Petitioners, State Advocates Caution Against Federal Overreach, Supreme Court Briefs Show

Opening briefs were due Monday in the Supreme Court case Arlington, Texas, et al. v. FCC, which will take a hard look at the Chevron doctrine and federal agencies’ ability to determine their jurisdiction. The court took up the question Oct. 5, raising questions about how the FCC exerts its authority (CD Oct 12 p1). Petitioners include the city of Arlington and San Antonio, Texas, Los Angeles, San Diego and the Texas Coalition for Utilities Issues. The petitioners have attracted significant support among state advocates. The National Association of Regulatory Utility Commissioners adopted a resolution Nov. 13 in support of the petitioners (CD Nov 14 p5) and NARUC is now one among many state advocates speaking up.

"Within our federal system of limited and enumerated powers, political actors do not define the scope of their own authority,” petitioners said in their brief. “Those decisions are for the courts, a branch of government insulated from the political pressures that might otherwise influence these jurisdictional determinations.” The petitioners point to the original intent of the 1984 case responsible for the Chevron doctrine: An agency “may issue binding legal interpretations only with respect to statutes for which Congress has delegated the agency authority,” which Chevron made clear, they said.

"It’s all on the line here,” State and Local Legal Center (SLLC) Executive Director Lisa Soronen told us. She described what’s happening as a “pure Chevron case” now that the Supreme Court declined to address the other issues petitioners raised. Telecom isn’t “front and center the way it could have been” had the high court chosen to address those other issues, making the jurisdictional issues of broader importance, she said. The “long overdue” case has “ramifications for administrative law across the board,” said NARUC General Counsel Brad Ramsay. “It’s not at all clear what the court’s going to do on this.” He’s “optimistic” it will side with them, he said.

The Supreme Court case dates to the FCC 2009 wireless zoning shot clock order. The “surprising” part of this order was the FCC’s “conclusion that it had authority to address this area at all,” Best Best municipal telecom attorney Matthew Schettenhelm, representing the petitioners, wrote in a Tuesday article for the California news site PublicCEO (http://xrl.us/bn2pdh). The 5th U.S. Circuit Court of Appeals upheld the FCC order in January but now that the Supreme Court has taken the case, the petitioners will argue “the Fifth Circuit’s view that Chevron applies to jurisdictional issues is at odds with decisions of several other federal appellate courts,” Schettenhelm wrote. “Local government officials and staff interested in wireless facility siting and the limits of a federal agency’s authority should watch the case closely.”

NARUC has joined the amici curiae brief of several SLLC parties, Soronen told us. They include the National Governors Association, National Conference of State Legislatures, Council of State Governments, International City/County Management Association and the Government Finance Officers Association. Ramsay had spoken with SLLC brief writer Thomas Merrill, a “noted scholar on Chevron issues,” and saw an opportunity for a logical “marriage” of interests, Soronen said. Ramsay cautioned that the amicus brief could change because it’s not yet filed. Amicus briefs are due within the next week.

"Agencies are creatures of law and can exercise only the powers delegated to them by law,” NARUC and certain SLLC parties said in their joint amicus brief draft. “They have no inherent authority to define the scope of their own authority.” Congress doesn’t give agencies “a blank check to make policy wherever they please,” the draft said. Courts should “exercise independent judgment” about jurisdictional questions before turning to the Chevron doctrine, which was “unnecessary,” they said. It said “thousands” of lower courts need “guidance” in these jurisdictional questions. The parties express a concern that expanding federal authority means “a restriction of state and local authority."

"The two fundamental protections of our constitutional structure preclude Chevron deference in this case,” said a Monday brief from the National Association of Telecom Officers and Advisors, International Municipal Lawyers Association, National League of Cities, U.S. Conference of Mayors, National Association of Counties, Carlsbad, Calif., and Dubuque, Iowa, supporting the petitioners. “It is not reasonable to conclude that Congress would intend to grant an agency deference to interpret the scope of its own deference.” Deference is “especially inappropriate when an agency’s jurisdictional assertion raises federalism concerns by intruding on state or local authority,” they said.

In their opening brief, the petitioners delve into how jurisdiction should be determined. The process of determining agencies’ jurisdiction should be “conducted by the court de novo and without deference to the agency’s views,” they said. The petitioners argue that there are three steps by which a court determines “whether an agency has validly implemented a statute by adopting rules that have the force of law": The court should look to what the petitioners call “the threshold question” of whether Congress delegated the given federal agency authority; the court should ask whether “there is any substantive ‘gap’ for the agency to fill, or whether Congress instead resolved the specific statutory question”; and if Congress hasn’t resolved the question, the court needs to ask whether the agency’s interpretation of its authority is “sufficiently reasonable to be sustained,” the petitioners said. The 5th Circuit decision committed the “error” of not resolving a jurisdictional ambiguity with a de novo standard and “instead found that it must accept any FCC reading of its own statutory jurisdiction that is not ‘impermissible,” petitioners said. The court should have consulted the “traditional canons of statutory construction, including the presumption that Congress does not intend to expand agency jurisdiction into areas of traditional State and local regulation,” they said. The Cable, Telecommunications and Technology Committee of the New Orleans City Council also advocated for de novo review and cautioned against “automatic” application of the Chevron doctrine. It asked the Supreme Court to reverse the 5th Circuit’s judgment or send it back with instructions to apply Chevron correctly.

The Supreme Court verdict may influence another major court case in the 10th U.S. Circuit Court of Appeals. Pennsylvania Public Utilities Commissioner Jim Cawley advocated that NARUC support the petitioners due to a parallel court case in which NARUC and others are challenging the FCC November 2011 USF order. The verdict of that case, “I believe, will come down to this very issue,” Cawley told his fellow commissioners at NARUC’s meeting earlier this month in Baltimore. The FCC’s “convoluted” interpretation of different parts of the Communications Act has allowed it to overreach, he added. The case “absolutely does” have implications for the 10th Circuit challenge, Ramsay said, adding that a Supreme Court victory would help their case.

Oral argument is scheduled for Jan. 16. The FCC is scheduled to submit its brief on the case in late December, its office of general counsel said. The agency declined to comment. The Supreme Court decision will come no later than July, and “could have widespread ramifications on local control of wireless facilities, and on the limits of federal agencies’ authority in other areas,” Schettenhelm said.