer money."[12]

Removal of Extraneous BEAD Program Requirements

Chairman Carr's call for an "important discussion" about the future of the Broadband Equity, Access, and Deployment (BEAD) program suggests a potential shift in focus under his leadership and the Executive Order. Chairman Carr has famously criticized BEAD for being mired in bureaucratic red tape and for prioritizing progressive policy objectives over the urgent need to expand broadband access. Chairman Carr has claimed that BEAD's "$42 billion program for expanding Internet infrastructure" has been blocked by "a thicket of red tape" and "progressive policy goals." For example, Chairman Carr has advocated for removing requirements that he considers extraneous, such as those related to Diversity, Equity, and Inclusion (DEI), climate change, price controls, and technology bias, to reduce inefficiencies and realign the program's objectives with the core mission of expanding broadband access. Overall, Chairman Carr's past statements suggest that the future of the BEAD program may involve a reevaluation of its priorities and a reduction in regulatory constraints, potentially leading to more effective and timely broadband expansion efforts. Although the precise mechanisms for achieving this remain unclear, Chairman Carr appears committed to programmatic changes that "quickly connect[] Americans." This could have significant implications for Internet Service Providers and other stakeholders involved in the deployment of broadband infrastructure, as well as for those consumers lacking high-speed broadband access.

Net Neutrality

Chairman Carr has spoken publicly about his high regard for the recent decision by the U.S. Court of Appeals for the 6th Circuit[13] invalidating so-called "net neutrality," the term used to describe administrative control of internet service by subjecting it to regulation under Title II of the Communications Act.[14] Chairman Carr viewed the 6th Circuit's decision as a victory for maintaining a regulatory framework that has historically supported the growth and innovation of the internet in the United States with limited FCC oversight. Given his prior dissents, Chairman Carr will likely continue to stave off any regulations akin to "net neutrality," oppose any further review of the 6th Circuit's decision, and focus instead on closing the digital divide by facilitating infrastructure and broadband service deployment.

Space Leadership

Under Chairman Carr's leadership, the FCC is embracing a new approach to satellite and space technologies, reflecting a commitment to maintaining U.S. leadership in these critical areas. Chairman Carr has been a vocal advocate for the deployment of low-earth orbit satellites, which promise to deliver high-speed internet access globally, connecting the over two billion people that still lack internet access. He also appears to have taken a nuanced stance on making BEAD funding available for low-earth orbit satellite Internet, within the program's constraints, which underscores his broader approach of tailoring regulation to encourage innovation and economic growth.

During his tenure, the FCC is expected to continue allocating spectrum for use by satellite and earth stations, in line with initiatives like the Launch Communications Act. Recent actions and proposals, such as revamping of the 2360-2395 MHz spectrum band for commercial space launches further highlight the agency's dedication to facilitating the space industry. For example, the FCC's recent Notice of Inquiry regarding possible reallocation of the C-Band shows that the agency is engaged in exploring new opportunities for connectivity and freeing up additional mid-band spectrum for new services, potentially enhancing both terrestrial and satellite-based operations. By these actions, the FCC is positioning itself to support economic growth, make more spectrum available to a variety of users, and advance U.S. security interests.

Conclusion

Our communications, technology, and privacy and security groups will be closely tracking any changes to FCC regulations arising from the Accountability EO and the Deregulation EO. Similarly, DWT's administrative law practitioners across a wide range of industry sectors will be monitoring developments from other agencies arising from President Trump's recent orders. Please feel free to reach out to DWT for potential assistance with regulatory compliance issues that may arise from these and other recent executive orders.