You might have heard that the Supreme Court recently made a ruling that will have a huge impact on federal regulators like the FCC. The case was Loper Bright Enterprises v. Raimondo and involved a suit by a New England fishing company against the National Marine Fisheries Service (NMFS), a federal agency.
The suit came from a dispute where federal rules required that fishing boats carry a government-appointed inspector onboard to monitor that fishermen aren’t catching fish over limits set to protect against overfishing. The plaintiff, Loper Bright, went to court to argue that it shouldn’t have to pay the cost of the inspector, about $700 a day. A district court agreed with the NMFS, and a federal appeals court affirmed the lower court decision. Loper Bright appealed to the Supreme Court, which accepted the case in May 2023. The Supreme Court recently ruled in favor of the fisherman, saying that the NMFS didn’t have explicit direction from Congress to require fisherman to pay for inspectors.
This ruling is being seen as the end of the Chevron deference, which was established by a Supreme Court ruling in 1984 in Chevron U.S.A. v. Natural Resources Defense Council. The Chevron deference basically said that federal agencies should get to make policy decisions that fit within their overall mandate from Congress. For the last forty years, this case would have been resolved as the district court and appeals court handled it. The courts have assumed that Congress is not required to micromanage agencies and specific industries rules like the inspector fees. Courts have concluded that the experts at federal agencies know best how to interpret Congress’s intent.
This ruling will have several consequences for agencies like the FCC. The ruling is a huge win for the big ISPs and cable companies that the FCC regulates. If those companies don’t like an FCC decision, they just have to claim that the FCC doesn’t have the specific authority to make the ruling – and the chances are that they will be right. Agencies like the FCC create regulations based on broad guidelines given to them by Congress. Congress does not dictate the minutiae of the dozens of issues the FCC considers every month. For Congress to do so would largely eliminate a reason to even have an FCC.
As ISPs challenge FCC rulings, courts are likely going to put FCC ruling on hold. There will be a huge flood of such suits being filed against all federal agencies, and these new cases are going to pile up in the courts and take years to clear. Even if an agency like the FCC is deemed to have had the authority for a specific ruling, it may take years to go into effect until the courts settle the matter. This new interpretation by the Supreme Court means a lot of FCC rulings are going to be blocked by the courts due to the agency not having the specific authority for a given decision.
One way to clear the mess this would be for Congress to pass more specific laws. In this case, Congress could pass a law allowing the inspectors and fees, and the issue would be settled. An active Congress could clear cases out of the courts by approving the regulations that are being challenged. But that’s not realistic for several reasons. Congress has been largely ineffective for a number of years as partisan politics have blocked most laws from even being considered. From a more practical perspective, there are dozens of federal agencies that make decisions about a wide range of important issues all of the time, and intervening in all of them would bog Congress to doing little else.
There is a second interesting option. At least for the issues that the FCC regulates, States could aways get into the fray. States have generally been given leeway to regulate anything that is not being done by the FCC – and that could turn into a big list after a few years. Any challenges to States would likely involve State’s rights rather than regulatory agency authority.
It’s not hard to imagine the law departments at the big ISPs getting ready to pounce on any FCC decision they don’t like. It’s hard to think that this ruling won’t eventually result in agencies like the FCC being hamstrung and paralyzed, unable to make decisions.
Oh my …. ‘the sky is falling.” Or will it just seem like it?
Most downpours only last a short time. And everybody needs the rain.
‘My take’ is that the Chevron Deference has… across multiple agencies… resulted in some (too many??) imperious agency decisions that did not benefit the whole public but mostly just served specific political interests and big business interests who had deep political connections. Surely the FCC’s history of tectonic shifts in policy has upset many people — both ways.
Let’s wait and see if the Supreme Court was wise in reading the Constitution to rule in a way that will nudge Congress and the Agencies and the States to settle into a new equilibrium and not flood the courts or skew the balance too far for too long.
Does that mean Congress will start micro-managing everything? [yeah sure– cough cough] Or will it not act in any useful ways at all? [We can hope this doesn’t happen.] Arguably nothing holds much promise of a better middle ground of consensus than the death of Chevron because in the realm of telecommunications it is a mess. Just like life in general, everything is a mess, from a tolerable little mess to an terrible big mess.
On the other hand, unless and until the hatred and name calling and baseless accusations and outright lies diminish the only expectation is chaos,
Sometime it takes a lot of chaos for enough voters to send cool elected heads to forge better laws to set a clearer course for agencies — one where nobody wins and everybody is slightly unhappy with the compromise. I just hope the wait is short.
PS… Doug. I don’t expect this post to pass the ‘moderator’ test but my impression was that your post tilted a bit too far. — Brian
I can’t see the big ISPs passing on the opportunity to use this to try to put regulations they don’t like on hold. It probably doesn’t even matter if they win cases in court – filing a Chevron case against a regulation they don’t like probably puts that FCC rule on the shelf for four years. For ISPs that’s a victory.
Do regulatory agencies go too far – sure. The folks that forced this particular case to the Supreme Court picked it because forcing regulated folks to pay $700 per day for inspectors sounds like a ruling that went way too far.
But this is a tool that benefits regulated industries, and it’s hard believing that big ISPs, or their trade associations won’t use the tool to gum up the works.
We’ll have to see which one of us is right – but I’m voting that the big regulated companies in every regulated industry won’t be able to resist using this ruling to make regulator’s lives miserable. It’s certainly possible they won’t this because of the long term consequences, because filing Chevron cases is going to war with regulators – who likely will get them back in the long run. But I’ve never seen any restraint in the telecom industry, particularly from the trade associations.
As an aside, the plaintiffs filing against net neutrality in the sixth circuit updated their filing yesterday based upon the end of the Chevron deference.
It’s certainly possible we’ll see regulations challenged. But the burden lies with petitioners to meet the following tests to put a regulation on hold: 1) the plaintiff’s likelihood of prevailing on the merits;(2) a showing of irreparable injury to plaintiff if relief is not granted; (3) the threatened injury to the movant is demonstrated to outweigh whatever damage the proposed injunction may cause the opposing party; and (4) the balancing of equities.
https://www.law.cornell.edu/wex/injunction
If the statutory authority is clear and unambiguous or a regulatory agency is explicitly delegated authority to adopt rules, they won’t meet the first test and the regulation will stand.
Re the FCC’s Open Internet rulemaking, it stands in large part on National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005) which the USSC left intact in Loper Bright.
“Re the FCC’s Open Internet rulemaking, it stands in large part on National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005) which the USSC left intact in Loper Bright.”
It’s possible we could see this case come back to the USSC wherein the petitioners argue “in light of” Loper Bright, Brand X should be disapproved.
I fully concur with Brian. Loper Bright has been overstated in terms of impact, leading one to believe the entire executive branch of government — responsible for enforcing statutes Congress and the President enact — has been neutered.
I read Loper Bright as the USSC telling Congress to do a better job and avoid writing sloppy statutes that are ambiguous and invite litigation that ties up the courts. When they are clear, those challenging executive branch agency administrative law will face a high hurdle to block them with injunctive relief since they would be unlikely to show they can prevail on the merits.