FCC Fires Back Against Cities in Cases that Could Mean Revised Chevron Doctrine
The FCC countered arguments by Arlington, Texas, and other parties seeking to overturn a decision by the 5th U.S. Circuit Court of Appeals upholding the commission’s 2009 wireless zoning shot-clock decision. The agency said the Supreme Court should follow precedent and not chip away at doctrine dating to a 1984 case, Chevron U.S.A. v. Natural Resources Defense Council, which requires federal courts to defer to an agency’s interpretation of a statute, as long as that interpretation is deemed “reasonable."
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Industry observers said the court’s decision in Arlington, Texas, v FCC could have much bigger implications for the agency and its jurisdiction in such areas as net neutrality (CD Oct 12 p2). In October, the court agreed to hear the case (CD Oct 10 p15). The Supreme Court is slated to hear the case Jan. 16.
"For nearly three decades, courts, agencies, and Congress have relied on the framework set forth in Chevron ... for reviewing agency Interpretations of ambiguous statutory language,” the FCC said (http://xrl.us/bn7c2q). “Petitioners contend that this framework does not apply to Agency interpretations of statutory provisions that bear on the scope of an agency’s administrative authority. That argument should be rejected."
"Chevron is based on the recognition that, when Congress leaves a gap or an ambiguity in a statutory scheme that has been entrusted to an agency’s administration, Congress has implicitly delegated to that agency the power to reasonably fill the gap or resolve the ambiguity,” the FCC said. “Chevron also reflects this Court’s understanding that the resolution of open questions under a statute often requires the application of technical expertise and the balancing of competing policy interests.” There’s “no exception” to Chevron “for interpretive decisions that involve the scope of an agency’s statutory authority,” the FCC argued. “To the contrary, this Court has repeatedly applied the Chevron framework in reviewing agency interpretations of that character."
The FCC has “broad and longstanding authority to administer the Communications Act,” the agency argued. “It performs that role through such mechanisms as rulemaking and adjudication, in which it speaks with the force of law.” The FCC’s interpretation that it has “authority to administer section 332(c)(7)” of the act and the zoning shot clock order “was correct under any standard of review,” the pleading said.
Verizon Wireless said in a recent court filing (http://xrl.us/bn7c4u) the case “presents a particularly important question of administrative law -- whether a court should apply the familiar two-step framework of Chevron ... when reviewing an agency’s interpretation of its own jurisdiction, i.e., its substantive authority to regulate in a particular area or with respect to certain entities.” Verizon argued that agencies “have no authority save that affirmatively delegated to them by Congress. Thus, although agencies enjoy some judicial deference when they fill in the details of a statutory scheme that Congress has charged them with administering, a ‘precondition to deference under Chevron is a congressional delegation of administrative authority.'”
But Verizon said the court should uphold the FCC shot-clock order. “The specific agency action at issue here is well within the FCC’s authority to interpret the substantive provisions of the Communications Act, as established by this Court in AT&T Corp. v. Iowa Utilities Board. ... Accordingly, regardless of how the deference issue is resolved, the judgment of the court of appeals should be affirmed.”