DOGE Could Target FCC Programs, May Exceed Executive Authority

A plan for cutting regulations and federal institutions such as the FCC could target broadband access programs and media regulations, but it's likely that a wave of litigation will stymie it, administrative law professors and attorneys told us. Future Department of Government Efficiency (DOGE) heads Vivek Ramasawamy and Space X CEO Elon Musk laid out their plans in a Wall Street Journal opinion column. “It's not to say that maybe some of these changes shouldn't be happening, but, you know, they're taking a wrecking ball to fix something that requires a little bit more finesse than that,” said University of Idaho law professor Linda Jellum. Asked about possible DOGE cuts at the FCC, incoming FCC Chairman Brendan Carr last week told reporters, “There's no question, there's tons of room for driving more efficiency at the FCC." He didn't elaborate.

In the opinion piece, Musk and Ramaswamy said DOGE will identify regulations that they believe exceed agency authority in the wake of recent U.S. Supreme Court rulings overturning the Chevron doctrine and establishing the major questions doctrine. President-elect Donald Trump would then “by executive action, immediately pause the enforcement of those regulations and initiate the process for review and rescission.” That would create “a drastic reduction in federal regulations,” prompting “mass head-count reductions across the federal bureaucracy,” Musk and Ramaswamy wrote. Head-count reductions would result in layoffs despite the civil service protections that many federal employees enjoy, they added. The column also says the plan is to enact DOGE cuts without new laws from Congress. “We will focus particularly on driving change through executive action based on existing legislation rather than by passing new laws,” they wrote. “The use of executive orders to substitute for lawmaking by adding burdensome new rules is a constitutional affront, but the use of executive orders to roll back regulations that wrongly bypassed Congress is legitimate and necessary to comply with the Supreme Court’s recent mandates.”

Agencies, such as the FCC, can’t simply cease enforcing regulations that remain on the books, said American University administrative law professor Jeffrey Lubbers. They must "provide some reason for doing so.” If the FCC or other agencies cease enforcing rules without explanation, public interest groups, companies or even state governments could use the courts to force them to do otherwise, he said.

For example, after the Department of Homeland Security in 2012 sought to cease deporting individuals who were illegally brought to the U.S. as children through the Deferred Action for Childhood Arrivals (DACA) program, numerous states sued to compel DHS to enforce its rules, Lubbers noted. Said Jellum, "[It's] a very naive view” that “the best way to downsize government is to simply have [it] stop enforcing its rules.” It “ignores the fact that there's another side, the other parties that are going to be out there that are going to come in and try to get rules enforced."

Agencies have discretion about which regulations they prioritize, but they “cannot simply ignore the law and refuse to do their job without a risk of lawsuits,” said Don Moynihan, professor of public policy at the University of Michigan's Ford School of Public Policy. "The president's constitutional obligations include the Take Care Clause, that ‘the laws be faithfully executed,’" Moynihan said

Moreover, the courts have established limits on when an agency can rescind a rule, and what justification is needed, Lubbers said. In Fox Television v. FCC, the U.S. Supreme Court ruled that agencies must demonstrate that the facts justifying a rule have changed before they can rescind it, Lubbers said. The courts would likely also consider “reliance interests”-- entities that have spent money to conform to a regulation could oppose those regulations being rescinded, he said.

The executive branch also lacks the authority to shut agencies that Congress authorized or control their budgets, Jellum and Lubbers said. “It's not up to the president or anybody else just to say, ‘We're announcing a reduction in force for this agency,’” Lubbers said. “If Congress cooperated and ... eliminate[d] agencies or programs, then there could be a reduction in force.” He said that if Trump’s administration sought to get such reductions through Congress, Democrats could seek to block them using the Senate filibuster. Lubbers predicted “that the Trump administration is going to get frustrated, and they're going to try to get rid of the filibuster.”

Musk and Ramaswamy “are claiming executive authorities that simply do not exist,” Moynihan said in an email. Their federal advisory committee can make recommendations to Trump and Congress but has no independent power itself, he added. "There is real need for government modernization, but thus far, the claims of Musk and Ramaswamy have been focused on cutting costs and employees rather than how to improve the capacity and quality of government,” he said. "That might be good for billionaires whose businesses are heavily regulated (like Musk), but not good for everyone else.”

The Trump/Vance Transition Team and the Department of Government Efficiency account on X didn't respond to requests for comment. The National Treasury Employees Union, which represents FCC employees, declined to comment, while the American Federation of Government Employees directed us to its Nov. 13 statement that "Millions of Americans should brace for massive cuts to benefits and services they rely on for their survival under plans to target government spending and operations."

DOGE and FCC

At the FCC, "an obvious candidate” for cuts is "to consolidate the patchwork of more than 100 programs doling out funds to support broadband access,” Free State Foundation President Randolph May emailed. “There would be plenty of savings in personnel and other resources from eliminating duplication and overlap." May said another area ripe for change is the FCC’s merger review process, “which substantially duplicates the DOJ and FTC reviews, which themselves are ripe for consolidation.” He added, “The FCC historically has abused its transaction review process to impose extraneous conditions on applicants, not uniquely related to the specific transaction being considered, that, if at all, should be adopted in a generic rulemaking proceeding.” A reduced FCC role in transaction reviews “would save money and, at the same time, promote the rule of law by limiting the exercise of its power in arbitrary ways.”

TechFreedom Senior Counsel Jim Dunstan said reauthorization of the affordable connectivity program could become more difficult under DOGE. It could amplify arguments that the income limit of 200% of poverty level is too high. Moreover, it could use data showing ACP was largely a subsidy for people who would have paid for connectivity by other means, rather than driving new broadband subscribers. It’s easy to envision DOGE calling ACP unnecessary, Dunstan said. More broadly, DOGE “could come down hard on the entire USF program, which has been under fire for decades [for] wasting an enormous amount of money,” Dunstan said. “DOGE could be a catalyst to a larger discussion of how government subsidies should work for telecommunications and information services. Are there more efficient ways of providing subsidies for those in need?”

In addition, it's sensible that numerous cable and media regulations “that no longer make any sense in today’s TMT environment characterized by abundant consumer choice, competition, and technological dynamism” should be targeted, May said. "The new administration, along with Congress, should get serious about eliminating outdated media regulations to conform to today’s digital marketplace realities."

CPB

While Musk and Ramaswamy mentioned the CPB as a likely target, Harold Furchtgott-Roth, director of the Hudson Institute's Center for the Economics of the Internet, said CPB is statutory and funded by congressional appropriations, so Congress and not the White House would make decisions about it. By contrast, the Universal Service Administrative Co., which collects USF funding and administers the USF programs for the FCC, isn't statutory but a creature of contracts with the FCC, he said. Such contractual relationships could be dealt with without congressional approval, he said.

Dunstan said that because CPB funding flows down to many local broadcasters, Congress has always hesitated to significantly cut its funding due to the power and pressure of local broadcasting in congressional districts. “In addition to having strong bipartisan support in Congress, the American people across the political spectrum value the critical services their local public television stations provide in their community,” said America’s Public Television Stations President Kate Riley. “And at about $1.60 per person per year, and less than .01% of the federal budget, federal funding for public broadcasting provides an exceptional return on investment through their public safety partnerships, educational services and homegrown programming.”

Lubbers and Jellum said DOGE's proposals don’t appear poised to reach the $2 trillion Musk has said he aims to cut from the federal budget. The budget “is mostly made up of mandatory spending,” such as interest on the national debt, Medicaid and Medicare, Lubbers said. The discretionary spending portion of the budget is mostly defense and national security, which a Republican administration likely wouldn’t support cutting, he added. Said Jellum, “There's only a limited amount of the budget you can actually impact, because so much of the budget is not something that the president, or, for that matter, Congress, have a whole lot of control over.” He added, “That leaves a very narrow area for where we can impact change.”

Richard Painter, University of Minnesota Richey Professor of Corporate Law and former member of the White House Counsel’s office, said DOGE must operate with complete transparency and give the public access to its meetings and records. As a federal advisory committee, DOGE must operate under rules set in the Federal Advisory Committee Act, but presidents don’t like FACA and there could be a legal fight should the Trump administration not want to follow it, Painter said. Added Lubbers, “There are a lot of these little [and] ... government-wide procedural laws” that Musk and Ramaswamy probably haven’t considered. “They didn't even get the name of the Administrative Procedure Act right,” he said. “Not to be too pedantic, but the administrative law professors ... we notice that.”