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Policy

Supremes Uphold Chevron Deference to FCC Interpretation Of Its Authority

Affirms lower court ruling upholding FCC authority to set tower-citing deadlines for local action 5/20/2013 10:01 AM Eastern

The Supreme Court Monday (May 20) held that a court must give Chevron deference to an agency's interpretation of an ambiguity in statute over the limits of its authority. In this case it was the FCC's assertion that it had the broad regulatory authority to impose a shot clock on tower citing applications to local governments.

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.

The cities of Arlington and San Antonio, Texas, had challenged the Fifth Circuit Court of Appeals ruling that the FCC was due that Chevron deference, even on the limits of its own authority. Oral argument in the case was held last January, and the court did not appear to be sympathetic to the cities' argument that a court, not the FCC, should decide questions of whether Congress has given it regulatory authority. Solicitor General Donald Verrilli had 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.

The Supremes agreed.

The court said where an agency decision was being reviewed by a court, it is always about whether the FCC strayed beyond the statute.

"When a court reviews an agency’s interpretation of a statute it administers, the question is always, simply, whether the agency has stayed within the bounds of its statutory authority. There is no  distinction between an agency’s 'jurisdictional' and 'nonjurisdictional' interpretations...Because the question is always whether the agency has gone beyond what Congress has permitted it to do, there is no principled basis for carving out an arbitrary subset of ‘jurisdictional’ questions from the Chevron framework."

“We appreciate today's Supreme Court decision that reaffirms the validity of the shot clock rules,” CTIA: The Wireless Association, said in a statement. “These rules require local governments to review tower siting requests within reasonable timeframes and help the industry deliver fast and reliable wireless service to all Americans.”

“I am pleased that, as a result of the Supreme Court’s decision today, one of the Commission’s major achievements in promoting broadband access will continue to protect consumers and drive investment," said acting FCC chairwoman Mignon Clyburn. "Removing obstacles to the timely build-out of wireless broadband services remains a key priority.”

September