Any station that has received a letter of inquiry or notice of apparent liability from FCC knows the potential risks that come from being under the commission’s scrutiny.
A recent white paper from Wiley Rein LLP partner Thomas M. Johnson Jr. discusses how a Supreme Court case argued last year may mean changes in how the FCC conducts regulatory oversight.
Johnson focuses on SEC v. Jarkesy, which was before the court in November 2023; the court has yet to issue a decision in the case. Johnson notes that at the core of the Jarkesy case is the ability of a regulator to issue fines in administrative procedures.
The petitioner argues that such fines are a violation of the Seventh Amendment, which guarantees jury trials in civil cases where more than $20 is at stake.
Given the current makeup of the Supreme Court, which has ruled in other cases to limit the power of federal regulators, Johnson notes that the Jarkesy case could lead to the need for significant reform of how the FCC wields its enforcement powers.
In the white paper, Johnson goes on to suggest ways the FCC could maintain its ability to police rules violations and protect the public interest by reforming how it conducts investigations and increasing opportunities for broadcasters to challenge enforcement decisions.
Johnson notes that his proposals are not a comprehensive roadmap for regulatory reform, but they do provide some interesting questions for the FCC and broadcasters to both consider ahead of a ruling in Jarkesy.
Download the full white paper here.
