Winnik panelists discuss Loper Bright's influence on FCC rulemaking

Agency Determinations Carry Less Weight

Understanding the effects Loper Bright requires understanding Strip. Strip The doctrine involved a two-stage analysis. First, courts asked whether Congress had spoken clearly about an issue in a particular law. When Congress did not speak clearly, courts decided whether the agency’s interpretation of the statute was reasonable. Loper Bright It rejected this framework, shifting authority from institutions to the courts. Stempel instead explained: Strip Courts conducting “two-step” reviews will now conduct a new review of agency rules to determine whether the agency’s interpretation of the underlying law is the “best” interpretation. A reasonable agency interpretation is no longer sufficient to withstand a legal challenge if it is not also the best. As a result, institutions may be less likely to succeed in the face of challenges to their interpretation of ambiguous legal authority. However, he also observed: Loper Bright It will not affect many other areas of administrative law, including questions involving institutions’ factual determinations or procedural shortcomings.

Loper Bright Doesn’t Open the Floodgates, But Cases Will Increase

While most observers expect cases to increase Loper BrightIt may not be a flood as some predicted. Power noted that the Supreme Court has made efforts to clarify that previous decisions were upheld within this framework. Chevron’s The second step is subject to stare decision, so courts should not overturn decisions simply because the decision is based on the decision. Strip.

Time will tell how the case will develop. Courts will need to address new questions about when and how parties can ask courts to reconsider prior decisions that support reasonable agency interpretations on the grounds that the prior decisions are not the best interpretation. Stempel also warned: Loper Bright It introduces uncertainty into the case, as well as an element of certainty that may cause potential plaintiffs to question whether the case is worth it. In the past, it was possible for an institution to adopt a new or different “reasonable” interpretation as circumstances or institution leadership changed. The issue will now be resolved once the courts reach a final decision on the “best” interpretation of the law.

Important Questions Doctrine Will Still Be a Limiting Factor

The Big Questions Doctrine emerged in part because courts were uncomfortable with its implications. Strip Respecting the agency’s reasonable interpretations when policies address issues of “broad economic and political importance.” As a result, the Supreme Court said that a “clear explanation” from Congress was necessary under the circumstances. Both Power and Stempel expect the Big Questions Doctrine to play a similar role in the future. Even if the courts decide that the best interpretation of statutory delegation is the agency rule, courts may still ask whether Congress has given the agency express authority.

Rule Making Effects

After all, Loper Bright It’s likely to influence how agencies like the FCC conduct the rulemaking process. Stempel suggested that agencies could pay more attention to legal analysis in the rulemaking process. At the FCC, this may require earlier intervention by the FCC Office of General Counsel. Commenters will want to raise legal issues in their comment letters and base their positions on textual arguments to ensure that the FCC has sufficient information to consider and address difficult legal questions during rulemaking. In other contexts, agencies may use informal guidance more frequently because formal notice-and-comment rulemaking no longer carries the benefit of invoking rules. Strip respect.

Better Legislation

Loper Bright It increases pressure on Congress to provide clearer legislative mandates, but this is much easier said than done. In addition to general political polarization, Power noted that the legislative process contains inherent, structural challenges that often make it difficult for Congress to enact clear laws. For example, to ensure passage of a law, Congress may accept some uncertainty, expecting an agency to work out the details during rulemaking. Legal uncertainty can also arise from changing circumstances, since Congress cannot always predict how the authority granted to an agency may need to be used in the future. This is especially true in areas under the FCC’s jurisdiction, where technology is constantly evolving. Congress may be tempted to rely on more open delegations with broad authority, but this approach has also been subject to objections under the nondelegation doctrine.

What’s Next?

The litigation push could start with consumer advocacy organizations rather than the industry. Monitoring defense cases will be important. The industry may also see opportunities to intervene to bolster established rules to maintain stability.
Loper Bright digital discrimination will likely be a factor in legal challenges to various FCC rules, including net neutrality and data breach proceedings.