Courts Still Respect Agency Expertise Post-Chevron -- Rosenworcel

Courts still “respect” technical expertise at agencies like the FCC despite the U.S. Supreme Court’s reversal of the Chevron doctrine, Chairwoman Jessica Rosenworcel said Friday.

“We have new vigor on the Supreme Court revisiting some old precedents that we thought were solid,” she told a Princeton University tech policy event, referring to the high court’s June decision in Loper Bright Enterprises v. Raimondo and Relentless v. Commerce.

Courts have used Chevron to defer to agencies’ statutory interpretations for about 50 years, said Rosenworcel. “Going forward, I think a lot of agencies are going to find that their work is questioned,” she said. “It’s challenging when you’ve got laws from 1934 and technologies from last year identifying exactly how they fit within old legislative structures.”

However, she said: “I actually have a lot of confidence in the work of the agency and especially its engineers and economists.” Agency experts understand communications networks with an “extraordinary” level of “detail,” she said. “I think if we do our homework, I think that the courts will respect that, even in an era where Chevron deference no longer exists.”

It’s an “exciting time” for experts with technical backgrounds, given the rise of AI technology, said Rosenworcel. Every agency in Washington wants a chief technology officer who can “newly assess” digital best practices, especially with AI: “I hope that people who are ... becoming experts in technology find a way to take those skills and bring them to public service at some point in their career.”

Rosenworcel said the FCC knows how “cheap and easy it is to spread AI-manipulated content at scale.” She highlighted the agency’s enforcement action against an operation in the New Hampshire presidential primary election that involved distributing robocalls imitating President Joe Biden’s voice telling recipients not to vote (see 2408210039 and 2409190051).

The agency issued an NPRM related to AI-generated content in political ads in July. In February, it issued a declaratory ruling recognizing that using AI-generated voices in robocalls is illegal under the Telephone Consumer Protection Act. “Transparency is the right place to start,” she said, including disclosure of AI in robocalls, robotexts and campaign advertising, she said.

The Consumer and Governmental Affairs Bureau extended until Nov. 15 the deadline for reply comments on an NPRM and notice of inquiry addressing the abuse of AI-generated robocalls and robotexts in an order Thursday (see 2410250005).