MIAMI — It was briefly mentioned during a symposium focused on the state of Hispanic-targeted broadcast media organizations that saw Democratic vote-makers at the Federal Trade Commission and Federal Communications Commission hold court with some of Spanish-language radio and television’s top leaders.
Otherwise, there’s been nary a word out of Washington regarding what some news organizations are calling a “power grab” by the White House. Talk of court challenges has already emerged Inside the Beltway. Nevertheless, President Trump has used “the authority vested in me as President by the Constitution and the laws of the United States of America” to issue an Executive Order “ensuring accountability for all agencies” — putting the FTC and FCC in the president’s crosshairs.
Late Tuesday, a presidential action quietly surfaced that could have a significant impact on every federal agency, which were created as independent organs free of direct executive branch influence. Until a decade ago, the FCC was largely that — an independent agency empowered under delegated authority to manage anything involving the nation’s airwaves. Then came the Wheeler Commission, under the Obama Administration, which decided to place broadband internet regulatory authority under Title II of the Communications Act, creating “net neutrality.”
This action created a ping-pong ball of regulatory divisiveness, with the first Trump Administration moving under Chairman Ajit Pai to undo the Wheeler Commission’s action. Then, under the Biden Administration, Chairwoman Jessica Rosenworcel made it a top priority to restore “net neutrality” as part of a broadband internet accessibility pledge from the Commission. With Brendan Carr now heading the FCC, “net neutrality” is again threatened.
Thus, one could argue that the politicization of the FCC began exactly a decade ago, in early February 2015. For the FTC, politicization was seen in the first weeks of Biden Administration as it selected the controversial Lina Khan to serve as Chairman.
That said, neither President Obama nor President Biden — or Trump in his first term — moved to do what the current president did late in the day on February 18.
The heads of independent regulatory agencies shall establish a position of White House Liaison in their respective agencies.
Furthermore, the Executive Order states that President and the Attorney General, subject to the president’s supervision and control, “shall provide authoritative interpretations of law for the executive branch.”
The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties. No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law, including but not limited to the issuance of regulations, guidance, and positions advanced in litigation, unless authorized to do so by the President or in writing by the Attorney General.
DECLARATION OF TRUE INDEPENDENCE
In the Executive Order, President Trump noted that previous administrations have allowed so-called “independent regulatory agencies” to operate with minimal presidential supervision. “These regulatory agencies currently exercise substantial executive authority without sufficient accountability to the President, and through him, to the American people. Moreover, these regulatory agencies have been permitted to promulgate significant regulations without review by the President.”
These practices, the president asserts, “undermine such regulatory agencies’ accountability to the American people and prevent a unified and coherent execution of Federal law. For the Federal Government to be truly accountable to the American people, officials who wield vast executive power must be supervised and controlled by the people’s elected President.”
That argument is likely being dissected by many across Washington, as organizations including the NAB and MVPD lobby ACA Connects have not released any public statements on the matter. No FCC Commissioner has commented as of yet, and at the Miami event on Wednesday afternoon both Anna Gómez and Alvaro Bedoya, representing the FCC and FTC, respectively, fleeting mention was made of the executive order.
What would transpire for them and their colleagues?
Trump writes in the Executive Order, “In order to improve the administration of the executive branch and to increase regulatory officials’ accountability to the American people, it shall be the policy of the executive branch to ensure Presidential supervision and control of the entire executive branch.”
Is this an abuse of the “separation of powers” guaranteed in the foundation of the United States? The Supreme Court and the judicial system may be the body to answer this question. And, the answer could be a muddy one, given the 2024 decisions in SEC vs. Jarkesy and the Loper Bright Enterprises vs. Raimondo decisions, which all but neutered the role of an agency Administrative Law Judge and the delegated authority of subject experts at such agencies, placing this power in the hands of the courts.
One key directive noted in the Trump Executive Order is that all executive departments and agencies, “including so-called independent agencies,” will submit for review “all proposed and final significant regulatory actions to the Office of Information and Regulatory Affairs (OIRA) within the Executive Office of the President before publication in the Federal Register.”
That’s significant, suggesting the White House could trump — no pun intended — the FTC or FCC. And, determining what a “significant regulatory action” is could present qualms to those at a federal agency, as who would determine what is “significant” was not made clear.
In the executive order, it is stated that independent regulatory agency chairmen “shall regularly consult with and coordinate policies and priorities with the directors of OMB, the White House Domestic Policy Council, and the White House National Economic Council.”
One of the issues of late is rulemaking, and thus the creation of federal law, by federal appointees. Under the Biden Administration, the FCC passed a series of touchy Report and Orders on a party-line 3-2 vote. The current White House believes its executive order could prevent this, even though it has the ultimate decision-making authority on who will serve as its chair and fill any empty seats — giving it political alignment with the current administration nevertheless.
How so? Look no further than the Office of Management and Budget.
OMB: YEAH, YOU OWE ME
In the Executive Order, the Director of the Office of Management and Budget (OMB) “shall provide guidance on implementation of this order” to the heads of executive departments and agencies — including FTC head Andrew Ferguson and FCC head Brendan Carr — “newly submitting regulatory actions” under section 3(b) of Executive Order 12866.
This will commence within the earlier of 60 days from the date of this order, or completion of such implementation guidance, the Executive Order reads.
This empowers the Director of OMB, Russell Vought, to establish performance standards and management objectives for independent agency heads, “as appropriate and consistent with applicable law,” and to report periodically to President Trump on their performance and efficiency in attaining such standards and objectives.
Many news organizations have finger-pointed Vought as one of the key authors of Project 2025, a controversial conservative-aligned political plan intended to shake up the federal government — putting action to words on “draining the swamp,” in reference to the District of Columbia’s geography and notoriously horrible summertime humidity.
With Vought empowered to review independent regulatory agencies’ obligations for consistency with the president’s policies and priorities, could this Executive Order backfire, should a Democrat win the White House in 2028 or in later years? Could the federal courts negate or dilute the Executive Order?
Those are questions many may be asking, as the FCC prepares to embark on another new course.
