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Chevron Questions

Top FCC Litigators See 6 GHz, Environment Health Cases as Most Important Decisions Last Year

Two top litigators in the FCC Office of General Counsel think the U.S. Court of Appeals for the D.C. Circuit’s December decision upholding the FCC’s 6 GHz order (see 2112280047) and a decision by the same court remanding the FCC’s 2019 RF rules to the agency for further work (see 2108130073) were the two most important recent court decisions affecting the FCC. The two spoke during an FCBA webinar Friday. A top administrative law expert said the Chevron doctrine is in doubt, but still not dead.

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To survive review an order “has to be generally reasonable and be reasonably explained,” said Jacob Lewis, chief of the OGC Litigation Division. Similar to the rule in school tests, “it’s not enough to show the answer, but it’s important to show the work,” he said.

The 6 GHz decision was “the commission’s success story,” said Sarah Citrin, deputy chief of the division. The D.C. Circuit recognized that issues like how active a Wi-Fi router will be are “exactly the kind of technical question on which the FCC deserves deference,” she said. “It’s in our wheelhouse of analysis and expertise,” she said.

If any of you in the audience are going to bring these cases, you should bring your best arguments, because really we can expect the commission to get the most deference … in orders that implicate something like spectrum management,” Citrin said. Spectrum management “involves policymaking, technical and predictive judgments, and courts simply aren’t well positioned to second guess those kinds of judgments,” she said. But the decision “has to be reasonable, and it has to be reasonably explained,” she said.

You need to bring your ‘A’ game if you’re challenging the commission on harmful interference,” Lewis said. “Figuring if something is a serious risk of harmful interference is not the kind of thing that is ordinarily intuitive to the courts,” he said: AT&T “brought their ‘A’ game” in challenging the 6 GHz order and still lost, he said.

Citrin said the remand in Environmental Health Trust v. FCC was a “cautionary tale” for the agency. The commission “relied heavily” on expert advice by the Food and Drug Administration and other health experts that there was no need for changes to earlier RF rules, she said.

The D.C. Circuit’s decision in the EHT case opened with a statement expressing deference to FCC expertise, Citrin said. “The court also emphasized that when an agency is confronted with evidence that calls into question the underlying factual premises of the rule, the agency has to offer more than mere conclusory statements to justify the rule,” she said: “That was … really important to the court’s analysis of the many issues and challenges to the order in the case.”

The case “sort of illustrates a situation that the commission doesn’t often, but sometimes does, confront” where the opinions of another expert agency are relevant, Jacobs said. That’s particularly true in RF exposure issues, which raise health concerns, he said. The FCC “had for many years relied on the FDA, or other health and safety agencies’ determination that the guidelines were protective,” he said.

The burden on the FCC was to “prove a negative, which is always a more difficult task,” Citrin said. “That certainly complicated” the FCC’s work, she said. The court decided the FDA’s “statements were at bottom conclusory” and “none of them explained the factual basis for the FDA’s comfort with the existing exposure lines,” she said. “The court said the FCC had a burden to do something more” and couldn’t just “hitch its wagon to the FDA,” she said. That burden puts the FCC “in a tough position” when it has to rely on expertise from other agencies, she said.

The FCC “is not a health and safety agency, even though it has considerable expertise with regard to radiofrequency propagation,” Jacobs said: “Once the commission is sort of either at the edges of the Communications Act, or with one foot in the Communications Act and maybe another foot somewhere else, that’s when things get a little more difficult.”

Chevron In Doubt

Columbia University law professor Thomas Merrill told FCBA the future of the Chevron doctrine under the current Supreme Court remains unclear (see 2206150059). “At this point in time, it’s quite obvious that Chevron has, at least in some instances, produced regulatory instability,” he said. “Some people, including some justices, have been increasingly uncomfortable” with the doctrine, he said.

SCOTUS stopped relying on Chevron in 2016, following the death of Justice Anton Scalia, Merrill said. Most likely “the court just can’t agree with what to do about Chevron,” he said. The remaining three justices appointed by Democratic presidents, Stephen Beyer, Sonia Sotomayor and Elena Kagan, “probably would like to keep something like Chevron around,” he said: “They think the administrative state is generally a good thing that needs some running room and needs some flexibility.”

Justice Clarence Thomas has said since 2015 he thinks Chevron is probably unconstitutional, Merrill said. Justices Neil Gorsuch and Brett Kavanaugh “both made critical noises against Chevron before they were appointed to the court by the [Donald] Trump administration and I don’t think that’s a coincidence,” he said. The other judges are “uneasy” about overruling Chevron, since it was applied so often in the past. “It would seem to be rather difficult to write an opinion explaining how the court had applied a doctrine in 100-plus cases and then suddenly discover that it was demonstrably erroneous,” he said.