Tomorrow the Supreme Court will hear oral argument in City of Arlington v. FCC. This dispute between local governments and the Federal Communications Commission over the latter’s authority over the application of local zoning rules to wireless facilities could well produce the most significant administrative law decision in a decade. At issue — and the only question upon which the Supreme Court granted certiorari — is whether federal courts should apply Chevron deference to agency determinations of their own jurisdiction.
Although the Supreme Court has never addressed this question head on — and the matter has divided the federal circuit courts — the prevailing wisdom is that Chevron deference should not be available in the jurisdictional context. As I explain in this background paper for the Free State Foundation, Chevron deference is based upon a delegation of interpretive authority by Congress to an administrative agency. Thus to apply such deference to a jurisdictional question is to let the agency determine, in the first instance, how much authority Congress delegated. Such a result is inconsistent with the rationale for Chevron, as clarified in subsequent cases such as Mead, would facilitate agency aggrandizement, and could raise troubling constitutional questions about the nature of agency authority.
Although several parties filed briefs in support of the FCC’s assertion of authority in this case, most conceded the question before the Court. For instance, the briefs by Cellco Partnership d/b/a/ Verizon and AT&T both take the petitioners’ side on the Chevron question, only to argue that the FCC should nonetheless prevail in the immediate dispute with regard to local zoning laws and wireless facilities. Only T-Mobile comes to the FCC’s defense on the Chevron question upon which the Court granted cert. None of this means the petitioners will prevail, but I think it does indicate how the FCC’s position is out of step with the prevailing understanding of Chevron and its progeny.
This issue is of particular interest as I co-authored an article on this question with Nathan Sales several years ago, “The Rest Is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences.” We also participated in a brief of legal academics and the Cato Institute. My prior posts on this case can be found here, here, here, and here.