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Thursday, May 19, 2005

Flagging Deference
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There's already been much astute commentary on this blog by my colleagues about the DC Circuit's recent decision in the broadcast flag case, American Library Ass'n v. FCC. Slow reader that I am, I'm too late to say much.

But I will say--with my administrative law hat on--one thing that struck me about the decision was the way the court treated the always looming issue of Chevron deference. This is the Supreme Court decision that requires courts, in the absence of clearly expressed congressional intent, to defer to reasonable agency interpretations of statutes. In the broadcast flag case, without saying so in so many words, the court indicated that less deference is due to agencies regarding interpretations that go to the breadth of their own jurisdiction, rather than, say, an ambiguous statutory term. That is what all the "delegated authority" talk was about.

In ALA, the issue was whether the FCC could exercise its ancillary jurisdiction under Title I of the Communications Act to require DTV receivers to contain digital code. Drawing a line between "jurisdictional" questions and other questions of statutory interpretation is often not easy. In some sense, most questions of interpretation invoving administrative agencies can be framed (or reframed) in terms of whether there was a "delegation of authority" to act in the way the agency acted.

But when the agency explicitly relies on an assertion of ancillary jurisdiction to reach out and regulate a new, previously untouched activity a somewhat different type of interpretative question is raised than, say, when the interpretation of definitions such as "telecommunications" and "information servies" in the Brand X case or "impairment" in the TRO litigation saga is put at issue. Judicial deference to the agency's interpretation seems more fitting in the later instances in which the agency's expertise arguably is more usefully brought to bear than the former, in which the agency may have a instinctive self-interest in extending its jurisdiction to a new area. I think that is one import of the ALA decision. (I am not suggesting here that the FCC was acting out of any malevolent self-interest in trying to expand its regulatory reach. Quite the contrary. I am only suggesting the existence of a natural bureaucratic impulse.)

The question of the application of Chevron to agency jurisdictional interpretations is a vexing one, and the insight above is not original. In an article in the 1999 Cardozo Law Review by Ernest Gellhorn and Paul Verkuil entitiled "Controlling Chevron-Based Delegations", these two leading administrative law scholars wrote: "When agency-self interest is directly implicated, such as when it must decide whether an area previously unregulatedby the agency should now come within its jurisdiction, the justifications for deference fade...It is here that concern about agency aggrandizement is at its highest."

PS--One of the co-authors, Ernie Gellhorn, unexpectedly passed away last week. He was a good friend, and as one of my predecessors as chair of the ABA's Administrative Law Section, a long-time and valued colleague. He leaves a large legacy in all areas that touch on how administrative agencies function in our system of government.

posted by Randolph May @ 10:44 AM | Broadband , Communications , Digital TV

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