Verizon Wireless is hoping to have its
wireless deregulatory cake and eat it too.
In
a brief in the Supreme Court, the company said a court should rule that the
deference the courts generally give an expert agency's subject area expertise
when it reviews a challenge to one of those decisions should not extend to the
agencies' determination of the scope or existence of its statutory authority.
In
other words, the FCC should not be the arbiter of the limits of its own
authority, which should be the purview of the courts.
But
the case at issue was one in which the FCC determined it had the authority to
cut through local delays in tower citing approvals, a move applauded by cell
companies including Verizon Wireless.
In
its filing, Verizon says as a general matter, courts should not give Chevron
deference, but instead adjudicate de novo on whether there is statute providing
the authority, but that the court need not overturn the ruling itself, since
the company argues Congress has given the FCC that express authority to preempt
local and state regs.
It
is no surprise Verizon is challenging the FCC's authority to determine its
authority, since that could be a central issue in Verizon's own lawsuit against
the FCC over its Open Internet order, which Verizon argues does exceed the
commission's authority.
The
government also filed its brief in the High Court, arguing both for the FCC's
decision and the authority to make it.
The
FCC and Solicitor General's office in their filing argue that the Chevron test
does apply to an agency's authority and has been relied on for decades as a
framework for reviewing an agency's interpretation of ambiguous language.
The
Chevron test (which stems from a 1984 Supreme Court decision) holds that if a
statute is ambiguous, the appeals court must defer to the agency's reasonable
interpretation, even if it diverges from what the court would have reached on
its own. The thought is that the agency by its very nature brings special
subject matter expertise and the balancing of competing policy interests to its
decisions.
"There
is no exception to Chevron for interpretive decisions that involve the scope of
an agency's interpretive decisions that involve the scope of an agency's
statutory authority," the FCC says flatly.
But
at least some Supreme Court Justices must have some questions, since the court
decided to take the case on the single issue of whether or not that is the
case.
Some
have suggested the U.S. Court of Appeals for the D.C. Circuit may hold off on
deciding the Open Internet decision--oral argument is scheduled for February --
to see how the High Court comes down on the authority questions, although one
attorney said he doubted that would be the case, though it might happen that
way coincidentally.
