Beware FCC ‘Sweeping Interpretive Power,’ Petitioners Say in Supreme Court Brief

"The government’s theory is unclear and inconsistent,” petitioners said. “Most of its arguments sweepingly assert as an absolute principle of administrative law that Congress always intends every agency to decide any matter that can be called ‘jurisdictional,’ including even an agency’s claim that it possesses interpretive authority over a statute.

The FCC had defended the earlier 5th U.S. Circuit Court of Appeals ruling in the wireless zoning case, which the petitioners have attacked. The Chevron doctrine has been crucial for nearly three decades, the FCC argued last month, which the petitioners now call “obviously irreconcilable” with Supreme Court precedent. Petitioners’ reply attacked the government’s interpretation, noting that whether the FCC argument is drawn broadly or narrowly, it comes down to an agency deciding its own authority for implementing a given statute. Arlington’s decision will impact municipalities’ freedom, the reply said. “There is accordingly no serious argument that the FCC’s assertion of authority does not ‘affect’ state and local decisionmaking.” The FCC’s positions create “substantial intrusion on a sphere of classically state and local regulation,” the filing said.

The petitioners described 17 cases where the question of interpreting jurisdiction was decided de novo, the type of fresh review they encourage. The reply criticized the FCC’s argument for relying on a concurrence and a dissent more than 20 years old. The government overreached in how it presumes Congress intended the system to work, petitioners said: “Indeed, we are unaware of any statute in which Congress has expressly given an agency the power to determine whether it has interpretive authority over a statute.” Agencies’ own judgments about their jurisdictional power are “self-interested,” the petitioners added. The brief revisited the 1999 case AT&T v. Iowa Utilities Board, which dealt with Chevron and was relied on by the FCC in its December argument -- in a way the petitioners called “misleading” because it took a quotation out of context. There’s a quote from the case that refers to preserving ambiguities of jurisdiction, but that “refers to the Court’s resolution of the substantive challenge to the FCC’s regulations, which the Court reached only after its antecedent, de novo determination that Congress delegated to the FCC the power to interpret the provisions added by the 1996 Act,” petitioners said.

The more relevant precedent is 1986’s Louisiana Public Service Commission v. FCC, the petitioners argued. They mentioned it seven times in their opening brief only to have it “completely ignored” in the government’s response, they added. That case noted a Communications Act provision that “fences off from FCC reach or regulation intrastate matters” and has precedent over “any other provision declaring a general statutory purpose,” petitioners said. The interpretation of past court cases have fixed on specific phrases in the Act, allowing for different interpretation, the brief said.

The petitioners caution the Supreme Court against looking at all forms of review for all agency assertions of any jurisdiction. “We suggest that the Court proceed incrementally and address only the distinct form of ‘jurisdiction’ actually presented by the case: an agency’s power to interpret a statutory provision authoritatively,” they said. They warned against “this sweeping interpretive power” made possible in ambiguity. Oral argument before the Supreme Court is set for Jan. 16.