On February 19, 2025, the Trump Administration issued an Executive Order (EO) titled “Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulatory Initiative.”
As Wiley has previously explained, the EO instructs agencies to pursue broad deregulatory reform through a three-phase process. First, federal agencies must identify regulations that are unlawful or that contradict certain policy objectives. Second, agencies will be required to de-prioritize enforcement of those regulations. Third, the Office of Information and Regulatory Affairs (OIRA) will work with agencies to modify or rescind these regulations.
The EO is poised to have significant impacts across the economy. Regulated companies – including those in the telecommunications, media, and technology (TMT) sector – should consider favorable and unfavorable regulations that could (or should) be swept up in the EO’s deregulatory push. Consulting with counsel and proactively reaching out to regulators and the Administration will be key throughout this process and especially in the first phase, where the Administration will identify the regulations for short-term nonenforcement and long-term recission.
The Executive Order Pursues Broad Deregulation.
Under the first phase of the EO, each federal agency is directed to work over the next two months to identify regulations that are unlawful based on recent developments in administrative law or that contradict certain Trump Administration policy objectives. These include:
- Regulations based “on anything other than the best reading of the” statute. This command appears to refer to the U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). There, the Court overruled Chevron deference and required courts to independently determine statutes’ “single, best meaning” when reviewing agency action. This provision thus appears to take aim at the vast body of regulations developed under the Chevron regime over the last 40 years.
- Regulations “that implicate matters of social, political, or economic significance that are not authorized by clear statutory authority.” This command appears to refer to the Supreme Court’s “major questions doctrine,” which requires Congress to speak clearly when it seeks to give agencies broad regulatory authority.[1] Coupled with the command for agencies to “prioritize review” of “significant regulatory actions” – i.e., those that have a large effect on the economy – this provision appears to take aim at the most impactful regulations.
- Regulations based on “unlawful delegations of legislative power.” This command targets regulations that run afoul of the nondelegation rule. That doctrine requires Congress to give the Executive branch “an intelligible principle to guide [its] use of discretion” when carrying out statutory commands.[2] Although the Supreme Court has not held a statutory delegation of authority unlawful for many decades, some Justices in recent years have suggested it is time to “reconsider th[is] approach” to rein in federal agencies.[3] The Administration appears to be picking up on this cue as part of its own deregulatory effort.
- Unconstitutional regulations or those “that raise serious constitutional difficulties.”
- Regulations that impose more costs than benefits.
- Regulations that significantly impede “technological innovation,” “infrastructure development,” “research and development,” “economic development,” and other key Administration objectives.
- Regulations that “impose undue burdens on small business and impede private enterprise and entrepreneurship.”
Second, after identifying these regulations, the EO instructs agencies to immediately exercise their enforcement discretion to “generally de-prioritiz[e]” enforcement of those they conclude are unlawful – i.e., regulations that in an agency’s view violate a statute or the Constitution. And following the above-described regulatory review, agencies “shall, on a case-by-case basis” terminate “all … enforcement proceedings that do not comply with the Constitution, laws, or Administration policy.” These provisions appear intended to offer rapid deregulatory relief through nonenforcement of targeted regulations – even while those regulations remain on the books.
Third, the EO requires OIRA to “consult with agency heads to develop a Unified Regulatory Agenda that seeks to rescind or modify these regulations, as appropriate.” Under this provision, the Administration appears poised to make significant cuts to federal regulations using Administrative Procedure Act (APA) and similar agency procedures, including – potentially – through notice-and-comment rulemakings that may provide regulated companies with an opportunity to weigh in.
The Executive Order’s Deregulatory Efforts Present Both Risks and Opportunities for Regulated Companies Across Telecommunications, Media, and Technology.
While the EO is not sector-specific, it will have a significant impact across TMT. The Order specifically calls for agencies to identify regulations that hinder “technological innovation” and “research and development” – categories that suggest a special focus on technology regulations. Further, regulation of new technologies often presents thorny statutory-authority questions. When the Supreme Court was considering overturning Chevron deference, it focused heavily on TMT regulation – with Justices asking questions about, for example, “policy-laden questions of artificial intelligence.” These questions often arise in the TMT space because new technologies – like 5G, cryptocurrency, or even the internet – may not have existed when Congress enacted agencies’ organic statutes. This potential for legal uncertainty may cause the Administration to focus on TMT regulations as problematic in a post-Chevron world.
Thus, companies in the TMT space should quickly take stock of the regulations that both hinder and help their industries. The EO presents significant opportunities and risks for regulated parties across the economy. Namely, it offers the potential for rapid relief (i.e., nonenforcement) and ultimately recission of federal regulations that may help or hinder regulated companies.
The Administration’s 60-day timeline to identify problematic regulations is aggressive, and it will likely be more difficult to rescind regulations that do not make it onto the phase-one list – or to preserve regulations that do make it onto the list. Therefore, offering regulators feedback at this stage is particularly important.
Companies should look creatively at regulations across agencies. Agency rules have affected artificial intelligence, digital assets, mobile health, radio, satellite and mobile operations, cybersecurity requirements, trade policy, and more. The Federal Communications Commission (FCC) may have obvious candidates for rescission, but there also may be rules meriting protection if industry has come to rely on them to order their business. The Federal Trade Commission (FTC) does not engage in as much rulemaking as some other agencies, but some of its recent rulemakings (and proposals) have included provisions that expand obligations, such as its recently revised GLB Safeguards Rule, the Health Breach Notification Rule, and various technical specifications. Companies may also consider FTC rules that implement the Children’s Online Privacy Protection Act, the Telemarketing Sales Rule, energy labeling, the Noncompete Rule, and other rules that could limit commercial activity and consumer choice. Niche FTC technology rules (like the amplifier rule or rules about AM radio) may affect technology choices and may also be candidates for review. The U.S. Securities and Exchange Commission (SEC) has various rules that have been criticized for, among other things, exceeding delegations of authority and stifling innovation in cryptocurrency and other areas.[4] Numerous other agency rules affect technology development and innovation.
While some agency rules are already subject to litigation, it would nevertheless be sensible for industry to closely review these rules to suggest recission or modification under the EO in parallel.
[1] See, e.g., Biden v. Nebraska, 143 S. Ct. 2355, 2373 (2023).
[2] Gundy v. United States, 588 U.S. 128, 135 (2019) (plurality).
[3] See id. at 148–49 (Alito, J., concurring); see also id. at 149 (Gorsuch, J., dissenting).
[4] The EO applies to each “Agency,” as defined in 44 U.S.C. § 3502(1). That definition expressly includes “any independent regulatory agency,” which is defined to include, inter alia, “the Federal Communications Commission,” the “Federal Trade Commission,” and the “Securities and Exchange Commission.” 44 U.S.C. § 3502(5). Thus, each of these agencies appears to be subject to the Order.
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