Supremes Hear FCC's Chevron Defense

The Supreme Court heard arguments on Wednesday on whether
the FCC, or any other regulatory agency, has the authority to determine the
limits of its jurisdiction when there is ambiguity in the statute over whether
Congress has given it that authority.

Traditionally, under the Chevron doctrine stemming from an
earlier Supreme Court decision, courts hearing appeals of agency decisions give
deference to agencies' subject matter expertise. But there is an outstanding
legal question about whether that should include decisions on whether Congress
gave them that authority, or whether a court should consider that question
"de novo," -- without that thumb on the scale in favor of the FCC's

At issue is not just the FCC's decision in the case at
issue, but the authority generally of regulators to make such jurisdictional
calls. That could affect the FCC's determination of its authority in the Open
Internet order argue those, including Verizon, challenging that decision.

It is never a safe bet to predict justice's decisions from
oral argument, where some play devil's advocate, but it did not appear the
court was particularly sympathetic to the challenge to the FCC's authority to
put shot clock on local franchise authority's tower-citing decisions.

Thomas Goldstein, attorney for the City of Arlington, Texas,
argued that a court, not the FCC, should decide questions of whether Congress
has given it a regulator authority. Solicitor General Donald Verrilli countered
that so 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, who led off the oral argument, had not even
finished a sentence 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. 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 authorities and whether it
had the authority 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 that court conceded
there was a split in the circuits, which is one of the historic reasons the
Supreme Court will weigh in.

Goldstein, who often challenged and even interrupted the
Justices, 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 favor the FCC's argument and grilling
Goldstein were Justices Elena Kagan, Sonia Sotomayor and Stephen Breyer.

Chief Justice Roberts and Justice Scalia appeared more
sympathetic to Goldstein's argument. Roberts framed Goldstein's concern as
being about unelected bureaucrats deciding the limits of federal vs. state
authority, while Scalia suggested it was a separation of powers issues, since
the decision was between the authority of federal regulators and the courts.

But even they were more probing and tougher on Goldstein
than Verrilli.

Verrilli 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 silly.

Neither Justice Clarence Thomas, per his custom, nor Justice
Samuel Alito asked questions.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.