Week in Review

IN THE NEWS

• The Federal Communications Commission (FCC) voted to repeal net neutrality, Obama-era regulations that prevent paid prioritization of Internet content. The FCC characterized this vote as one that would “restore Internet freedom.” U.S Senator Ed Markey (D-Mass.) said in a tweet that he would “not allow massive broadband corporations to throttle our democracy” and included the first page of a Congressional Review Act resolution that would restore net neutrality rules. Washington Attorney General Bob Ferguson (D) announced his plan to challenge the decision in court as a violation of the Administrative Procedure Act. New York Attorney General Eric Schneiderman (D) has also said he plans to sue to halt the reversal while his office reviews allegedly fake comments submitted during the comment period. Earlier this week, the FCC and the Federal Trade Commission announced its plan to “coordinate online consumer protection efforts” following the repeal of net neutrality regulations.
• The Trump Administration issued its semi-annual regulatory agenda, and President Donald Trump lauded the deregulation across several sectors that he claimed his Administration has carried out thus far. Referencing Executive Order 13,771 on regulatory burden reduction, President Trump said that instead of the “one in, two out” called for under the order, “for every one new regulation we have eliminated 22.” James Goodwin of the Center for Progressive Reform reportedly deemed those figures “too absurd to even believe,” saying, “There’s any number of ways they exaggerate these numbers.”
• President Donald Trump signed the 2018 National Defense Authorization Act into law. A provision in the law resurrects an interim rule from December 2015 that would have required “all owners of small unmanned aircraft, including…model aircraft,” to register with the Federal Aviation Administration, even though a federal court struck down the interim rule in May.
• The FCC announced the elimination of the Main Studio Rule, which required “each AM, FM, and television broadcast station to maintain a main studio located in or near its community of license.” FCC Chairman Ajit Pai said the rule appeared to be “outdated, unnecessary and unduly burdensome.”
• Republican and Democratic lawmakers, in both the U.S. House of Representatives and the U.S. Senate, introduced a bill to “promote an enabling environment for the continued development of artificial intelligence (AI) technology.” The bill would establish a federal advisory committee that would advise the U.S. Secretary of Commerce on how AI will help effect education, the work force, and the United States’ international competitiveness.
• The North American Butterfly Association (NABA), a conservationist organization, filed a lawsuit against Trump Administration officials. In the lawsuit, NABA asked the court to halt the Administration’s “border wall preparation activities” because they violate the National Environmental Policy Act, the Endangered Species Act, and the U.S. Constitution. NABA claimed that the border wall would cut through land owned by NABA’s Butterfly Center.
• The Walt Disney Company announced its plan to acquire Twenty-First Century Fox, Inc. Disney said that the deal “would allow Disney to create more appealing content…and deliver a more compelling entertainment experience to consumers.” The companies await shareholder approval of the deal, as well as clearance from regulatory bodies.
• The U.S. Department of State announced proposed changes to its passport rules including those governing the revocation of passports for convicted sex offenders. The proposal includes denial and revocation requirements for certain convicted sex offenders, such as those convicted of sex trafficking minors. Under these proposed changes, the convicted sex offender would be denied a passport until after the individual has served a prison sentence or parole period.
• The U.S. Food and Drug Administration (FDA) proposed the creation of a new fast track to market for certain medical devices that do not meet the clearance criteria under the 510(k) pathway. This pathway requires a product to be a predicate—a product substantially similar to an existing device—and of only moderate risk. FDA Commissioner Scott Gottlieb said the identification of a suitable predicate “can create an obstacle to certain kinds of innovation and lead to inefficiency in the review process.”
• Wisconsin Governor Scott Walker (R) signed a bill lifting the state’s ban on precious metal mining. Governor Walker said that the bill, which will allow mining of gold, copper and other metals, will “create new family-supporting careers” and “protect” the state’s “abundant and valuable natural resources.” The Sierra Club opposed the bill, arguing that the bill “puts Wisconsin’s sustainable tourism and agriculture at risk from pollution.”
• The Administrative Conference of the United States (ACUS)—an independent agency tasked with promoting efficiency in how federal agencies administer regulatory and other program—held its annual plenary session. The ACUS Assembly, which includes academics and government officials, adopted a recommendation that agencies use plain language in regulatory drafting and will be considering proposed recommendations on other topics including regulatory experimentation.

WHAT WE’RE READING THIS WEEK

• In an essay to be published in a forthcoming book on classical liberalism, Michael Rappaport, a professor at the University of San Diego School of Law, asserted “that, with some institutional reforms, one could apply the separation of powers more strictly to administrative agencies to promote a more classical liberal administrative law.” To implement this “stricter separation of powers,” Rappaport advocated for creating “independent administrative courts,” allowing Congress to “vote upon major regulations that agencies propose to implement,” and getting rid of judicial deference to agencies on questions of law.
• In a paper for the Environmental Law Review, Laurie J. Beyranevand of Vermont Law School argued the U.S. Food and Drug Administration (FDA) should regulate the use of subjective language, such as the term “healthy,” on food labels because consumers do not fully understand that those statements. Beyranevand asserted that FDA should “restrict claims that cannot be supported by significant scientific agreement” to protect consumers from misleading food labels.
• In an opinion piece published in The Washington Post, Jonathan H. Adler, professor at Case Western Reserve University School of Law, argued that FDA’s regulation of e-cigarettes, “threatens to do more harm than to help public health.” Adler contended the federal Tobacco Control Act’s prohibition on “the ability of producers to make factual statements about cigarette alternatives” likely violates the First Amendment and keeps current cigarette smokers from using less-dangerous alternatives.