Argument preview: Finally resolving “jurisdictional” deference to agencies – maybe
on Jan 15, 2013 at 12:35 pm
No case in administrative law has received more attention than Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., and few questions surrounding Chevron have generated as much debate as the fate of so-called jurisdictional questions: May agencies receive deference when interpreting the scope of their own regulatory authority? The Court will at last take up the question directly on Wednesday when it hears argument in the consolidated cases of City of Arlington v. FCC and Cable, Telecommunications, and Technology Committee v. FCC. Whether the Court will actually resolve the longstanding controversy, however, is not clear; the briefing invites the Court to construe the question narrowly and leave the toughest decisions for another day.
Factual and procedural background
Before building wireless towers or otherwise expanding wireless networks, telecommunications companies generally must obtain state and local zoning approvals. Provisions of the Telecommunications Act of 1996 (TCA), now part of the Federal Communications Act, establish a cooperative federalism regime for the siting process: minimum federal standards govern the placement and construction of wireless service facilities, but state and local governments are free to make decisions within those bounds. At issue in this case is 47 U.S.C. § 332(c)(7), entitled “Preservation of local zoning authority.” Section 332(c)(7)(A) provides that “[e]xcept as provided in this paragraph, nothing in this chapter shall limit or affect” state and local authority over siting decisions. The exceptions are set out in Section 332(c)(7)(B). Most relevant here, Section 332(c)(7)(B)(ii) requires states or localities to act on siting applications for wireless service facilities “within a reasonable period of time after the request is duly filed . . . , taking into account the nature and scope of such request.” Section 332(c)(7)(B)(v), in turn, provides that a person adversely affected by a state or local government’s “failure to act” may commence an action in court. The Commission’s interpretation of “reasonable period of time” – and its conclusion that it had authority to issue such a determination – gave rise to this case.
CTIA—The Wireless Association (CTIA), an association representing the wireless communications industry, petitioned the FCC for, inter alia, a ruling clarifying the requirements of Section 332(c)(7)(B). According to CTIA, state and local governments were delaying unreasonably in addressing siting requests to the detriment of wireless companies and their customers. After providing public notice and receiving comments, the FCC issued its Declaratory Ruling. The Commission first concluded that it had authority to interpret Section 332(c)(7)(B) based on its general authority to administer the Communications Act. The Commission further determined that the requested clarification would serve the public interest and “encourage the expeditious deployment of wireless broadband services,” and it decided that a “reasonable period of time” for acting on siting applications presumptively would be 90 days for collocation applications (that is, applications for additions to existing structures) and 150 days for other applications. Inaction within those time periods would be a “failure to act” triggering the right of action in Section 332(c)(7)(B)(v). The Commission noted that the “presumptively” reasonable time periods could be rebutted in court.
The City of Arlington, Texas, sought review in the Fifth Circuit, arguing, inter alia, that the Commission lacked authority to issue a binding interpretation of Section 332(c)(7)(B). The Fifth Circuit denied relief. In addressing the Commission’s statutory authority, the court acknowledged a circuit split on the question whether agencies are eligible for deference under Chevron when interpreting their own “statutory jurisdiction.” Fifth Circuit precedent does apply Chevron in such cases, so the court then analyzed the Commission’s authority under Chevron’s familiar two steps. The court first concluded that the Act was ambiguous regarding the Commission’s authority. It then found “permissible,” and it therefore deferred to, the FCC’s determination of authority.
Petitioners – the City of Arlington and intervenor Cable, Telecommunications, and Technology Committee of the New Orleans City Council (CTTC) – sought certiorari. Arlington’s petition presented two questions: first, whether Chevron applies “to an agency’s determination of its own jurisdiction”; and, second, whether the FCC in fact has the authority over Section 332(c)(7)(B) that it claimed in the Declaratory Ruling. The Court limited its grant to question one of Arlington’s petition – the long-debated Chevron question.
Positions of the parties
Petitioner Arlington casts the dispute in relatively narrow terms. It identifies the question as whether agencies get deference when interpreting their authority to adopt binding interpretations of a statutory provision, and it argues that precedent and constitutional structure preclude such deference. Arlington reasons that this threshold question, often referred to as Chevron’s “Step Zero,” necessarily must be decided de novo, because an agency’s very power to act hinges on a judicial determination that Congress has given the agency authority. Next, although Arlington acknowledges that the Court granted cert. only on question one, Arlington argues that the Act in fact forbids the Commission from issuing binding interpretations of Section 332(c)(7)(B). Among other reasons, Arlington notes that FCC authority would intrude upon traditional state zoning prerogatives, and the statute should be construed to avoid such federalism problems. Petitioner CTTC adds functional reasons not to defer on jurisdictional questions – because, inter alia, agencies will tend to aggrandize their power, and because agencies have no special expertise in resolving jurisdictional questions.
Petitioners are supported by state and local respondents – the International Municipal Lawyers’ Associations (IMLA) and others – who intervened on petitioners’ side below. (By Supreme Court rule, any party other than the petitioner is deemed a respondent before the Court, so IMLA et al. are technically respondents supporting petitioners.) IMLA, represented by former Solicitor General Paul Clement, goes further than petitioners and argues against deference on a much broader set of “jurisdictional” questions. For IMLA, the jurisdictional category encompasses any agency decision that implicates the “who, what, when, or where” of regulation, as opposed to the “how.” To the extent that the Court has previously afforded agencies deference on such questions, IMLA argues, it has done so only in “drive-by” rulings that do not merit weight. Like Arlington, IMLA argues that deference to an agency on any jurisdictional question is fundamentally at odds with Chevron’s principles and the separation of powers, and adds that deference is even more inappropriate where an agency asserts authority over traditional state functions.
The government, represented by the Solicitor General, argues that deference on jurisdictional questions is supported by precedent, principle, and practicality. The government argues that the Court has “repeatedly” applied the Chevron framework to agency decisions that “involve the scope of an agency’s authority,” and argues that those cases are consistent with Chevron’s underlying rationales. In the government’s view, it is reasonable to find implied congressional delegation to agencies even over jurisdictional questions, which it notes can involve the same technical and policy judgments as other questions. Echoing the most common argument for deference on jurisdictional questions, the government also argues that attempts to distinguish jurisdictional from non-jurisdictional questions will be inadministrable. For these reasons, the government argues that Step Zero is satisfied whenever an agency interprets a statute that has been “generally entrusted to its administration”; after that, Chevron’s two steps kick in, including to the question whether Congress has created an exception to the agency’s general authority. The government further argues that Chevron applies with full force to agency interpretations of statutes that themselves limit state power. And it concludes by arguing that the FCC’s interpretation of its authority under Section 332(c)(7)(B) is correct under any standard of review.
Finally, there is private intervenor-respondent Cellco Partnership (d/b/a Verizon Wireless), a member of the telecommunications association that petitioned for the FCC’s Declaratory Ruling in the first place. Cellco agrees with petitioners about the Chevron question but sides with the government regarding the outcome. As to deference, Cellco echoes the argument that because delegated authority from Congress is a precondition to deference, agencies cannot receive deference on the question whether Congress has delegated such authority. Cellco also posits that the usual rationales for deference don’t apply to jurisdictional determinations, and it argues that deference on such questions would put “the fox in charge of the regulatory henhouse.” Cellco disagrees with petitioners, however, on the bottom line, concluding that interpretation of Section 332(c)(7)(B) is “well within the FCC’s authority.”
The reply briefs are notable both for their sharp criticism of the government and for the minimalist path petitioner Arlington emphasizes to the Court. Arlington and IMLA both denounce the government’s attempt at executive aggrandizement and contest its reading of key precedents. But Arlington, the petitioner that will argue before the Court on Wednesday, urges the Court not to resolve the jurisdictional question broadly. Instead, acknowledging that the meaning of “jurisdictional” can be slippery, Arlington asks the Court to answer only the question directly presented by this case, which it calls the question of “interpretive jurisdiction”: whether agencies get deference when they determine whether they have authority to issue binding interpretations of a particular statutory provision.
There are a few important issues to watch in this case. The first is how the Court defines “jurisdictional.” If the Court decides to answer whether Chevron applies to any action that expands or contracts an agency’s authority in some way, the stakes are high indeed. Almost any agency action can be characterized as implicating the scope of the agency’s authority. This is the point Justice Scalia made in his concurrence in Mississippi Power & Light Company v. Moore in 1988, where he explained that “there is no discernible line between an agency’s exceeding its authority and an agency’s exceeding authorized application of its authority” – “[v]irtually any administrative action can be characterized as either the one or the other.” It is also the best argument in the government’s favor. But if the ruling in Arlington were to deem all such questions outside Chevron’s reach, it would substantially curtail judicial deference to the executive branch.
If the Court instead accepts petitioner’s invitation to decide only whether an agency gets deference regarding its “interpretive jurisdiction” – its authority to issue binding interpretations of a particular term in a statute – the stakes are lower. Petitioner’s argument here is significantly stronger, but based on ordinary statutory construction, this question is less frequently ambiguous. As the Court has explained, an agency’s general authority to administer a statute often makes clear its authority to interpret particular provisions. Exceptions to general agency authority, too, are often explicit. And when interpretive authority is clearly present or absent, of course, the fight over deference to an agency’s view of its interpretive authority is not implicated. None of this is to say that the Court’s resolution of the narrower question won’t matter, but it is unlikely to amount to an administrative-law sea change.
The second issue to watch is whether the Court will reach the question of the Commission’s authority to interpret Section 332(c)(7)(B). Although the Court denied certiorari on that question – usually a sure sign the Court won’t decide a question – the parties went ahead and briefed it, and the Court could conceivably conclude that resolving the statutory question would provide a needed illustration of its Chevron ruling. Less likely, but not impossible, enough members of the Court might find the statutory question sufficiently clear that they not only reach the question, but decide to skip the Chevron question (or render its resolution dicta).
Third, will any members of the Court find merit in the federalism-based arguments advanced by petitioners and IMLA? If so, the Court could potentially place this case in a special category – of limited deference where agency authority would disrupt the state-federal balance of power – without resolving the entire landscape of jurisdictional deference. But the federalism-based resolution is not a great fit in this case. Section 332(c)(7)(b)(ii) itself clearly limits state power by requiring action with a reasonable period of time. Thus, the question here arguably is not whether state power will be limited, but which branch of the federal government will construe the limitation.
Time will tell whether City of Arlington will finally resolve the longstanding administrative law debate over deference to agency interpretations of their own jurisdiction – or whether the colorful debate among academics and lower courts will live on.
Miriam Seifter is a Visiting Researcher at Georgetown University Law Center.
Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the petitioners in these cases.