Who Needs Humility When you have a 6-3 Advantage?

           Yet again, the Supreme Court conservative majority overreaches in a decision that probably harms their benefactors who think disqualifying regulatory agency expertise will save them billions.  In Loper Bright Enterprises Et Al. V. Raimondo, https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf the Court majority reversed a 1984 precedent (Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984); https://supreme.justia.com/cases/federal/us/467/837/) that requires judicial deference to reasonable expert regulatory agency interpretation of ambiguous statutes.

           Judges surely have the jurisprudential skills to know when a law is ambiguous and when a regulatory agency acts arbitrarily, ignores evidence, exceeds statutory authority, misreads laws, etc.  But these same judges surely have no basis to substitute their inexpert assessment of technology and science.  From now on, courts can second guess just about anything a regulatory agency does that lacks a specific statutory mandate.

           The corporate underwriters of litigation usually accrue triple digit returns on their investments in lawyers and lobbyists who peck away at costly regulatory compliance duties.  Not in this case. The winning litigants think they have persuaded the Court to “rightsize” the deep, regulatory state.  In reality, they have funded a new legal foundation empowering non-expert judges to shut down even reasonable statutory interpretation by regulatory agencies who regularly have to confront and resolve new cases, controversies, conflicts, public interest challenges, etc.

           Fast evolving technologies and market conditions usually result in regulatory lag that might benefit some corporations from incurring higher costs once the rules change.  But a lag, and now a prohibition, can just a easily cost corporations billions in terms of uncertainty, higher risk, more conflicts and disputes, etc.

           I cannot understand how corporate litigation managers think that foreclosing regulatory agency assessment and response to changed circumstances will save them money.  And yes, this litigation is all about money even as it is framed as belated and proper realignment of the relative powers in the three branches of government.

           Let’s consider what the Federal Communications Commission will not be able to do unless and until Congress amends or enacts new legislation to specify what must be done to regulate a new technology, resolve an emerging case or controversy, right a wrong not previously defined, etc.

           The Communications Act of 1934, https://transition.fcc.gov/Reports/1934new.pdf  specifies the FCC’s clear statutory authority. For example, Congress explicitly mandated FCC regulatory oversight of “wire and radio”: “For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges . . ..” 47 U.S.C. §151; https://www.law.cornell.edu/uscode/text/47/151.

           It appears that the new Loper Bright Enterprises standard would permit a judge to question whether and how the FCC can regulate anything that does not fit within the meaning of wire and radio when Congress used these terms in 1934.  Bear in mind that Congress often does not define all of the terms it uses in a law, nor does it get around to updating a law to reflect changed circumstances. 

           Apparently, both the FCC and reviewing courts must interpret and apply the meaning of wire as originally used in the organic law creating the FCC, unless and until Congress provides a new definition.

           Does a 2024 judicial interpretation of wire limit its meaning to a copper medium for conducting signals used in communications? If so, do subsequent media used for signal transmission, but not comprised of metal, fit within the definition of wire?  What about fiber optic lines?  They transmit signals, of a sort, but no one considers them a type of wire. They are made of glass, not metal!

           Fiber optic lines might fit within the definition of cable, but is a cable a reasonable functional equivalent of wire?  If so, why didn’t Congress specify both wire and cable? Better yet, why didn’t Congress update the Communications Act of 1934 to recognize FCC jurisdiction over fiber optic lines as a new functional equivalent to metal wires?

           In other words, how can an expert regulatory agency comply with its statutory mandates, if it cannot expand or compress its oversight based on newly occurring circumstance?  Just now, I am researching the growing risk of collisions of satellites and space stations with space debris.  The possibility exists for the Loper Bright Enterprises standard to invalidate any FCC effort to establish space debris mitigation requirements by regulated satellite operators. There certainly is nothing in the Communications Act that specifies satellite carrier affirmative duties to mitigate space debris.

           The FCC probably no longer can fine a carrier for noncompliance of mitigation requirements as it recently did when Dish Network failed to remove from orbit a direct broadcast satellite reaching end of life.  DISH Operating L.L.C., Order, DA 23-888 (Oct. 2, 2023); https://docs.fcc.gov/public/attachments/DA-23-888A1.docx.

           Bottom line: Even a serious-minded Congress, emphasizing law over theatrics, cannot “future proof” a law to respond to all changed circumstances.  The Supreme Court conservative majority now expects Congress to correct all ambiguities and deficiencies in existing laws. 

           Good luck with that America.