Supreme Court Takes Up Battle That Could Thwart FCC, Other Agencies

The Supreme Court on Monday agreed to hear an appeal in a dispute over agencies' ability to issue enforceable regulations.

The decision, which will likely come in 2024, could affect a wide range of current controversies -- including whether the Federal Communications Commission can craft broadband regulations.

The new Supreme Court case involves how federal court judges should evaluate decisions made by agencies.

A 39-year-old Supreme Court precedent broadly requires judges to accept agencies' interpretations of ambiguous laws, provided that the interpretations are reasonable.

That principle, known as “Chevron deference,” has increasingly come under attack by conservatives.

The case, accepted on Monday, presents a direct challenge to Chevron deference. The specific dispute involves four fishing companies' objections to a National Marine Fisheries Service rule requiring them to pay for monitors.

The fishing companies argued that the National Marine Fisheries Service lacked authority to impose that requirement. An appellate court sided against the fishing companies, on the grounds that Chevron required judges to defer to agencies' reasonable interpretations of ambiguous laws -- in this case, the Magnuson-Stevens Act, which requires some ships to allow onboard monitors.

The companies then appealed to the Supreme Court, where they are arguing that the 1984 Chevron ruling should be reversed.

If so, a range of companies -- as well as advocacy groups and individuals -- may find it easier to challenge agency decisions in court.

The Chevron deference has previously had a significant impact on decisions regarding net neutrality. Around 20 years ago, a Republican-led FCC declined to classify broadband as a telecommunications service. That move meant broadband carriers were not subject to the same common carrier rules that prohibit telephone companies from blocking calls based on content.

The FCC's decision led to a court case that reached the Supreme Court, resulting in a 2005 opinion upholding the classification by a 6-3 vote.

Justice Clarence Thomas wrote for the majority that the decision in Chevron “requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation.”

Justice Antonin Scalia authored a dissent in that case, writing that the FCC's interpretation of the Telecommunications Act was “implausible.”

“The Commission has attempted to establish a whole new regime of non-regulation, which will make for more or less free-market competition, depending upon whose experts are believed,” he wrote. “The important fact, however, is that the Commission has chosen to achieve this through an implausible reading of the statute, and has thus exceeded the authority given it by Congress.”

Ten years after that decision, the FCC reversed itself, classified broadband as a telecommunications service, and imposed some common-carrier regulations.

Two years later, the agency again changed course and categorized broadband as an information service.

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