FSF Scholar Says Supreme Court's Last Term Has Implications for FCC

advisers board, in a paper released Tuesday. In Kisor v. Wilkie, the court looked at whether to eliminate to eliminate Auer, or Seminole Rock deference, “the doctrine that commands courts to defer to a federal agency’s interpretation of its own regulation unless the agency’s interpretation is ‘plainly erroneous or inconsistent with the regulation,’” Walker wrote. In a 5-4 decision “with Chief Justice [John] Roberts casting the deciding vote on stare decisis grounds,” the court declined to overrule those long-standing doctrines, he said. But the decision limited them, he said. “Gone is the blunt, bright-line rule, first articulated in the Court’s 1945 decision in Seminole Rock, that a court must defer to any agency regulatory interpretation unless it is ‘plainly erroneous or inconsistent with the regulation,’” he said: “Enter a new, five-step inquiry that in some ways, if taken literally, seems more searching than Chevron deference.” In Gundy v. United States, the high court considered whether a statutory grant of authority to a federal agency or executive branch official violates the nondelegation doctrine. Walker said. Gundy is “noteworthy because only four Justices were willing to continue to embrace a toothless nondelegation doctrine,” he said: Justice Samuel Alito “cast the fifth and decisive vote because ‘it would be freakish to single out the provision at issue here for special treatment.’” But Alito made clear he's willing to reconsider, Walker said. “If and when the Court does decide to reconsider the nondelegation doctrine, the Communications Act’s ‘public interest’ standard, under which so much of the FCC’s regulatory activity takes place, likely will be a candidate for scrutiny.”