Rules versus standards in City of Arlington v. FCC.

• Author: Deddens, Emily

In the 1984 case Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., (1) the Supreme Court created a two-step test for judicial review of agency decisionmaking. In the first step the court must determine whether Congress has clearly spoken to the issue under review; if so, Congress's interpretation is binding. (2) If Congress has not clearly spoken on the issue, then during step two a reviewing court must determine whether the agency's interpretation of the statute is permissible and defer to the agency's interpretation if it is. (3) Since Chevron, the Court has continued to define the circumstances under which this Chevron deference applies. One line of cases has created a "step zero," under which some questions do not qualify for review under the Chevron framework at all. (4) Another line of cases has created a "major questions" doctrine, exempting some particularly contentious issues from Chevron deference on the theory that Congress would have been explicit had it intended the agency to resolve such an important issue. (5) As a result, judicial review of agency decisionmaking no longer simply involves applying the Chevron two-step framework, but necessitates a multi-step, multifactor inquiry.

Last term, in City of Arlington v. FCC, (6) the Court took a step towards simplifying the Chevron doctrine. The Court granted certiorari on the question of whether Chevron deference applies when the agency is resolving a statutory ambiguity concerning the scope of the agency's own jurisdiction. (7) Determining that the same standard of review applied to both jurisdictional and nonjurisdictional questions, the Court found that Chevron deference applied. (8) In declining to create a separate category of review for jurisdictional questions, the Court breathed new life into the unadorned two-step process laid out in Chevron. In the debate over whether rules or standards are the more appropriate means for developing the rule of law, Arlington represents a victory for rules. When Arlington is considered in the context of preceding cases, it becomes clear that this decision contains an explicit choice of a rule over a standard.

1. BACKGROUND

   Section 332(c)(7)(B)(ii) of the Communications Act of 1934 requires state or local governments to act on applications for proposed tower or antenna sites by wireless networks within "a reasonable period of time" after the request is filed. (9) In 2008, an organization representing wireless service providers petitioned the Federal Communications Commission (FCC) to clarify the meaning of the phrase "within a reasonable period of time." (10) In a declaratory ruling, the FCC found that "lengthy and unreasonable" delays were occurring, which interfered with the provision of wireless services and competition, contrary to Congress's purpose in enacting the 1996 Act. (11) Accordingly, the FCC defined "a reasonable period of time" as 90 days for collocation applications, and 150 days for all other applications. (12)

   The cities of Arlington and San Antonio, Texas sought review of the Declaratory Ruling in the Court of Appeals for the Fifth Circuit. (13) The cities asserted that the FCC lacked the statutory authority to define "a reasonable period of time" (14) and challenged the specific timeframes chosen by the FCC as in conflict with the language of the statute. (15) The court first noted that there was a circuit split as to whether Chevron deference applied to an agency interpretation of the scope of its own jurisdiction. (16) The court nonetheless went on to apply Chevron, finding under step one that the statute was ambiguous as to the FCC's authority to establish time frames. (17) Furthermore, under step two the Fifth Circuit found that the FCC's interpretation of the statute--that the statute granted the FCC authority to establish time frames--was permissible. (18) The court also applied Chevron to the FCC's choice of 90 and 150-day time frames and found that it "pass[ed] muster." (19) The Supreme Court granted certiorari only on the question: "Whether ... a court should apply Chevron to ... an agency's determination of its own jurisdiction." (20)

2. THE OPINION

   The Supreme Court affirmed the Fifth Circuit's ruling. (21) Writing for the Court, (22) Justice Scalia found that "[n]o matter how it is framed, the question a court faces when confronted with an agency's interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority." (23) The Court found that in the agency context there is no meaningful distinction between jurisdictional and nonjurisdictional questions. (24) Both an agency's power to act at all and the way in which it may act derive from a congressional grant, and therefore "the question ... is always whether the agency has gone beyond what Congress has permitted it to do." (25) The Court went on to demonstrate that a small change in wording can make what is essentially the same question either jurisdictional or nonjurisdictional, concluding that "[t]he label is an empty distraction." (26) Therefore, the Court found Chevron analysis, and the resulting deference to an agency's permissible construction of the statute that it administers, appropriate when the ambiguity being interpreted concerns the scope of the agency's statutory authority. (27)

   Justice Breyer wrote an opinion concurring in part and concurring in the judgment. (28) He called for a more nuanced approach in determining whether or not Congress "has left a deference-warranting gap for the agency to fill." (29) There is a background presumption in Chevron that when...