Academic journal article Federal Communications Law Journal

City of Arlington V. FCC: The Death of Chevron Step Zero?

Academic journal article Federal Communications Law Journal

City of Arlington V. FCC: The Death of Chevron Step Zero?

Article excerpt

TABLE OF CONTENTS  I. INTRODUCTION  II. THE COURT'S DECISION IN CITY OF ARLINGTON V. FCC     A. The Circuit Split Leading to Arlington     B. The Background Surrounding the Arlington Case     C. The Majority Opinion  III. THE REAL QUESTION PRESENTED IN ARLINGTON: THE DISSENT AND THE CONCURRENCE  IV. THE IMPLICATIONS OF ARLINGTON     A. Chevron Step Zero?     B. The Open Internet Case     C. The Nondelegation Doctrine  V. CONCLUSION 


While much attention has been paid to the Supreme Court's marquee opinions this last Term on gay rights, (1) voting rights, (2) and affirmative action, (3) a potentially significant administrative law decision has largely escaped notice. In City of Arlington v. Federal Communications Commission, the Supreme Court held that an agency should receive Chevron deference for its interpretation of a statutory ambiguity concerning its "jurisdiction"--that is, the scope of its regulatory authority. (4) Some Courts of Appeals had previously held that an agency's decisions regarding the scope of its jurisdiction should not receive Chevron deference, distinguishing .jurisdictional questions from other questions of statutory interpretation. (5) In an opinion authored by Justice Scalia, the Supreme Court rejected that view, holding that "judges should not waste their time ... decid[ing] whether an agency's interpretation of a statutory provision is 'jurisdictional' or 'nonjurisdietional.' Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency's assertion of authority, or not." (6) And with respect to that question, Chevron applies and the agency receives deference]

Arlington is potentially significant, however, less for its holding than for its dialogue between the majority opinion and the concurrence and dissenting opinions. Interestingly, neither the concurrence by Justice Breyer nor the dissent by Chief Justice Roberts takes issue with the majority's resolution of the question presented. (8) None of the Justices believed that a distinction should be made between jurisdictional and nonjurisdictional questions. Nonetheless, the ease produced heated disagreement among the Justices, tracking a long-running battle over a different question: whether, prior to invoking Chevron deference, a court must first make a separate judicial determination that Congress intended to delegate to the agency the power to interpret the particular statutory provision at issue. (9)

According to Justice Scalia and the majority, when Congress has conferred general rulemaking authority to an agency to administer a statute, and the agency has promulgated its interpretation of the statute through notice-and-comment rulemaking or adjudication, then Chevron applies and the agency should receive deference for its resolution of any ambiguity in statutory language, (10) However, according to Justice Breyer and the dissenters led by the Chief Justice, before deferring under Chevron, a court must first ask whether--notwithstanding Congress' general conferral of rulemaking authority--Congress intended to delegate to the agency the authority to interpret the particular statutory provision. (11) If so, then Chevron applies and the agency's interpretation receives deference. (12) If not, then a court must use the tools of statutory interpretation to divine Congress's intent as best it can, informed by the agency's view only to the extent that the court finds it to be persuasive. (13)

The difference in these two approaches can be traced back to Chevron itself and the initial administrative law cases following it. Arlington is potentially significant because it could be read to resolve that long-running dispute in favor of Justice Scalia's expansive view of agency authority. Such a resolution could have significant consequences for administrative law. in many cases the difference in approach may not matter to the outcome (here, for example, Justice Breyer found that Congress had intended to delegate to the agency interpretive authority over the provision at issue, and thus, he too applied Chevron); (14) however, in some cases the difference in approach will matter. …

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