The End of Chevron Deference: Loper Bright and the Future of Spectrum Regulation

By Randy Cantz and Yaegy Park

While the Supreme Court’s Loper Bright decision sent shockwaves through administrative law circles, the FCC’s spectrum authority remains solid—at least for now. The Commission’s power is firmly grounded in explicitly broad statutory mandates, most notably in Sections 151 and 303 of the Communications Act of 1934, which grant the agency broad oversight over wire and radio communication. Courts have consistently recognized the FCC’s unique technical expertise in spectrum management. While some observers have acknowledged that, following Loper, “the FCC likely will face even more stringent judicial review” on issues including Net Neutrality and authority over outer space activities, the agency’s spectrum authority is relatively unambiguous, firmly rooted in statute, and will stand today just as it has under Chevron. The FCC’s successful and long-standing role in managing spectrum, underscored in recent 5.9 and 6 GHz court challenges, has established a precedent that courts are likely to continue respecting. While Loper Bright may prompt the FCC to provide clearer justification for its spectrum decisions, it is unlikely to fundamentally alter the agency’s approach to spectrum management.

The Loper Bright Decision

The Loper Bright decision represents a watershed moment in administrative law. The Court’s decision overruled the Chevron doctrine in which courts deferred to an agency’s “reasonable interpretation” of an ambiguous regulatory statute. This deference to agencies would stand, according to legal experts Sarah Bardeen and Brian Gray, “even if a court—left to its own devices—would interpret it differently.” Consequently, the decision gives courts more latitude to use “independent judgment” when deciphering the meaning of statutory provisions, with sweeping implications for the telecommunications industry as a whole. While courts are encouraged to “seek aid” from agency interpretations, ultimately, they must “independently” interpret statutes using “traditional tools of statutory construction” to uncover the “best meaning” of a statute. Indeed, the Court explicitly stated that “courts, not agencies, will decide ‘all relevant questions of law’ arising on review of agency action,” rejecting arguments that federal agencies have unique expertise to resolve legislative questions within the agency’s remit. As lower courts interpret Loper’s implications, one notable result, according to the law firm Holland & Knight, may be a “rush of litigation to test the new limits of agency deference, develop new precedent and likely revisit, at least in part, existing precedent.” The full implications of Loper Bright will likely be sorted out in years to come, but for now, the case represents a significant shift in how courts review agency actions, including those of the FCC.

Implications for Spectrum Regulation

Despite the broader changes throughout administrative law, the Court’s decision in Loper Bright likely has minimal implications for spectrum regulation. While the FCC could be challenged on ambiguous policies and spectrum regulations unsupported by statutory language, its spectrum authority is firmly rooted in Sections 151 and 303 of the Communications Act of 1934. Among other powers, the Act grants the Commission the ability to not only regulate “wire and radio communication,” but also to “classify radio stations” and “assign bands of frequencies to the various classes of stations.” Leading experts in the field have affirmed that Congress granted the FCC broad discretionary powers throughout the Communications Act. Adam Crews, Professor and former appellate attorney in the FCC’s Office of General Counsel, argues in Promarket that the FCC’s discretionary authority is expressly broad and hinges on the concept of “public interest.” In his article, Crews cites a Sixth Circuit decision, which “expressly give[s] the FCC the power to ‘fill gaps in Congress’s regulatory scheme.’” He explains that this is “the exact function that Chevron served when it presumed that Congress wanted agencies to have gap-filling authority.” Importantly, Crews makes clear that “the FCC doesn’t need Chevron’s presumption to fill gaps because it often has Congress’s clear authorization to do so.”

In recent disputes surrounding the 5.9 and 6 GHz bands, the FCC successfully cited statutes that granted it clear authority without relying on Chevron, suggesting that the result today would likely be the same. In Intelligent Transportation Society of America vs. FCC, the D.C. Circuit held that the FCC did not exceed its authority when repurposing spectrum in the 5.9 GHz band. Similarly, in AT&T vs. FCC, when incumbent licensees claimed harmful interference could occur that would jeopardize public safety and critical infrastructure, the court similarly held that the FCC did not exceed its authority by issuing the 2020 6 GHz Order. In both cases, the Court cited 47 USC §§ 151 and 303, stating that the FCC has “broad authority to oversee wire and radio communication in the United States” to promote “effective use of radio in the public interest.” See Cellco Partnership v. FCC, 700 F.3d 534, 537, 542 (D.C. Cir. 2012). Indeed, the court found that “the FCC is entitled to great deference” in predicting the need to repurpose spectrum accounting for the development of new technologies. In AT&T vs. FCC, the court also explicitly stated that the FCC is entitled to “considerable deference” given the agency’s specialized technical expertise in assigning and repurposing spectrum. Importantly, the court’s justification in both cases—that the FCC has “broad authority to oversee wire and radio communication” and that the agency promoted the “effective use of radio in the public interest”—reinforces a precedent in favor of the FCC’s authority in this domain.

While a recent Ex Parte filing by the Coalition for Emergency Response and Critical Infrastructure (CERCI), citing the Loper Bright ruling, argued that the FCC “clearly lacks authority” to assign the 4.9 GHz band to the FirstNet Authority as “agency interpretations of statutes … are not entitled to deference,” the precedent in favor of the FCC’s broad spectrum authority suggests that this argument is hollow.

Other Considerations

Nevertheless, some experts argue that the Loper Bright ruling potentially undermines the FCC’s regulatory authority over the telecommunications industry more broadly. The Commission could face increased legal challenges to its non-spectrum telecommunications policies, including digital discrimination, net neutrality, and space regulation, potentially hampering its ability to respond to rapidly evolving technological developments. However, FCC Chair Jessica Rosenworcel assured members of Congress, including House Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-WA) and House Oversight and Accountability Chair James Comer (R-KY), that she is confident that the agency’s decisions will stand. Chair Rosenworcel doubled down on her confidence in the agency’s ability to “continue our work” at the Berkeley Law AI Institute’s 7^th Annual Conference in September, arguing that the FCC’s technical decisions enable it to continue regulating effectively without Chevron. Rosenworcel highlighted that the FCC’s specialized work “involves not just lawyers, but economists and engineers” and asserted that the agency makes decisions “based on the engineering, the economics and the thesis of the words in the statute.”

Nevertheless, the political headwinds from the Loper Bright ruling have the capacity to fundamentally reshape party priorities and reliance on specialized agency expertise. While Republicans plan to challenge agency actions and weaken the authority of the “administrative state,” Democrats seek to codify Chevron-like language empowering agencies in future bills. For instance, Senator Ron Wyden’s (D-OR) Restoring Congressional Authority Act (S.4987) would effectively codify Chevron deference if enacted. At the same time, Representative Roger Williams (R-TX), Chair of the Committee on Small Business, and House Committee on Oversight and Accountability Chair James Comer (R-KY), sent letters to a number of agencies following the Loper Bright decision questioning their authority and seeking to “stem the vast tide of federal agencies’ overreach.”

Conclusions

The implications of the Loper Bright decision arguably extend to every aspect of how regulatory policy is made. K&L Gates notes that the “entire policy life cycle” is implicated in Chevron’s demise, including how bills are drafted and the specificity of delegation language, how regulated entities comment on rules before agencies, how executive branch agencies issue decisions, and the level of judicial deference given to agencies’ interpretations in the courts. In addition, other experts have claimed that “the future of telecommunications policy will be clouded by uncertainty,” as a result of the Loper decision. Lawyers at Skadden further argue that “the majority also held that the best reading of a statute could be that it delegated discretionary authority to an agency—and a reviewing court must respect that delegation,” again reinforcing that the broad discretionary authority that the FCC enjoys over spectrum from the Communications Act of 1934 is firmly rooted in both statutory language and precedent. In addition, one might overcome these challenges by lobbying Congress to pass bills that unambiguously give the FCC undisputed authority to regulate areas beyond spectrum, such as telecoms, internet, AI, and space.

Despite the political headwinds and regulatory changes associated with the Loper Bright decision, the FCC’s spectrum authority remains decisively rooted in statute, underscored by the Commission’s approach in challenges to its 5.9 and 6 GHz decisions. Notably, Chevron was not mentioned in these cases when the court ruled in favor of the FCC, revealing that the agency’s broad spectrum authority is unlikely to be curtailed under Loper Bright. At the same time, new challenges are emerging as a result of the ruling, including the aggregate impact of increased litigation on the agency’s finite capacity as well as increased politicization, polarization, and division in the interpretation of agency expertise.