Policy

Supremes May Put FCC on Shorter Leash

Appeal Will Examine Limits of ‘Deference’ Agency Can Expect 10/21/2012 8:00 PM Eastern

WASHINGTON — The Federal Communications Commission might not be able to rely on getting court deference for decisions that hinge on its own interpretation of its authority such as, say, its network-neutrality rules, depending on how the Supreme Court handles an appeal it has agreed to hear.

Under the Chevron doctrine established in the 1984 Supreme Court decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., courts generally defer to expert agencies’ decisions. The deference is not dispositive, since the court will overturn rules, but it is essentially a rebuttable presumption in favor of the agency’s specific subject matter expertise.

But now the high court has decided to decide whether or not the FCC, or any agency, should have that presumption when it comes to determining its own statutory authority.

The case is Arlington, Texas, vs. the FCC and the issue is the agency’s assertion that it can adopt national zoning standards for wireless facilities placement — one of the agency’s many moves to help speed the deployment of broadband.

In asking the High Court not to hear the appeal of a lower court decision giving deference to its decision, the FCC said it was simply using its general authority to clarify “ambiguous” provisions of the Communications Act.

Federal circuit courts have split over the issue of Chevron deference, and the high court has yet to definitively say whether Chevron should apply in the case of determinations of statutory authority.

Scott Cleland, chairman of Netcompetition.org and no fan of agency activism that can stem from assertions of broad, general authority, sees the case as a pivotal one for the FCC. He predicted the Supreme Court would find that the FCC can’t be the final arbiter of the limits of its own power, which is the role of the checks and balances of Congress and the courts.

“Importantly, the FCC probably needs very generous Chevron deference if the FCC’s Open Internet Order and net neutrality regulations are to survive the pending legal challenge in the D.C. Court of Appeals,” he said in a blog posting titled “Supreme Court Likely to Leash FCC to the Law.”

Cleland pointed out that the FCC’s decision in the Comcast- BitTorrent appeal was thrown out by the U.S. Court of Appeals for the D.C. Circuit because the FCC asserted unbounded authority to regulate where there was no statutory directive from Congress.

Of course, no one ever retired on predicting Supreme Court decisions (such as the one on the Affordable Health Care Act). Circuit splits are one of the reasons the court will take a case, so it does not necessarily mean they would come down one way or the other.

Cleland has argued that the Court generally takes such cases “to preserve constitutional limits on government power, not to confer unlimited power.”

Only time and one hour of yet-to-be scheduled oral argument will tell.

March