Verizon: FCC Not Best Judge of Its Authority
Argues Chevron deference shouldn't apply, but tower citing decision should stand on own merits; FCC says it's no brainer -- Chevron applies
By John Eggerton -- Broadcasting & Cable, 12/20/2012 2:37:17 PM
In a brief in the Supreme Court, the company said a court should rule that the deference the courts generally give an expert agency's subject area expertise when it reviews a challenge to one of those decisions should not extend to the agencies' 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 says 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.
Sounds like Verizon, a company, for that for most part, is built on licenses and rules developed under FCC authority, desires the actual authority of it's regulator.
For years, they've agreed to rules of its licenses, including spectrum, which the FCC allocated to them and others, in the public interest, resulting in a fairly profitable business for Verizon and their shareholders.
It seems that if Verizon didn't believe the FCC had authority to allocate licensable property, it wouldn't have bid and paid for licenses, including spectrum.
If I recall, the FCC made a block of 700MHz spectrum available, provided open access. Verizon bid on it, and won the license, including the provisions to use that spectrum. If they didn't believe the terms were agreeable, they shouldn't have bid on that spectrum.
But let's face it- if Verizon hadn't bid and won licenses, to provide services in the public interest, they'd be nothing more than an unlicensed broadcaster, something similar to a pirate radio station, and the FCC would have shut them down. The FCC has actually done this in the past.
Im not entirely sure what it is Verizon wants but they can always lobby Congress for the FCC to take a Department of Interior Approach, similar to the Materials Management Service, for additional authority. Taking a MMS approach may be best. The Minerals Management Service collects data, and provides it to Congress in addition to providing settlement to the US Treasury.
Using a similar approach, data could be provided to the FCC on a zipcode basis of what spectrum it has been allocated, and what is actually in-use.
The MMS currently does this, and compiles a report, delivered to Congress for oil rights and royalties purposes. If I recall, in the last annual report, 90% of licensable areas of land for drilling were not drilled, or producing energy. This issue, and additional expense is likely keeping prices artifically high.
So in my mind, Verizon better just roll up its sleeves, and start building a network based on the airwave rights, licenses and rules it agreed to as part of doing business, and collecting the public's money in the regionalized monopoly areas it operates.
If Verizon has difficulty meeting mandated rules, sale or divestiture of certain assets could be accomplished.
Robert B. Holcombe - 12/24/2012 12:31:20 PM EST
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