The Supreme Court of the United States on Wednesday morning heard oral arguments in case called Relentless Inc. v. Department of Commerce. Crux to the legal fight in the nation’s highest court is whether the “Chevron Doctrine,” named after the landmark 1984 case Chevron v. NRDC, should be overturned.
David Oxenford, the respected Wilkinson Barker Knauer Partner and a go-to Communications Law attorney in Washington, D.C., believes many of the headlines suggesting the FCC’s power would be diminished if Chevron deference disappears for federal agencies are a bit too heavy. If anything, any change could be beneficial for those challenging the Commission on its rulemaking decisions.
In an e-mail conversation with RBR+TVBR on Wednesday, Oxenford explained the basics of the “Chevron Doctrine,” which says that the Courts will defer to the decision of an administrative agency such as the FCC interpreting an ambiguous Congressional statute unless the agency’s decision is arbitrary and capricious or contrary to law.
“What that basically means is that, if a policy adopted by Congress is capable of many different interpretations, the Courts will defer to the interpretation of the expert agency that is supposed to enforce that statute, unless the interpretation cannot be squared with the language of the statute or the record before the agency,” Oxenford explains.
As an example, Oxenford points to the Communications Act Section 307(b), which says the FCC, in determining how it will distribute broadcast frequencies, “shall make such distribution of licenses, frequencies, hours of operation, and of power among the several States and communities as to provide a fair, efficient, and equitable distribution of radio service to each of the same.”
To interpret this statute, the FCC has made all sorts of rules adopting FM and TV allotment procedures, and policies for other services, that include favoring applicants providing service to areas having no other service, or to underserved areas. “The Courts will generally defer to the FCC’s decisions on issues like these interpretations as the FCC is presumed to be the expert agency,” Oxenford says. “Even if the Judges on the Court may think that a particular decision is not the best way of doing things, if the agency decision is a reasonable interpretation of the statute, the Court will not substitute its own judgement for the agency decision.”
If Chevron was to be overturned, what could this mean for broadcasters? “We would have to see what the Supreme Court said in overturning it,” Oxenford concludes. However, he adds that, in his view, “many of the headlines that this would gut the ability of agencies to regulate are overstated.”
Instead, Oxenford envisions a change in the deference accorded under Chevron that would simply give the Courts greater discretion to question the decision of an agency and to substitute the decisions of the judges for that of the agency as to the correct interpretation of an ambiguous statute.
That, Oxenford says, could lead to more agency decisions being overturned — “though, potentially, it could also lead to more conflicting Court decisions as to what the best interpretation is when an agency is asked to interpret and implement an ambiguous statute as different courts may have differing opinions of what is the best interpretation of an ambiguous statute.”
The Supreme Court in recent years has already taken some actions to scale back the power of administrative agencies. In one instance, Oxenford points to how it is limiting agencies from making major decisions with significant effects on an industry unless there is clear statutory language telling the agency that it has authority to do what it proposes.
“Any Supreme Court decision cutting back on ‘Chevron deference’ would simply give those challenging agency rulings more ammunition to challenge an agency decision,” he says. “They can argue that the agency did not make the right decision, and not be limited (as a challenger is now) to simply arguing that the agency decision that was unreasonable as it was contrary to the statute or lacking a basis in the administrative record. It would not stop agency actions, it would just subject them to more scrutiny.”
