Agency Deference Case Divides Supreme Court

     WASHINGTON (CN) – Deference was properly afforded over the interpretation reached by Federal Communications Commission over an ambiguous statute concerning its jurisdictional scope, the Supreme Court ruled Monday.
     The high court had considered the issue under the framework of its 1984 decision Chevron v. NRDC, which held that, “as long as the agency’s construction of an ambiguous statute is permissible, it must be upheld.”
     While the FCC claimed that the interpretation of its own statutory authority is subject to Chevron review, two Texas cities and a telecom argued alleged that there was a con­gressional intent to withhold from the commission author­ity to interpret the limitations.
     The Supreme Court took up the issue in October 2012, consolidating two cases against the FCC that the 5th Circuit decided. One involved Arlington and San Antonio, Texas; the other involved the Cable, Telecommunications, and Tech­nology Committee of New Orleans City Council.
     In the Texas case, the FCC tried to streamline the development of new telecommunications technology by requiring state and local zoning authorities to respond to applications for new wireless communications facilities within 90- and 150-day deadlines.
     Arlington and San Antonio argued that the FCC lacked authority to adopt those deadlines, among other things. The agency insisted that its jurisdiction fell within its general authority to carry out provisions of the Communications Act of 1934.
     Affirming the 5th Circuit, the court sided 6-3 with the agency.
     “Those who assert that applying Chevron to ‘jurisdic­tional’ interpretations ‘leaves the fox in charge of the henhouse’ overlook the reality that a separate category of ‘jurisdictional’ interpretations does not exist,” Justice Antonin Scalia wrote for the majority. “The fox-in­-the-henhouse syndrome is to be avoided not by establishing an arbitrary and undefinable category of agency decisionmaking that is accorded no deference, but by taking seriously, and applying rigorously, in all cases, statutory limits on agencies’ authority. Where Congress has estab­lished a clear line, the agency cannot go beyond it; and where Congress has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow. But in rigorously applying the latter rule, a court need not pause to puzzle over whether the interpretive question presented is ‘jurisdictional.’ If ‘the agency’s answer is based on a permissible construction of the statute,’ that is the end of the matter.”     
     Justices Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined the majority.
     Chief Justice John Roberts wrote the dissent, which Justices Anthony Kennedy and Samuel Alito joined.
     “My disagreement with the court is fundamental,” Roberts wrote. “It is also easily expressed: A court should not defer to an agency until the court decides, on its own, that the agency is entitled to deference. Courts defer to an agency’s interpre­tation of law when and because Congress has conferred on the agency interpretive authority over the question at issue. An agency cannot exercise interpretive authority until it has it; the question whether an agency enjoys that authority must be decided by a court, without deference to the agency.”
     Concurring in part and concurring in the judgment, Justice Stephen Breyer said he would have affirmed for somewhat different reasons. an opinion partly con
     “I say that the existence of statutory ambiguity is some­times not enough to warrant the conclusion that Congress has left a deference-warranting gap for the agency to fill because our cases make clear that other, sometimes context­-specific, factors will on occasion prove relevant,” Breyer wrote.
     He added: “Although seemingly complex in abstract description, in practice this framework has proved a workable way to approximate how Congress would likely have meant to allocate interpretive law-determining authority between reviewing court and agency.”

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