Mintz Attorneys Anticipate Many FCC Challenges in Post-Chevron World

While FCC rules aren't under immediate legislative threat, more frequent court challenges to its decisions are likely in a post-Chevron world, said wireless and wireline attorney Scott Thompson. He said that companies assume their processes and policies are within FCC guidelines, but now “the courts have been given a toolbox to potentially attack agency decisions.” For example, SEC v. Jarkesy could dramatically reduce the FCC's punitory actions. Thompson said that because the commission lacks statutory authority, it could be considered unconstitutional under Jarkesy for it to enforce actions without a civil suit in federal court.

Expect more litigation on matters that have widely been within FCC authority, such as spectrum reallocation, wireless lawyer Angela Kung said. Pointing to reallocation cases involving the 5.9 GHz and 6 GHz bands, she said that while the courts have deferred to the FCC previously, they might not do so post-Chevron. Kung suggested parties seeking the FCC to repurpose spectrum might want to reach out to incumbents to address issues so the FCC doesn’t have to do so.

Kung said that once the FCC's auction authority is reinstated, it might see challenges to its spectrum auction policies, such as bidding credits and spectrum reserves aimed at fostering competition.

Every record and proceeding must be treated as if there will be an appeal, communications lawyer Daniel Reing said. Should your client want FCC action, “arm the commission and help them respond to everything, every hypothetical that comes up,” he said. For those seeking to prevent FCC action, Ohio opens the door to throwing everything into the argument, as the agency has to address it all, Reing said.

The FCC seemingly had "some inkling" that the Supreme Court might do something with Chevron,” Thompson surmised. Noting Chevron wasn't cited much in recent briefs, he said that the FCC might have tailored its work to a post-Chevron world, “justify[ing] the commission's action" in a way that fits with Loper Bright.

Attorney Reing said the Corner Post ruling shouldn't affect most FCC decisions because “the court noted that it doesn't apply to actions brought under the Hobbs Act.” Thompson supported the idea that FCC rulings were immune to Corner Post fallout because the Hobbs Act “grants the courts of appeal exclusive jurisdiction to enjoin, set aside, suspend or determine the validity of all final orders of the FCC.” However, Thompson noted that the court might take a dim view of Hobbs because it “is in the sights of the Supreme Court.”