Normally non-controversial biennial action spiced up this year by partial dissent from Commissioner O’Rielly

Thanks to Congress, the FCC has got to charge application fees and, also thanks to Congress, those fees have got to be adjusted every two years in light of changes in the Consumer Price Index. The last time the Commission tweaked its application fee schedule was 2014. If you do the math, you won’t be surprised to learn that we’re due for another adjustment.

Sure enough, the FCC has lifted the curtain on a revised application fee schedule. And there’s reasonably good news to report. Thanks to recent economic trends, this year’s adjustment is hardly worth mentioning: a 1.8% across-the-board increase. Sure, it’s a 1.8% increase, but it’s nowhere near the 8% increase we saw in 2014, the nearly 5% bump announced in 2008, or even the 3% or so increase adopted in 2011. So let’s not be looking this gift horse in the mouth.

The new fees won’t kick in until 30 days after the FCC’s order shows up in the Federal Register. In other words, you’ve got some time to prepare and file applications and still take advantage of the current fee schedule. Check back here for updates about the effective date of the new fees.

Usually, the announcement of a new application fee schedule is about as non-controversial as an FCC order gets. That’s because the FCC has very little say in the matter: Congress has dictated how the fees are to be adjusted every couple of years, and Congress even went so far as to preclude any judicial review of adjustments once they are made. But this year Commissioner O’Rielly has injected some buzz into the biennial ritual by dissenting in part from the Commission’s bare-bones order (which consists of just one page of text, slightly less than O’Rielly’s separate statement).

What’s got the Commissioner’s knickers in a twist? Not the decision to increase fees – he acknowledges that the FCC has “little discretion” on that score. What bothers him is the seemingly boilerplate language in Paragraph 3 of the Order stating that the fee adjustment is being made “pursuant to §§ 1, 4(i), 4(j), and 8 of the Communications Act”. In his view this is offensive because Sections 1, 4(i) and 4(j) provide zero basis for the increase in fees. Rather, Section 8 (which appears in the Act as Section 158) is the only provision that authorizes the application fee adjustment process, and it does so comprehensively. So, as O’Rielly sees it, reference to any other sections is superfluous.

This may seem a bit nit-picky, but there’s more going on here than may initially meet the eye. The Commissioner is apparently troubled by the suggestion that Sections 1, 4(i) and 4(j) provide some kind of “ancillary authority” for the Commission to up its application fees. In his view, those sections plainly provide no such authority; moreover, no “ancillary authority” is needed in view of the unmistakable clarity of Section 8. According to O’Rielly, citation of those other sections is “offensive to those lawmakers who write our governing statute” because it suggests that “Congress doesn’t know the difference between issuing direct requirements to the Commission, appropriately delegating authority as it sees fit, and expressing policy positions without requisite authority”. He rejects the reference to the (in his view) superfluous sections with a resounding “Phooey” and colorfully likens the Commission’s approach to “belts and suspenders on a baby onesie”.

The issue of “ancillary authority” pops up every now and then – Net Neutrality aficionados may recall the role it played in the 2010 rejection of the FCC’s early “Open Internet” efforts. It can be a matter of considerable consequence, especially when the Commission attempts to regulate in ways arguably not consistent with the Act. In such cases, those challenging the agency’s action will argue that the FCC’s actions exceed the authority Congress has granted it, and the FCC will in turn respond that its actions are well within the “ancillary authority” bestowed, usually indirectly or by implication, by one or another section of the Act.

Commissioner O’Rielly seems to see reliance on “ancillary authority” in this case as an inappropriate and unwarranted stretch, especially when express authority has clearly been provided to the Commission. Accordingly, he has taken this opportunity to lay his marker down in opposition to overreaching reliance on claimed “ancillary authority”. Will that make any difference here? Not at all – the adjusted application fee schedule has been approved and cannot be appealed. But we now know that we can expect O’Rielly to be more aggressive in pressing against questionable “ancillary authority” claims going forward. That could prove interesting. Stay tuned.