“A Telecom Attorney’s Defense Of The Chevron Doctrine” by TLP’s Carl W. Northrop, published in Law360

“A Telecom Attorney’s Defense Of The Chevron Doctrine” by TLP’s Carl W. Northrop, published in Law360

A Telecom Attorney’s Defense Of The Chevron Doctrine

By Carl Northrop 

Law360 (November 21, 2023)

“A Telecom Attorney’s Defense Of The Chevron Doctrine” by TLP’s Carl W. Northrop, published in Law360
Carl Northrop

The U.S. Supreme Court’s 1984 landmark decision in Chevron USA Inc. v. Natural Resources Defense Council Inc. is under attack.

In two cases that are scheduled for oral argument in the Supreme Court on Jan. 17 — Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce — the petitioners are asking the court to overturn the Chevron doctrine, which holds that courts should defer to a federal agency’s interpretation of an ambiguous statute as long the interpretation is reasonable.[1]

The conventional wisdom is that the long-standing Chevron policy will not survive.

I am a telecommunications attorney. Like many others in this practice area, I have had what I considered to be worthy appellate challenges to actions of the Federal Communications Commission fail based upon the deference given by the appeals court to the expert agency.

Indeed, the extent of the reliance of the FCC on the Chevron doctrine would be difficult to overstate. FCC decisions that get appealed are often close calls, with good arguments on both sides.

Not surprisingly, the FCC regularly cites Chevron in these cases in an effort to put a finger on the scale in its favor, and it often succeeds.

As a result, I have some colleagues who welcome the demise of Chevron, so they can have what they consider to be a fair fight with the agency without the deck being stacked against them. But, I disagree.

The court should not overrule the case and abandon the Chevron doctrine. Rather, it should admonish courts and agencies to strictly and narrowly construe the definition of an ambiguous statute and not to rule upon issues that are better left to Congress.

Properly viewed, the problem isn’t the Chevron doctrine itself, but rather the manner in which Chevron has been applied. In too many cases, deference has turned into a rubber stamp.

Perhaps there is no better example of this than the appeal of the FCC’s 800-page order in 2011, in which the agency completely reformed its intercarrier compensation regime.[2]

Thirty-one different appeals were filed by dozens of wireline companies, wireless companies and state regulatory commissions in Direct Communications Cedar Valley LLC v. FCC, challenging virtually every aspect of the order in the U.S. Court of Appeals for the Tenth Circuit.

In its 2014 decision, the three-judge panel addressed more than 20 issues that had been raised by the appellants and ruled in favor of the FCC on every one, citing Chevron countless times in the process.

In describing its approach to Chevron, the court held, “This court gives deference to the agency’s interpretation so long as that interpretation is not arbitrary, capricious, or manifestly contrary to the statute.”[3]

The FCC’s record on appeal in its on-again, off-again net neutrality rules also demonstrates the seemingly endless power of Chevron deference. In 2015, the FCC took the view that broadband internet access service should be classified as a telecommunications service, rather than an information service.[4]

In 2016, the U.S. Court of Appeals for the D.C. Circuit upheld the reclassification in U.S. Telecom Association v. FCC as reflecting a reasonable interpretation of the statute under Chevron, noting that its role on appeal was a limited one.[5]

When the political composition of the commission changed, the agency reversed course on the net neutrality policy and returned to classifying broadband internet access service as an information service.

When this reversal was appealed to the D.C. Circuit, the court again affirmed in 2019, citing Chevron 54 times in the Mozilla Corp. v. FCC opinion and noting that the court was forbidden from substituting its judgment for that of the agency.[6]

Now, the political tides have shifted again and FCC Chairwoman Jessica Rosenworcel has opened a proceeding to again reclassify broadband internet access service as a telecommunications service.[7]

Any FCC order making this change no doubt will be appealed, and the FCC general counsel certainly will try to rely on Chevron to defend the order. So, while the pendulum may swing back and forth on issues of regulatory policy like the net neutrality rule, the reliance of the agency on Chevron is constant.

In some respects, the latest turn in the net neutrality debate brings into focus the issue of whether the Chevron doctrine should be altered or abandoned. Rosenworcel and FCC Commissioner Brendan Carr have put out dueling statements on the net neutrality issue.

Rosenworcel heralds her proposal as necessary to empower the FCC to act as the “expert agency ensuring that the internet is fast, open, and fair.”[8] Carr, on the other hand, decries the proposal as one which “hands the Administrative State effective control of all Internet services and infrastructure in the country.”[9]

It is Carr’s reference to the so-called administrative state that brings us back to the Chevron issue. Overturning Chevron has been a common theme of those seeking to halt the advance of the administrative state, of which executive branch regulatory agencies are a major component.

For example, Justice Clarence Thomas has argued that Chevron deference rests on the fiction that ambiguity in a statutory term is best construed by delegation of powers to an administrative agency.[10] Justice Neil Gorsuch has opined that a neutral magistrate will be a better arbiter than a bureaucrat.[11]

But what these attacks on the Chevron deference seem to dismiss is the concept of an expert agency. Let’s go back for a moment to the intercarrier compensation order discussed above.

I have been representing clients in interconnection matters since the beginning of my career and can say without question that these are exceedingly complex technical matters.

Personally, I would rather have issues pertaining to interconnection decided by a career FCC staffer who has been dealing with these issues on a daily basis than by a judge who has not.

Realistically, there will always be ambiguities in statutes. Lawmaking has understandably been compared to sausage-making.[12] The compromises that are made, and the often unreasonable timetables that must be met, are not ideal incubators for precision and clarity.

There will be instances in which the intended meaning of statutory language is uncertain. Arguably, the best decision maker to resolve the uncertainty is the agency that has been established to address issues in this substantive area.

The problem is that agencies may have a natural inclination to find an ambiguity when in fact what it faces is a gap left by Congress. Filling gaps in statutes should be a legislative function left to lawmakers on Capitol Hill, not an administrative function fulfilled by an executive branch agency.

This conclusion is entirely consistent with the original Chevron decision. Before deferring to the U.S. Environmental Protection Agency’s reasonable interpretation of the Clean Air Act, the Supreme Court first found that the Clean Air Act was intended to enlarge, rather than to confine, the power of the EPA to regulate in the precise area under review — and that the EPA was given broad discretion to implement the policies of the Clean Air Act.

Since the statute was intended to occupy the field the EPA was plowing, the fact that the statute did not address the recommended outcome in the case at hand was an ambiguity, not a gap, in the statute that the EPA was empowered to clarify in a reasonable fashion.

So, one option the Supreme Court has in its consideration of the future of the Chevron doctrine is not to overrule it, but to admonish courts and agencies to strictly and narrowly construe the definition of an ambiguous statute.

That would be a better course and one that is more in keeping with the long-standing principle of stare decisis.

_______________________________________________________________________________

Carl Northrop is the founding member of Telecommunications Law Professionals PLLC.

 The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] See Loper Bright Enterprises v. Raimondo (Docket 22-451) and Relentless v. Commerce Department (Docket 22-1219).

[2] See Connect America Fund; A National Broadband Plan for Our Future; Establishing Just and Reasonable Rates for Local Exchange Carriers; High-Cost Universal Service Support; Developing an Unified Intercarrier Compensation Regime; Federal-State Joint Board, 26 FCC Rcd 17663 (2011) (the Intercarrier Compensation Order).

[3] Direct Communs. Cedar Valley, LLC v. FCC, 754 F.3d 1015, 1041 (10th Circ. 2014).

[4] See In re Protecting and Promoting the Open Internet, 30 FCC Rcd. 5601 (2015).

[5[ See U.S. Telecom Ass’n v. FCC, 825 F.3d 674 (D.C. Cir. 2016).

[6] See Mozilla v. FCC, 940 F.3d 1 (D.C. Cir. 2019).

[7] See, e.g., Safeguarding and Securing the Open Internet, WC Docket No. 23-320, Notice of Proposed Rulemaking, FCC 23-83 (October 19, 2023) (“Net Neutrality NPRM”).

[8] Net Neutrality NPRM, Statement of Chairwoman Jessica Rosenworcel. FCC-23-83A2.pdf.

[9] https://docs.fcc.gov/public/attachments/DOC-398244A1.pdf.

[10] Cuozzo Speed Techs., LCC v. Lee, 579 U.S. 261, 286 (2016).

[11] Buffington v. McDonough, 143 S. Ct. 14 (2022) (Gorsuch, J, dissenting).

[12] e.g., John Miller, Making law is like making sausage, The Spokesman-Review, (Feb. 15, 2006), https://www.spokesman.com/stories/2006/feb/15/making-law-is-like- making-sausage/.

 

 

The post “A Telecom Attorney’s Defense Of The Chevron Doctrine” by TLP’s Carl W. Northrop, published in Law360 first appeared on Telecommunications Law Professionals, PLLC.

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