High Court to Clarify Agency Deference

     (CN) – The U.S. Supreme Court will resolve a division among lower courts on how to review the scope of a government agency’s jurisdiction.
     The justices on Friday agreed to hear the combined cases of Arlington, Texas v. FCC, and Cable, Telecommunications & Tech v. FCC, which seek guidance on the standard to apply when reviewing an agency’s own determination that it has the authority to interpret federal law.
     Some federal appeals courts have applied the standards outlined in Chevron U.S.A. v. Natural Resources Defense Council, which requires courts to defer to an agency’s interpretation of an ambiguous law, so long as that interpretation is reasonable and “permissible.”
     In the case of Arlington v. FCC, 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, Texas, 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.
     In Chevron v. NRDC, the Supreme Court ruled that “[a]s long as the agency’s construction of an ambiguous statute is permissible, it must be upheld.”
     The FCC claimed that an agency’s interpretation of its own statutory authority is subject to Chevron review, while the cities argued that the issue raises a “pre-Chevron question of law regarding the scope of the FCC’s authority,” which requires de novo review.
     The 5th Circuit joined the 10th Circuit and the 3rd Circuit in applying Chevron deference to disputes over the scope of an agency’s jurisdiction. However, the federal appeals court in New Orleans acknowledged that the Supreme Court “has not yet conclusively resolved the question of whether Chevron applies in the context of an agency’s determination of its own statutory jurisdiction, and the circuit court of appeals have adopted different approaches to this issue.”
     The 7th Circuit and the Federal Circuit, for example, have chosen not to apply Chevron deference.
     The justices have agreed to settle the question by consolidating the FCC cases and granting certiorari.
     The parties will be given one hour for oral argument.

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