Supremes Hear FCC's Chevron Defense

Justices are particularly probing of attorney challenging FCC decision

By John Eggerton -- Broadcasting & Cable, 1/16/2013 1:21:40 PM

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 expertise.

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.