Consumers' Research asked the U.S. Supreme Court to extend the deadline to file its cert petition challenging a 6th U.S. Circuit Court of Appeals decision upholding the FCC's USF 2021 Q4 contribution factor (see 2305300009). The group asked in an application posted Friday that the court extend the Aug. 28 deadline by 60 days, to Oct. 27, to file its petition. The group noted the 5th Circuit's decision to grant rehearing for its challenge of a separate contribution factor, saying it "signals that it may soon split from the Sixth Circuit on these important nondelegation matters" (see 2306290074).

Justice Elena Kagan requested Apple's response by Friday at 5 p.m. EDT to Epic Games’ July 25 emergency application to vacate the stay of the appellate mandate issued to Apple by the 9th U.S. Circuit Court of Appeals, or to vacate the court’s stay pending appeal (see 2307280011), said a docket entry Monday (docket 23A78) at the U.S. Supreme Court. The stay is preventing enforcing the injunction that Epic won in the district court to enjoin Apple from imposing its anti-steering rules against mobile app developers. Kagan is the U.S. Supreme Court justice for the 9th Circuit.

Federal courts have the “constitutional power to say what the law is,” and Chevron deference “nullifies that power and should therefore be overruled,” said the nonprofit Pacific Legal Foundation (PLF) in an amicus brief Monday (docket 22-451) at the U.S. Supreme Court in support of the petitioners in Loper Bright Enterprises v. Raimondo. The petitioners are vessel owners challenging the authority of the National Marine Fisheries Service to require them to pay the salaries of the federal observers they must carry onboard. In a case with clear ramifications for the future of Chevron deference for federal agencies, the petitioners are asking SCOTUS to reverse a D.C. Circuit decision in the government’s favor that critics of the ruling are calling clear agency overreach. SCOTUS “disserves the Constitution” each day it allows Chevron deference to exist, said PLF’s brief, listing 27 reasons why SCOTUS should end the doctrine. “It should be plain by now” that the Supreme Court should end Chevron “and not attempt to mend it,” said the brief. The petitioners’ question leaves open the option for SCOTUS to mend Chevron, but there’s nothing in it “that can be mended in a manner that would bring the doctrine in compliance with the Constitution,” it said. Chevron’s presumption that Congress “relinquished a measure of its legislative power to agencies is simply unsupportable,” said the brief. Chevron “fatigues federal courts and Congress into compliance with agency diktat,” it said. It dissolves the legislative and executive powers “into one concoction, and it obstructs the administration of justice by disarming the judicial power” of the U.S., it said. Chevron by another name “will remain just as violative of the Constitution’s entwined checks and balances,” it said. It’s imperative that this SCOTUS “repudiate” the doctrine for good, it said.

The “far-reaching question” that the U.S. Supreme Court will address in Loper Bright Enterprises v. Raimondo -- whether Chevron deference “should be overruled or at least clarified” -- implicates the separation of powers, said an amicus brief Thursday (docket 22-451) by the Atlantic Legal Foundation in support of the petitioners in the case. The petitioners are a group of vessel owners challenging the authority of the National Marine Fisheries Service (NMFS) under the Magnuson-Stevens Act to require them to pay the salaries of the federal observers they must carry onboard. The petitioners are asking SCOTUS to reverse a U.S. Appeals Court for the D.C. Circuit decision in NMFS's favor that critics of the ruling are calling clear agency overreach. Their opening brief is due Monday. It's a case expected to have broad implications for the future deference afforded federal agencies under Chevron to properly interpret and enforce the federal statutes they have authority over. In addressing the viability or scope of Chevron deference, SCOTUS should use the case “as an opportunity to correct, or at least admonish,” the “brazen disrespect” that NMFS holds for the Constitution’s appropriations clause, said the foundation. Over many decades, both the executive branch and Congress, “often in concert,” have violated “the letter and/or purpose” of the appropriations clause “in too many ways to catalog here,” it said. Only SCOTUS can begin to restore the clause’s “crucial constitutional check against abuse” of executive branch power. it said. SCOTUS has limited its review to the question of whether Chevron should be overruled, or at least clarified, so courts don’t equate “statutory silence with statutory ambiguity” for purposes of deferring to an agency’s assertion of controversial powers under a statute that it administers, said the foundation. If Chevron deference excludes anything, it should be the NMFS’ “unconstitutional power grab here,” it said. An agency interpretation can’t be “reasonable, or permissible, or consistent with congressional intent,” if it conflicts with the constitution, it said.

The U.S. Supreme Court granted the solicitor general’s unopposed motion to extend the deadline for petitioners’ opening brief to July 17 in Loper Bright Enterprises v. Raimondo, said a text-only entry Friday (docket 22-451). The government’s responsive brief is now due Sept. 15, and the petitioners’ reply Oct. 16. The petitioners are vessel owners challenging the authority of the National Marine Fisheries Service under the Magnuson-Stevens Act to require them to pay the salaries of the federal observers they must carry on board. The case is seen as having broad implications for the deference afforded agencies under the 1984 Chevron doctrine to properly interpret and enforce the federal statutes they have authority over (see 2305010038).

The U.S. Supreme Court denied Northstar Wireless' cert petition on the FCC's denying designated entity AWS-3 auction credits to Northstar and another Dish Network (see 2301230007), per a notice Friday in docket 22-672. The court said Justice Ketanji Brown Jackson didn't take part in the consideration or decision. The cert petition denial raises the prospects of a re-auction of spectrum soon, New Street Research's Blair Levin wrote in an investors' note Friday. The FCC doesn't have auction authority now, but that probably will be restored in 2023's second half, he said. Dish already paid $515 million and would be on the hook for any shortfall in a re-auction of the licenses, said Levin, though he deems such a shortfall unlikely.

The U.S. Supreme Court denied the cert petition of ML Genius to review the 2nd Circuit U.S. Appeals Court’s March 31 dismissal of its breach-of-contract claim against Google, said an entry Monday in docket 22-121. The case involved Genius, an online platform for transcribing and annotating song lyrics, and its requirement that visitors agree to its contractual terms as a condition for using its services. Those terms include the promise not to reproduce the contents of Genius’ platform. Genius alleged Google contractually bound itself to those terms but in blatant breach of that contract “stole Genius’s labors for its own competing commercial purposes.” SCOTUS invited Solicitor General Elizabeth Prelogar in December to file a brief expressing the views of the U.S., and Prelogar told the court May 23 that further review wasn’t “warranted” because the Copyright Act preempts the Genius breach-of-contract claim (see 2305240008).

The U.S. Supreme Court granted the June 2 motion of all parties to extend the merits brief schedule in Loper Bright Enterprises v. Raimondo, said a text-only docket entry Friday (docket 22-451). Petitioner Loper Bright’s brief is due July 10, the respondents’ brief Aug. 30, said the entry. The case could have broad implications for the Chevron deference afforded agencies to properly interpret and enforce the federal statutes under their authority (see 2305010038).

The U.S. Supreme Court declined Monday to hear a petition from two dozen iPhone users seeking uniformity on appellate courts' decision-making over whether FCC guidelines “impliedly preempt” state law claims about RF safety (see 2301270065). In rejecting the case, SCOTUS, as is the norm, didn't provide reasoning. The petition sought a reversal of the 9th U.S. Circuit Court of Appeals Aug. 26 opinion, affirming the district court’s summary judgment for Apple, based on federal law preemption of the state law claims. Children’s Health Defense and other RF safety advocates urged the court to hear the case. Matthew Wessler, lead lawyer for plaintiffs, and Children’s Health Defense didn’t comment Monday. SCOTUS also denied Berkeley, California's motion to file an amicus brief (see 2303160007).

The U.S. Supreme Court distributed for the justices’ May 18 conference the cert petition from two dozen iPhone users seeking to bring uniformity to the appellate courts’ decision-making over whether FCC guidelines “impliedly preempt” state law claims about RF radiation cellphone safety (see 2301270065), said a text-only docket entry Tuesday (docket 22-698). The petition seeks a reversal of the 9th U.S. Circuit Court of Appeals Aug. 26 opinion, affirming the district court’s summary judgment for Apple, based on federal law preemption of the state law claims.