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Broadcast Regulation Post-Chevron

Tim Hanlon

Kevin West/@kevinwestcreative/Unsplash

Last month’s Supreme Court decision in Loper Bright Enterprises v. Raimondo, which effectively overruled the Chevron Doctrine, marks a seismic shift in the landscape of federal rulemaking. For nearly four decades, the Chevron Doctrine has provided a framework for judicial deference to federal agencies' interpretations of ambiguous statutes. By dismantling this doctrine, the Supreme Court has fundamentally altered the balance of power between the judiciary and governmental agencies. This change is poised to have profound implications for future rulemaking across federal agencies - especially at the Federal Communications Commission (FCC), which oversees broadcast TV and radio regulations.

The Chevron Doctrine: A Brief Overview

Established by the Supreme Court in 1984, the Chevron Doctrine mandated that courts defer to an agency's reasonable interpretation of an ambiguous statute. This deference was predicated on the notion that agencies possess specialized expertise and are better equipped to handle the complexities of regulatory interpretation. The Chevron analysis involved a two-step process: first, determining whether Congress had directly addressed the issue at hand; and second, if the statute was ambiguous, assessing whether the agency's interpretation was reasonable.

The Supreme Court's Recent Decision

In deciding Loper, the Supreme Court unequivocally rejected the Chevron framework, asserting that courts must exercise their independent judgment in statutory interpretation, regardless of ambiguity. Chief Justice Roberts, writing for the majority, emphasized that the judiciary, not administrative agencies, holds the ultimate authority to interpret the law. This decision effectively removes the deference previously afforded to agencies, compelling courts to scrutinize agency interpretations more rigorously.

Implications for Federal Rulemaking

The overruling of Chevron is likely to lead to increased legal challenges against agency rules, as regulated entities seize the opportunity to contest regulations on the grounds of statutory interpretation. Agencies will now bear the burden of demonstrating that their interpretations align with the best reading of the statute, rather than merely a reasonable one. This shift is expected to greatly slow the rulemaking process, as agencies may become more cautious and deliberate in crafting regulations to withstand judicial scrutiny.

Moreover, the decision introduces a new layer of uncertainty and complexity into the regulatory landscape. Without the predictability of Chevron deference, agencies may face a barrage of litigation, potentially stalling or even reversing existing regulations. This could have far-reaching consequences for sectors heavily reliant on federal regulation, including environmental protection, labor standards, and financial oversight.

Impact on FCC Rulemaking for Broadcast TV and Radio

The FCC, which regulates broadcast TV and radio, will be significantly affected by the demise of the Chevron Doctrine. The Communications Act of 1934, which originally defined and now governs the FCC's overall authority, contains numerous ambiguities that the agency has historically interpreted to adapt to technological advancements and changing market conditions - 1992’s Cable Television Consumer Protection and Competition Act, for example, which created today’s definitional broadcast retransmission consent/”must-carry” framework. Without Chevron deference, the FCC's ability to interpret and implement these statutory provisions will be severely constrained.

Increased Legal Challenges

One immediate consequence will be a surge in legal challenges to FCC regulations. Broadcasters and other stakeholders will likely contest FCC rules with greater confidence, knowing that courts will no longer defer to the agency's long-regarded and deferred-to expertise. This will undoubtedly lead to prolonged legal battles and increased uncertainty for the television industry, as regulations concerning contentious issues like broadcast station licensing and ownership limits, spectrum allocation (including the future of NextGenTV/ATSC 3.0), and content standards could all come under heightened scrutiny.

Slower Rulemaking Process

The FCC's rulemaking process is also likely to become more cumbersome and time-consuming. The agency will need to meticulously justify its interpretations of statutory provisions, anticipating potential legal challenges at every turn. This will inevitably slow the pace of regulatory updates, hindering the FCC's ability to respond swiftly to technological innovations and market dynamics - which influential lobbies like the National Association of Broadcasters (NAB) already complain is woefully behind the times. In an industry characterized by rapid change, such delays could stifle much-needed innovation and competitiveness.

In addition, existing FCC regulations that were upheld under the Chevron framework may now be vulnerable to challenge. This includes previously established rules on local broadcast ownership, net neutrality, public interest obligations, and broadcast indecency standards. If courts revisit these regulations without the lens of Chevron deference, there is a possibility that some could be overturned, leading to significant shifts in the regulatory environment for broadcasters.

To put it mildly, the future of local broadcasting hangs in the balance.

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