Notice & Comment

The FCC (and Administrative Law) at the Supreme Court, October Term 2018

Over at Randy May’s Free State Foundation, I’ve posted a short essay that reviews the four major administrative law cases from this last Term and notes their potential implications for the FCC. Here’s the introduction:

The October Term 2018 was a busy one for administrative law at the Supreme Court, but not for the Federal Communications Commission (FCC), at least in terms of the agency’s direct involvement. In Kisor v. Wilkie, the Court preserved Auer deference to agency regulatory interpretations, yet reworked it in substantial ways. In Gundy v. United States, the Court rejected 5-3 yet another nondelegation doctrine challenge, but this time four Justices expressed interest, in the appropriate case, in revitalizing the doctrine, under which in its current incarnation even the Communications Act’s vague “public interest” standard has been approved.

And in Department of Commerce v. New York, the Court rejected the government’s attempt to add a citizenship question to the 2020 census, finding that the agency action would be permissible under the Administrative Procedure Act (APA) but for the fact that the agency’s proffered reason was pretextual and thus impermissible. Surprisingly, the FCC’s 2015 Open Internet Order, imposing public utility-like mandates on Internet service providers, made a cameo appearance in one of the census case opinions.

The FCC was not a party to any case this Term, but the fourth main administrative law decision of the Term, PDR Network v. Carlton & Harris Chiropractic, involved whether, in an enforcement proceeding, a party could challenge a decade-old FCC order that interpreted the Telephone Consumer Protection Act. The PDR Network case involves the Hobbs Act, under which review of many FCC orders are sought, so it has important implications for the agency.

This FSF Perspectives essay explores these four main administrative law cases from the Court’s October 2018 Term – all of which, in one way or another, implicate the FCC and its decisionmaking. And, as you will see, Kisor, Gundy, and PDR Network all involve separation-of-powers principles that undergird the proper relationship among courts, Congress, and the agencies, including the so-called independent agencies like the FCC.

The full essay is here.

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