Verizon Wireless is hoping to have its wireless deregulatory cake and eat it to.
In a brief in the Supreme Court, the company said a court should rule that the deference the judicial branch typically affords an agency's subject area expertise when it reviews a challenge to one of those decisions should not extend to its determination of the scope or existence of its statutory authority.
In other words, the FCC should not be the arbiter of the limits of its own authority, which should be the purview of the courts.
But the case at issue was one in which the FCC determined it had the authority to cut through local delays in tower citing approvals, a move applauded by cell companies including Verizon Wireless.
In its filing, Verizon says as a general matter, courts should not give Chevron deference, but instead adjudicate de novo on whether there is statute providing the authority, but that the court need not overturn the ruling itself, since the company argues Congress has given the FCC that express authority to preempt local and state regs.
It is no surprise Verizon is challenging the FCC's authority to determine its authority, since that could be a central issue in Verizon's own lawsuit against the FCC over its Open Internet order, which Verizon argues does exceed the commission's authority.
The government also filed its brief in the High Court, arguing both for the FCC's decision and the authority to make it.
The FCC and Solicitor General's office in their filing argue that the Chevron test does apply to an agency's authority and has been relied on for decades as a framework for reviewing an agency's interpretation of ambiguous language.
The Chevron test (which stems from a 1984 Supreme Court decision) holds that if a statute is ambiguous, the appeals court must defer to the agency's reasonable interpretation, even if it diverges from what the court would have reached on its own. The thought is that the agency by its very nature brings special subject matter expertise and the balancing of competing policy interests to its decisions.
"There is no exception to Chevron for interpretive decisions that involve the scope of an agency's interpretive decisions that involve the scope of an agency's statutory authority," the FCC said flatly.
But at least some Supreme Court Justices must have some questions, since the court decided to take the case on the single issue of whether or not that is the case.
Some have suggested the U.S. Court of Appeals for the D.C. Circuit may hold off on deciding the Open Internet decision--oral argument is scheduled for February -- to see how the High Court comes down on the authority questions, although one attorney said he doubted that would be the case, though it might happen that way coincidentally.