An attempt by subsidiaries of two Chinese companies to raise deference questions in a recent filing at the U.S. Court of Appeals for the D.C. Circuit (docket 23-1032) on FCC equipment authorization rules may not work, legal experts said. Dahua USA and Hikvision USA raised deference issues as part of their arguments on why equipment they make and sell in the U.S. doesn’t belong on the FCC’s list of “covered equipment” deemed to pose a threat to U.S. security.
Another set of defendants among the network of companies and individuals accused by the FTC of delivering tens of millions debt relief robocalls to U.S. consumers via the Stratics Networks ringless voicemail (RVM) platform (see 2302170032) moved Thursday to dismiss the agency’s complaint. But, unlike the motion to dismiss a day earlier from Ace Business Solutions for failure to state a claim (see 2306090032), defendant Atlas and its top officers argue the case should be thrown out because RVMs don’t qualify as phone calls for the purposes of the Telemarketing Sales Rule.
Dahua USA and Hikvision USA detailed their arguments for why the equipment they make and sell in the U.S. doesn’t belong on the FCC’s list of “covered equipment” deemed to pose a threat to U.S. security. The subsidiaries of larger Chinese companies appealed the FCC Nov. 25 order barring authorization of network equipment on the covered list (see 2304250043) in a pleading filed Thursday at the U.S. Court of Appeals for the D.C. Circuit (docket 23-1032).
The U.S. Supreme Court is difficult to predict, but lawyers see reason to believe the court will use an upcoming case, Loper Bright Enterprises v. Raimondo, to clarify the status of the Chevron doctrine, legal experts told us. The doctrine underlies the authority of independent agencies like the FCC and the FTC. The court last week agreed to hear the maritime case (docket 22-451). The court hasn’t cited Chevron for several years, though it continues to be cited by lower courts.
The U.S. Supreme Court’s decision to hear a petition (docket 22-451) in a maritime case (see 2305010058) could put the Chevron doctrine on “death watch,” Free State Foundation President Randolph May blogged Tuesday. “For over a decade, I have suggested that the Chevron doctrine is in tension with fundamental separation of powers principles,” May wrote: “Now, the Supreme Court has agreed to consider overruling Chevron ‘or at least clarify’ that agency interpretations are not entitled to deference in some instances of ‘statutory silence.’ With a Court majority that is more attuned -- and devoted to -- foundational separation of powers principles, the Supreme Court's coming reconsideration of Chevron is welcome.” Experts including May have noted the evolving major questions doctrine is replacing Chevron as a test for when the courts should give regulatory agencies deference (see 2302080064). “If Chevron is overturned or even narrowed meaningfully, one consequence is likely to be curbing the power of the administrative state,” May wrote. Doing so may also “force Congress to take more responsibility for writing laws that more specifically delimit agency actions -- that is, to write less ambiguous laws,” he said.
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The major questions doctrine, as laid out in July’s Supreme Court decision in West Virginia v. EPA (see 2206300066), is likely to play an increasingly important role in future decisions on actions by federal agencies like the FCC, experts said Wednesday during an FCBA webinar. In a 6-3 decision, justices didn’t overrule the Chevron doctrine but appeared to further clamp down on agencies' ability to regulate without clear direction from Congress.