Policy

‘Chevron Deference’ Gets Its Day at High Court

At Issue: General Authority of Regulator to Make Jurisdictional Call 1/20/2013 7:00 PM Eastern

WASHINGTON — The Supreme Court heard arguments last week on whether the Federal Communications Commission, or any other regulatory agency, has the authority to determine the limits of its own jurisdiction when there is ambiguity in the statute over whether Congress has given it that authority.

Traditionally, under the “Chevron doctrine” — established in the 1984 ruling Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. — courts hearing appeals of agency decisions give deference to the agencies’ subject matter expertise. But there is an outstanding legal question about whether that deference should extend to decisions about the scope of an agency’s authority.

It is never a safe bet to predict how the justices will decide based oral argument, where some play devil’s advocate, but the justices did not appear to be particularly sympathetic to Arlington, Texas’ challenge to the FCC’s authority to put a shot clock on a local franchise authority’s tower-siting decisions.

At issue is not just the FCC’s decision in the case argued last week, but the general authority of any regulator to make such a jurisdictional call. Should the court rule against the FCC, it could affect the agency’s defense of its Open Internet Order, according to Verizon Communications and others challenging that decision.

Arlington city attorney Thomas Goldstein argued that a court, not the FCC, should decide questions of whether Congress has given the agency regulatory authority. U.S. Solicitor General Donald Verrilli countered that as long as the FCC has the delegated authority from Congress to implement a statute, it also gets deference under the Chevron doctrine in filling in gaps where the statute is ambiguous.

Goldstein had not even finished a sentence of his argument before Justice Ruth Bader Ginsburg interrupted him to suggest that it was simply a case of the FCC interpreting a statute, which it has the power to do. She asked, why wasn’t the FCC simply interpreting “reasonable time” in a reasonable way?”

The case, a combination of City of Arlington v. FCC and Cable, Telecommunications, and Technology Committee v. FCC, stems from the FCC’s effort to speed tower citing decisions by local agencies and whether it had the jurisdiction to determine what would constitute a “reasonable period of time” for that local authority to act.

A lower court refused to overturn that FCC decision when it was challenged, but in doing so conceded that there was a split among the circuit courts — one of the historic reasons the Supreme Court will weigh in.

Goldstein said that the issue was not the FCC’s interpretation, but a lower court’s decision that it had to defer to the FCC’s decision that it had the general authority to establish that shot clock even where the court was unclear on whether Congress had given the FCC that authority. Goldstein also pointed out that while the House version of the statue had directed the FCC to undertake a rulemaking to set a time limit on tower citing, it was ultimately removed in favor of a provision that said a court would decide if a locality were taking too much time.

Justice Antonin Scalia countered that lots of statutes included court review, so there was no conflict between that and the FCC’s rulemaking authority.

Also appearing to lean toward the FCC’s argument were Justices Elena Kagan, Sonia Sotomayor and Stephen Breyer.

Chief Justice John Roberts and Scalia appeared somewhat more sympathetic to Goldstein’s argument, but even they were more probing and tougher towards Goldstein than Verrilli.

Verilli suggested that if Goldstein’s argument won out, it would unravel Chevron deference and jeopardize administrative law, with virtually every agency decision challenged. Goldstein said that was just silly, but the justices did not appear to be laughing.

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