There are numerous threats to the FCC’s regulatory jurisdiction through lawsuits. One of the newest ones is a case at the Supreme Court that could be a threat to all federal regulatory agencies.

The case in front of the Supreme Court comes from a dispute between herring fishermen in New Jersey and the National Marine Fisheries Service (NMFS), which is an arm of National Oceanic and Atmospheric Administration (NOAA) at the U.S. Department of Commerce. For years, the agency has mandated that fishing vessels must make room for federal monitors, but in recent years, it decided that the fisherman also had to cover the salaries of the inspectors. The fisherman appealed this at the NMFS and lost in a case decided by a DOC administrative judge.

The fishing companies appealed the loss to District Court, and the Court ruled for the government. Two of three judges in the D.C. Circuit Court said the NMFS was justified in believing it has the authority to force fishermen to pay for inspectors. However, a dissenting judge said there was no explicit language in any existing legislation that allowed for the NMFS decision.

At the Supreme Court, the fishermen are claiming that the Court’s decision “authorizes agencies to force the governed to quarter and pay for their regulatory overseers without clear congressional authorization.”

A win for the fishermen at the Supreme Court directly challenges the way that all federal regulatory agencies like the FCC operate. The FCC hears disputes using administrative judges in a setting that is the same as other courts. Regulatory agencies have used this process for the last century to allow for judges who are experts in the issues being adjudicated. In fact, federal courts routinely remand lawsuits back to federal agencies like the FCC so that trials involving highly technical issues can be heard by a qualified administrative judge.

There are a lot of practical reasons why a decision in favor of the fisherman could cause havoc. Courts around the country are already jammed with lawsuits, and tossing large numbers of agency cases into open court will cause huge delays when already crowded dockets get massively overloaded.

This also would mean that the judges hearing highly technical cases won’t already understand the issues being brought before them. That will require judges to take the time to understand the issues, but also will likely mean a lot of incorrect rulings from judges who didn’t fully understand the nuances of a technical case. At the FCC, the cases that make it to administrative judges involve issues like disputes between carriers, disputes over adherence to pole attachment rules, cases involving spectrum, and many other highly technical issues.

What’s really on trial here is the ability of Congress to give jurisdiction to a regulatory agency. Some of what the FCC does comes from specific direction of Congress in legislation. But a large percentage of the things the FCC tackles are derived from the overall right that Congress gave it to regulate communications industries when the agency was established. A ruling in favor of the fisherman might mean that all federal agencies can only regulate those specific issues given to them directly in regulation.

As much as the telecom industry hates being regulated, it does not want an FCC that cannot act. This would probably kill the Universal Service Fund. It would mean no 5G auction next year to build more cell sites. It might mean the FCC can’t choose the operating characteristics of new spectrum. It might mean that a large majority of past rulings will eventually be reversed in courts, one by one – including the ones that carriers like. Nobody wins by eliminating highly qualified administrative judges from hearing technical cases.

National Oceanic and Atmospheric Administration (NOAA) at the U.S. Department of Commerce.