A Supreme Threat to the FCC

Carl Weinschenk

It is foolhardy for a non-lawyer to wade too deeply into discussions of cases being heard by the Supreme Court. But it is important for non-lawyers to be aware of the issues before the highest court in the land. What happens affects us all.

Broadcasting & Cable and JD Supra report on a case called City of Arlington v. FCC. The decision will have profound ramifications on the control that can be wielded by The Federal Communications Commission (FCC) and other federal agencies.

Essentially, the question is whether the regulatory authority itself, the FCC, in this case, controls the extent of its authority, or if those limits, which flow from Congress, are maintained by the courts.

The case involves the city of Arlington, Texas. To cut to the chase, not get lost in the tall weeds, get to the bottom line and otherwise not spend a lot of space detailing the situation: In 2009, the FCC made decisions regarding land use for cell towers in several cities, including Arlington. The cities objected and said that the FCC didn’t have authority to make those decisions. The FCC responded that it gets deference in matters of authority. The Court of Appeals for the Fifth Circuit found for the FCC.

The Supreme Court is hearing an appeal. Everybody agrees that the FCC is given deference in the fields in which they operate. For example, the FCC found that LightSquared’s LTE plans pose a threat to GPS communications and ordered the approach in question to not be used. That finding is given great, if not overwhelming, weight by the courts if LightSquared sues. The FCC, after all, is recognized as the experts. In language more familiar to the technical community: The default setting is that the arguments made by the party that gets deference are accepted.

The case the Supreme Court will hear is whether the administrative agency – again, the FCC in this case – should be deferred to in a similar fashion in determining the limits of its jurisdiction. In other words, the question is not if the FCC’s engineers did the tests correctly, but if it has the power to proclaim that it is empowered to stop LightSquared.

This, apparently, is an open question. This is how the conservative Cato Institute, which filed an Amici Curiae brief, explained, according to a synopsis posted at JD Supra:


…[T]he Court has not said whether agencies should be granted similar deference when determining their own jurisdictions.

The FCC’s power would be greatly curtailed if it lost. Broadcasting & Cable reports on the unsurprising position of Verizon Wireless:

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.

If a Constitutional lawyer professor or a judge accidentally reads this post, I may get a note thanking me for not going to law school. It is clear even to me, however, that this case is a significant threat to the FCC’s power, especially in an era of a corporate-friendly Supreme Court. The telecom and IT industries should carefully watch how it unfolds.



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