Courts 'Nibbling' at 'Chevron' Deference, OGC Attorneys Say

Chevron deference is a “security blanket” for FCC litigators, but there’s a legal school of thinking that courts shouldn’t defer to agencies when the matter involves “major” decisions, Lewis said. Recently appointed Supreme Court Justice Neil Gorsuch is seen as holding this view (see 1703210065), Lewis told us. That view and some judicial opinions outlining other circumstances where Chevron may not apply showed up in dissents and concurrences in rulings on recent cases, Lewis said. None of the perceived nibbling at the standard has been part of any court’s principal rulings, Deputy Associate General Counsel Richard Welch noted.

This “major” school of thinking surfaced in Judge Brett Kavanaugh's dissent in the U.S. Court of Appeals for the D.C. Circuit’s May denial of the en banc appeal of USTelecom v. FCC (see 1706130047), Lewis said. “In a series of important cases over the last 25 years, the Supreme Court has required clear congressional authorization for major agency rules of this kind,” wrote Kavanaugh. “The major rules doctrine helps preserve the separation of powers and operates as a vital check on expansive and aggressive assertions of executive authority." The majority ruled that an appeal wasn’t warranted because the rule was likely soon to be reversed, Lewis said.

The D.C. Circuit also nibbled at the precedent in Neustar v. FCC (see 1705260021), Lewis said. The court upheld FCC selection of Telcordia as number portability administrator, but in an “aside” said Chevron deference didn’t apply because the FCC hadn’t sufficiently raised that argument in the case or in the order. The idea that the FCC is required to bring up Chevron in its orders could have “lasting consequences,” Lewis said. The wording could be a mistake, he also suggested.

In a concurring opinion in the Global Tel*Link case decided against the FCC earlier this month, Judge Laurence Silberman said Chevron didn’t apply because the FCC under Chairman Ajit Pai chose not to defend some aspects of the order approved under the previous administration, Lewis said. "I especially agree that Chevron deference would be inappropriate in these unusual circumstances," wrote Silberman. In a dissenting opinion, Judge Cornelia Pillard argued Chevron deference still should have applied, since the rule's wording hadn't changed.

These cases and others seem to suggest some of the older judges on the D.C. Circuit such as Kavanaugh are “strict contexturalists,” and less willing to defer to the FCC without specific language granting the commission power, Welch said. Pillard and newer judges are “more willing” to give the FCC “broad authority,” Welch said. Courts tend to side with the FCC in cases where the challenger doesn’t show sufficiently it has standing to challenge a rule, or that the item in question is a final agency action, Welch said. Rulings showed Chevron deference still in force, such as its ruling against low-power TV broadcaster Mako last year. That ruling in the FCC favor was “a straightforward application” of Chevron, Lewis said.

The agency is waiting for rulings on an unusual number of cases for this time of year, Welch said. Numerous rulings are likely to be released this summer, in cases such as the Multicultural Media, Internet and Telecom Council’s case on multilingual emergency alert system messages and two cases on rules for designated entities in spectrum auctions. Courts are still working through cases on rules passed by the prior FCC, Welch said. That’s likely to change with upcoming actions on net neutrality and media ownership, he said.