To Defer or Not: Determining When and Why Courts Support FCC Expertise and Decision Making Authority

Posted: 22 Mar 2014

See all articles by Rob Frieden

Rob Frieden

Pennsylvania State University - Dickinson School of Law; Pennsylvania State University, Bellisario College of Communications and Penn State Law

Date Written: March 21, 2014

Abstract

The Federal Communications Commission (“FCC”) has achieved a mixed record when reviewing courts decide whether to affirm a decision based on deference to the Commission’s expertise. Generally courts prefer not to “legislate from the bench,” or make policy decisions. However courts have to determine whether a regulatory agency has statutory authority to act. Where it does not appear obvious, regulatory agencies still may justify acting based on a reasonable interpretation of ambiguous language. Regulatory agencies like the FCC often have to make decisions based on cases and controversies involving new technologies and conflicts not anticipated by the organic statute creating the agency and conferring authority to act.

This paper will examine several decades of appellate cases involving FCC decision making with an eye toward identifying factors that support judicial deference and other factors where courts are less deferential. Such predictive variables do not guarantee a particular judicial outcome, but can provide a template for assessing what the FCC must do to pass muster with reviewing courts.

The paper identifies factors favoring deference including instances where the FCC opts to deregulate, addresses technologically complex issues and provides proof that it compiled a comprehensive evidentiary record. On the other hand, courts frequently second-guess the FCC and reject its expertise particularly when the Commission seeks to expand its regulatory wingspan, courts can use analogies and other strategies to understand technological complexity and litigants can credibly show that the Commission generated a flawed evidentiary record.

The paper will examine appellate cases involving challenges to FCC authority and decision making with an eye toward specifying factors that can help predict whether a reviewing court will defer to the Commission’s expertise.

Keywords: judicial deference, regulatory agency expertise, jurisdiction, information services, next generation networks

JEL Classification: K23, L82, L96, L98

Suggested Citation

Frieden, Rob, To Defer or Not: Determining When and Why Courts Support FCC Expertise and Decision Making Authority (March 21, 2014). Available at SSRN: https://ssrn.com/abstract=2412526

Rob Frieden (Contact Author)

Pennsylvania State University - Dickinson School of Law

Lewis Katz Building
University Park, PA 16802
United States

HOME PAGE: http://www.personal.psu.edu/faculty/r/m/rmf5/

Pennsylvania State University, Bellisario College of Communications and Penn State Law ( email )

102 Carnegie Building
University Park, PA 16802
United States
814-863-7996 (Phone)
814-863-8161 (Fax)

HOME PAGE: http://www.personal.psu.edu/faculty/r/m/rmf5/

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