Arlington v. FCC (11-1545)

argument 11-1545

Arlington v. FCC

Supreme Court of the United States 59 min 6 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the central jurisdictional dispute between Arlington and the FCC?

John G. Roberts 0:01

We'll hear argument first this morning in case eleven fifteen forty five, City of Arlington, Texas versus the Federal Communications Commission and the consolidated case. Mr Goldstein? Mm-hmm.

Paul D. Clement 0:12

Mr. Chief Justice, thank you very much. May it please the court. This case can get complicated quickly because the word jurisdiction means a lot of different things to a lot of different people in a lot of different contexts, and the parties have advanced both broad and narrow theories for resolving the case, so the thing I can do most helpfully at the beginning I think is to frame where I believe the real dispute in the case lies. The FCC claims the authority to interpret Section three hundred thirty two C seven of the Communications Act with the force of law. And my argument today is limited to the questi that threshold jurisdictional question, which we call interpretive jurisdiction, IO utilities call that underlying jurisdiction.

Paul D. Clement 0:49

Law professors like to call it Chevron Step Zero, but that's what I'm focused on. And the Fifth Circuit said that on that question the F C C gets chevron deference, and that is, it gets to decide whether it has the authority to interpret the Mr

Ruth Bader Ginsburg 1:03

Goldstein, this case has been presented in a very complicated way, but it seems to me that what we're dealing with is a rule uh adopted by the Commission and the Commission's Room making power. as you know, is very broad. They have power to uh make rules needed to carry out the provisions of the act and Three thirty two is counts as a provision. Of the act. So Why isn't it just A proper implementation of that rulemaking authority.

Paul D. Clement 1:43

Well Justice Ginsburg, the question on which you granted Sir Sherrera was how to decide that question, not what is the answer to that question. What the Fifth Circuit did, acknowledging a circuit conflict, was decided that the FCC's assertion that you are right is itself entitled to Chevron deficit.

Stephen G. Breyer 2:01

Or I I grant you I don't see any need Reason for that. The question is just whether Congress intended them to have a degree of discretionary power. But all the arguments that we're here still count against. So so if you want to go into the Sevron step zero or step minus alpha thirteen sex, I mean fine. But but I mean at some point I will hope you I hope you will go into the what I'd call the question of we have a statute just as Justice Ginsburg said. It's an expert statute. It is a statute in an agency that has all kinds of discretionary authority. It includes an important substantive question about what the relation is with the cable television in this area, uh post not cable but you know the broadcast post.

Stephen G. Breyer 2:48

And uh so all these factors here which suggest, of course, Congress, which is not expert, would have wanted the FCC to figure this one out. Okay. Don't do it. Justice Breyer,

Paul D. Clement 3:05

I I do want to talk about it. I do hope You don't have to talk about it now, you can talk whenever you want to I I appreciate it, but I like to talk about the things that you want to hear me talk about. I am very conscious of the fact, let me say, that the court limited its grant of Sir Shari to the first question presented, which was the abstract Chevron question.

Ruth Bader Ginsburg 3:26

Presented. And Just to follow up on what I asked you first, here is a phrase. A reasonable time. And the Commission interprets that phrase in a reasonable way. Why is this case any more complicated than that? Why doesn't the F C C Have the authority to Interpret that term within a reasonable time.

Paul D. Clement 3:51

Justice Ginsberg uh you you and Justice Breyer have both asked me to turn to that question, so I'm going to do it. The only point I'm making is that all of these questions assume that we are right on the question presented, which I think we obviously are. So I am happy to move on. But I just did not want to hurry past the legal question on which you granted Sir Sherrillo. I don't because I don't I

Antonin Scalia 4:09

don't think it's so clear. Okay. Look at the right. Your what you've told us is jurisdiction means a lot of things, but what you mean by it is real jurisdiction, right? I I mean what I mean.