FCC Fell ‘Woefully Short’ of APA Compliance on Equipment NPRM: Petitioners

The FCC violated the Administrative Procedure Act when it amended rules incorporating four new equipment testing standards, and did so without the proper notice and comment protocol, alleged iFixit, Public Resource and Make Community in the opening brief Wednesday (23-1311) of their petition for review at the U.S. Court of Appeals for the D.C. Circuit. The opening brief asks that the court remand the rules to the FCC for what the three organizations contend should be a proper rulemaking (see 2311090002).

“This is a straightforward case, with a minimal record and no factual disputes,” the brief said. The FCC issued an NPRM about the four rules but didn’t publish them in the Federal Register, it added. Using a procedure called “incorporation by reference,” the commission informed the public that copies of the rules were available at its headquarters, “which could be read but not copied,” it said.

The NPRM also noted that copies of the proposed rules were available from the private standards development organizations (SDOs) that originally published them, said the brief. But these too couldn’t be copied, and they were available only after making a “substantial payment” to the sponsoring SDO, it said.

During the public comment period, the petitioners “objected to the agency’s failure to comply” with the APA, “on the ground that they were denied reasonable access to the proposed rules, which prevented them from submitting meaningful comments on those rules,” said the brief. The FCC rejected those objections and approved the rules as proposed, “without making them generally available to petitioners and other members of the public,” it said. When the agency approved the rules, it didn’t publish them in the Federal Register, “nor did it publish them on its website or otherwise make them readily available to the public.”

The FCC instead noted again that copies of the final rules would be available for inspection at its headquarters, said the brief. It further stated that copies of the rules could be purchased from the private SDOs that published them, and that at least two of the four standards were available in a read-only format, in SDOs-maintained online reading rooms, it said.

The “sole issues” in the case are whether the FCC acted lawfully when it did not publish the proposed and final rules as the law requires, said the brief. The petitioners contend that the commission fell “woefully short” of the law, and so its order approving those rules “cannot be sustained,” it said.