Perspectives from FSF Scholars
July 30, 2019
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The FCC (and Administrative Law) at the Supreme Court,
October Term 2018
by
Christopher Walker
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[Below are the
Introduction and Summary
and the
Conclusion
to this latest FSF
Perspectives
. A PDF version of the complete
Perspectives
, with footnotes, is
here
.]
Introduction and Summary
The October Term 2018 was a busy one for administrative law at the Supreme Court, but not for the Federal Communications Commission (FCC), at least in terms of the agency’s direct involvement. In
Kisor v. Wilkie
, the Court preserved
Auer
deference to agency regulatory interpretations, yet reworked it in substantial ways. In
Gundy v. United States
, the Court rejected 5-3 yet another nondelegation doctrine challenge, but this time four Justices expressed interest, in the appropriate case, in revitalizing the doctrine, under which in its current incarnation even the Communications Act’s vague “public interest” standard has been approved.
And in
Department of Commerce v. New York
, the Court rejected the government’s attempt to add a citizenship question to the 2020 census, finding that the agency action would be permissible under the Administrative Procedure Act (APA) but for the fact that the agency’s proffered reason was pretextual and thus impermissible. Surprisingly, the FCC’s 2015 Open Internet Order, imposing public utility-like mandates on Internet service providers, made a cameo appearance in one of the census case opinions.
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The FCC was not a party to any case this Term, but the fourth main administrative law decision of the Term,
PDR Network v. Carlton & Harris Chiropractic
, involved whether, in an enforcement proceeding, a party could challenge a decade-old FCC order that interpreted the Telephone Consumer Protection Act. The
PDR Network
case involves the Hobbs Act, under which review of many FCC orders are sought, so it has important implications for the agency.
This FSF
Perspectives
essay explores these four main administrative law cases from the Court’s October 2018 Term – all of which, in one way or another, implicate the FCC and its decisionmaking. And, as you will see,
Kisor
,
Gundy
, and
PDR Network
all involve separation-of-powers principles that undergird the proper relationship among courts, Congress, and the agencies, including the so-called independent agencies like the FCC.
Conclusion
The October Term 2018 produced a number of important administrative law decisions. While none of them involved the FCC as a party, all have implications for the FCC’s regulatory activities and subsequent judicial review.
Auer
deference, involving judicial review of an agency’s interpretations of its own regulations, was substantially narrowed and reframed as a five-step test. The nondelegation doctrine, which at least in theory prohibits Congress from delegating authority without specifying an “intelligible principle” to guide the agency, may see a revival soon. If so, the Communications Act’s public interest standard certainly is a likely target. And courts may now do a “harder look” into agency decisionmaking and agency motives. Finally, the Hobbs Act may end up not applying to preclude judicial review of prior agency statutory interpretations, at least in the context of subsequent enforcement actions, including those of the FCC.
In each case, the lower courts (and litigants) are left to further develop and apply these administrative law doctrines. So, stay tuned!
* Christopher J. Walker is a Professor of Law at The Ohio State University Moritz College of Law and a member of the Free State Foundation’s Board of Academic Advisors. The Free State Foundation is an independent, nonpartisan free market-oriented think tank located in Rockville, Maryland.
Read the complete
Perspectives,
with footnotes,
here
.
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