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Wednesday, April 07, 2010

Does the Comcast decision suggest a new distrust of federal agencies?

Some of my students in Administrative & Regulatory State were excited about the D.C. Circuit's opinion in Comcast v. FCC, thinking that the court might say something general about judicial attitudes towards administrative agencies. Alas, the opinion says very little explicitly about administrative law, instead discussing concerning three SCOTUS opinions construing the 1934 Communications Act. But perhaps there is one slightly more general lesson to be gleaned from Comcast -- evidence of a new albeit implicit distrust of federal agencies' more grandiose claims to power. The evidence takes the form of judicial silence: The D.C. Circuit said nothing whatsoever about Chevron deference. Instead, the Court roughed up the FCC for contradicting its earlier position on the scope of section 706 of the '96 Telecomm Act (page 31), treating the agency to a State Farm-style "hard look" rather than Chevron-style respect.

Why no discussion of the question of deference? The court did not say, so we can only speculate. One might argue, for instance, that the FCC was denied deference because it was was trying to enlarge its own jurisdiction by broadly construing its ancillary powers. Although some scholars like Jonathan Adler have plugged this position, defining the "jurisdictional" exception to Chevron deference has always been a headache, given that deference to agency interpretations always enlarges agencies' power. One might also speculate that the court was suspicious of the FCC's use of adjudication rather than notice-and-comment rule-making to assert power over internet service providers. The FCC has issued a 107-page notice of proposed rule-making to deal with net neutrality and, indeed, has just extended the comment period to April 26th for comment on the BitTorrent decision. At oral argument, there were a lot of testy questions from the panel about whether Comcast was injured by the FCC's BitTorrent ruling, despite the absence of fines, questions perhaps suggesting some uneasiness from the panel about using retrospective adjudication to announce major policy changes. Of course, this uneasiness does not sit well with the standard Chenery notion that the agency can choose its regulatory weapons, selecting adjudication or rule-making as its fancy pleases.

But perhaps those standard notions need to be revised. In decisions like Wyeth v. Levine,Altria Group v. Good, and Cuomo v. Clearing House Ass'n, SCOTUS seems to be exhibiting a growing impatience with agency claims of expertise and impartiality. If this is a correct assessment of the mood at SCOTUS -- admittedly, a speculative hypothesis -- then one might also speculate that this skeptical attitude is spreading to the E. Barrett Prettyman Federal Courthouse. In any case, I was a bit surprised by the total absence of any discussion of Chevron in the court's opinion, given that the Free Press/Open Internet intervenors made a big deal about Chevron in their brief and given that Chevron has played large role in sustaining the FCC in opinions like the Verizon customer retention case. The court seems to be demanding a lot of reason-giving from the FCC: It would be nice if the D.C. Circuit would impose the same duty to give reasons on itself and explain whether and why they are suspending Chevron deference.

Posted by Rick Hills on April 7, 2010 at 10:58 PM in Current Affairs | Permalink


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Posted by: David Hill | Jun 29, 2010 9:15:12 PM

I should add that the FCC's brief discussed Chevron and the proper standard of review at pages 24-25. All the odder, then, for the Court simply to ignore the issue in its opinion.

Posted by: Rick Hills | Apr 8, 2010 11:50:54 AM

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