Crown Castle NG East LLC v. PUC, Aplt.

[J-81-2019] [MO: Mundy, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

CROWN CASTLE NG EAST LLC AND : No. 2 MAP 2019

PENNSYLVANIA-CLE LLC, :

: Appeal from the Order of the

Appellees : Commonwealth Court dated June 7,

: 2018 at No. 697 CD 2017 Reversing

: the Order of the Pennsylvania Public

v. : Utility Commission dated May 4,

: 2017 at No. M-2016-2517831.

:

PENNSYLVANIA PUBLIC UTILITY : ARGUED: October 15, 2019

COMMISSION, :

:

Appellant :

CONCURRING OPINION

JUSTICE WECHT DECIDED: July 21, 2020

The provisions of the Pennsylvania Utility Code (“the Code”)1 at issue in this case

are unambiguous, and they compel affirmance of the Commonwealth Court’s order.

Because the Code is clear, the Pennsylvania Utility Commission’s (“PUC” or “the

Commission”) proposed approach to unpacking the Code is entitled to no deference

whatsoever. For these reasons, I join the Majority Opinion. I write separately because

this case highlights the perilous instability of the scaffolding that has been thrown together

over time around the concept of “administrative deference,” a notion or totem as to which

I have deep and broad misgivings.

1 See Act of July 1, 1978, Pub. L. 598, No. 116, as amended, 66 Pa.C.S. §§ 101, et

seq.

In matters of agency deference, this Court historically has chosen (by volition

rather than by command) to take its cues from federal law. See Wirth v. Commonwealth,

95 A.3d 822, 841 n.18 (Pa. 2014); Nw. Youth Servs., Inc. v. Commonwealth, Dep’t of

Pub. Welfare, 66 A.3d 301, 311 (Pa. 2013) (“Pennsylvania courts’ treatment of deference

to administrative agency rules has followed the United States Supreme Court’s

lead . . . .”). Generally speaking, federal courts employ a tripartite scheme in evaluating

agency interpretations.

The most deferential standard applies to circumstances where an agency, acting

pursuant to an express or implied delegation of rule-making authority, resolves a statutory

ambiguity by some variety of deliberative process, typically (but not necessarily) involving

rule-making attended by some degree of formality, such as the invitation and

consideration of public notice and comment. See Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837 (1984); Eagle Envtl. II, LP v. Commonwealth, Dep’t of Envtl.

Prot., 884 A.2d 867, 878 (Pa. 2005) (quoting Anela v. Pa. Hous. Fin. Agency, 690 A.2d

1157, 1159 (Pa. 1997)) (“[A]n agency’s interpretation of its enabling statute is entitled to

great weight and will not be overturned unless it is clearly erroneous,” but the legislative

delegation of the interpretive rulemaking power must be “clear and unmistakable”).2 The

Supreme Court of the United States has observed that “a very good indicator of delegation

meriting Chevron treatment [lies] in express congressional authorizations to engage in

the process of rulemaking or adjudication that produces regulations or rulings for which

deference is claimed.” United States v. Mead Corp., 533 U.S. 218, 229 (2001).

2 Cf. NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 257

(1995) (applying Chevron deference to the “deliberative” unilateral position espoused by

the Comptroller of the Currency).

[J-81-2019] [MO: Mundy, J.] - 2

As the Majority observes, this Court never has expressly adopted Chevron. See

Maj. Op. at 22 n.11. Nonetheless, this Court has treated administrative deference

concordantly with federal law, and federal law is principally informed by Chevron and its

progeny. For the reasons I set forth below, I question whether and to what extent this

Court should rely upon federal law for purposes of assessing whether, when, and to what

extent Pennsylvania courts should defer to Pennsylvania agency interpretations of their

Pennsylvania enabling statutes.

Pursuant to what sometimes is referred to as “the Chevron two-step,”3 federal

courts considering agency interpretations of a statute first must ask whether the statute

is clear. If so, then no deference need be afforded to the agency’s position. However,

when the statute is ambiguous and Congress has signaled its intention to delegate rule-

making authority to the agency, the agency’s interpretations are afforded “controlling

weight unless they are arbitrary, capricious, or manifestly contrary to the statute.”

Chevron, 467 U.S. at 843-44.4 Notably, Chevron deference “is premised on the theory

that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency

to fill in the statutory gaps.” King v. Burwell, 135 S.Ct. 2480, 2488 (2015) (quoting FDA

v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)5).

3 See Bradley George Hubbard, Comment, Deference to Agency Statutory

Interpretations First Advanced in Litigation? The Chevron Two-Step and the Skidmore

Shuffle, 80 U. CHI. L. REV. 447 (Winter 2013).

4 Accord Eagle Envtl., 884 A.2d at 878.

5 This robust federal proposition stands in marked tension with Eagle Environmental,

in which this Court emphasized the importance of a “clear and unmistakable” delegation

of rule-making authority, and observed that “a doubtful power does not exist.” Eagle

Envtl., 884 A.2d at 878 (quoting Gilligan v. Pa. Horse Racing Comm’n, 422 A.2d 487, 490

(Pa. 1980)).

[J-81-2019] [MO: Mundy, J.] - 3

Similarly deferential is the federal standard applied under the United States

Supreme Court’s decision in Auer v. Robbins, 519 U.S. 452 (1997). Auer calls for judicial

deference to an agency interpretation of its own ambiguous regulations. As with Chevron,

under Auer, federal courts are directed to defer to agencies’ interpretations of their own

regulations when those interpretations are not “plainly erroneous or inconsistent with the

regulation.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989)

(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)); see Auer, 519

U.S. at 461; see also Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 617 (2013) (Scalia, J.,

concurring and dissenting) (“Auer deference is Chevron deference applied to regulations

rather than statutes.”). The Supreme Court has reasoned that “applying an agency’s

regulation to complex or changing circumstances calls upon the agency’s unique

expertise and policymaking prerogatives,” which Congress delegated to it by vesting the

agency with rule-making power. Martin v. Occupational Safety & Health Review Comm’n,

499 U.S. 144, 151 (1991).

In recent years, the Supreme Court’s enthusiasm for agency deference, and in

particular Auer deference, has appeared to wane:

Although Auer ordinarily calls for deference to an agency’s interpretation of

its own ambiguous regulation, even when that interpretation is advanced in

a legal brief, see Chase Bank USA, N.A. v. McCoy, 562 U.S. 195, 208

(2011); Auer, 519 U.S. at 461-62, this general rule does not apply in all

cases. Deference is undoubtedly inappropriate, for example, when the

agency’s interpretation is “‘plainly erroneous or inconsistent with the

regulation.’” Auer, 519 U.S. at 461 (quoting Robertson, 490 U.S. at 359).

And deference is likewise unwarranted when there is reason to suspect that

the agency’s interpretation “does not reflect the agency’s fair and

considered judgment on the matter in question.” Id. at 462; see also, e.g.,

Chase Bank, 562 U.S. at 209. This might occur when the agency’s

interpretation conflicts with a prior interpretation, see, e.g., Thomas

Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994), or when it appears

that the interpretation is nothing more than a “convenient litigating position,”

[J-81-2019] [MO: Mundy, J.] - 4

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213 (1988), or a “‘post

hoc rationalizatio[n]’ advanced by an agency seeking to defend past agency

action against attack,” Auer, 519 U.S. at 462 (quoting Bowen, 488 U.S. at

212; alteration in original).

Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 (2012) (citations modified).

In Talk America, Inc. v. Mich. Bell Tel. Co., 564 U.S. 50, 68 (2011), Justice Scalia criticized

Auer, noting that “[i]t seems contrary to fundamental principles of separation of powers to

permit the person who promulgates a law to interpret it as well.” Id. at 68 (Scalia, J.,

concurring)(quoting CHARLES DE SECONDAT, BARON DE MONTESQUIEU, SPIRIT OF THE LAWS

bk. XI, ch. 6, 151-52 (Oskar Piest ed., Thomas Nugent transl. 1949)6) (“When the

legislative and executive powers are united in the same person, or in the same body of

magistrates, there can be no liberty . . . .”).7

That being said, the rumors of Auer’s demise have proved exaggerated or at least

premature. Just last year the High Court reaffirmed Auer’s continuing validity, albeit in a

fractured and qualified ruling. See Kisor v. Wilkie, 139 S.Ct. 2400 (2019). The factual

6 The same translation of The Spirit of the Laws is available in the public domain at

https://ia802701.us.archive.org/22/items/spiritoflaws01montuoft/spiritoflaws01montuoft_

bw.pdf.

7 See also Kisor v. Wilkie, 139 S.Ct. 2400, 2438 (2019) (Gorsuch, J., concurring in

the judgment) (quoting 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 at 75 (Max

Farrand ed., Yale Univ. Press 1911) (noting that the founders believed that “‘no maxim

was better established’ than ‘that the power of making ought to be kept distinct from that

of expounding, the laws’”)).

Justice Thomas once related that Justice Scalia later described Auer to him as

”one of the worst opinions in the history of this country,” whereupon, the story delightfully

goes, Justice Thomas reminded Justice Scalia that Auer was authored by none other

than Justice Scalia. See THE HERITAGE FOUNDATION, Joseph Story Distinguished Lecture:

A Conversation with Clarence Thomas (Oct. 26, 2016),

https://www.heritage.org/sites/default/files/2017-11/HL1282.pdf.

[J-81-2019] [MO: Mundy, J.] - 5

details of that case are not essential to this discussion. What is notable is that a bare

majority of the Court—over the objection of Justice Gorsuch, joined to varying extents by

Justices Thomas, Kavanaugh, and Alito—rejected the invitation to overrule Auer and the

Court’s earlier decision in Bowles, 325 U.S. 410. The lead opinion8 declared that “Auer

deference retains an important role in construing agency regulations. . .”, Kisor, 139 S.Ct.

at 2408, and ventured that Congress, in delegating rule-making authority to an agency,

“is attuned to the comparative advantages of agencies over courts in making” certain

“policy judgments,” especially where doing so requires “‘unique expertise’ . . . relevant to

applying a regulation ‘to complex or changing circumstances.’” Id. at 2413 (plurality)

(quoting Martin, 499 U.S. at 151).

The Kisor Court was at pains to underscore Auer’s limits at some length,

professing that Auer deference “is potent in its place, but cabined in its scope.” Id.

at 2408. For example, “when a court concludes that an interpretation does not reflect an

agency’s authoritative, expertise-based, fair or considered judgment,” courts should only

defer to an agency’s reading “to the extent it has the power to persuade.” Id. at 2414

(cleaned up). In this regard, the Kisor Court observed that even where an ambiguous

regulation triggers Auer deference, “the agency’s reading must fall within the bounds of

reasonable interpretation. And let there be no mistake: That is a requirement an agency

can fail.” Id. at 2416 (cleaned up).

8 Chief Justice Roberts declined to join subsections II-A and III-A of Justice Kagan’s

opinion, the former of which reviewed Auer’s salutary functions. See Kisor, 139 S.Ct. at

2410-14 (plurality). However, he provided the dispositive fifth vote for subsection II-B,

related below, in which Justice Kagan, at considerable length, delineated the limits upon

Auer deference. Id. at 2414-18. Unless otherwise noted, my citations to Kisor refer to

those portions of Justice Kagan’s Opinion that gained majority support.

[J-81-2019] [MO: Mundy, J.] - 6

The Kisor caveats continued:

[T]he regulatory interpretation must be one actually made by the agency. In

other words, it must be the agency’s authoritative or official position, rather

than any mere ad hoc statement not reflecting the agency’s views. That

constraint follows from the logic of Auer deference—because Congress has

delegated rulemaking power, and all that typically goes with it, to the agency

alone. Of course, the requirement of authoritative action must recognize a

reality of bureaucratic life: Not everything the agency does comes from, or

is even in the name of, the Secretary or his chief advisers. . . . But there

are limits. The interpretation must at the least emanate from those actors,

using those vehicles, understood to make authoritative policy in the relevant

context.

****

Finally, an agency’s reading of a rule must reflect fair and considered

judgment to receive Auer deference. That means . . . that a court should

decline to defer to a merely convenient litigating position or post hoc

rationalization advanced to defend past agency action against attack. And

a court may not defer to a new interpretation, whether or not introduced in

litigation, that creates unfair surprise to regulated parties. That disruption

of expectations may occur when an agency substitutes one view of a rule

for another. We have therefore only rarely given Auer deference to an

agency construction conflicting with a prior one. . . .

The upshot of all this goes something as follows. When it applies, Auer

deference gives an agency significant leeway to say what its own rules

mean. In so doing, the doctrine enables the agency to fill out the regulatory

scheme Congress has placed under its supervision. But that phrase “when

it applies” is important—because it often doesn’t. As described above, this

Court has cabined Auer’s scope in varied and critical ways—and in exactly

that measure, has maintained a strong judicial role in interpreting rules.

What emerges is a deference doctrine not quite so tame as some might

hope, but not nearly so menacing as they might fear.

Kisor, 139 S.Ct. at 2416-18 (cleaned up).

These analytical half-measures failed to satisfy Justice Gorsuch. In his persuasive

concurring opinion in Kisor, Justice Gorsuch, echoing Justice Scalia’s previously stated

objection to Auer deference, laid bare the infirmities in the Majority’s opinion, which he

accused of offering the doctrine “more of a stay of execution than a pardon.” Id. at 2425

(Gorsuch, J., concurring). He accused the majority of “impos[ing] so many new and

[J-81-2019] [MO: Mundy, J.] - 7

nebulous qualifications and limitations” as to render the doctrine “maimed and

enfeebled—in truth, zombified.” Id. After a lengthy survey and rejection of the arguments

and authorities relied upon by the Majority, Justice Gorsuch observed:

The majority candidly admits that it finds it impossible to “reduce” this new

[Auer] inquiry “to any exhaustive test,” so it settles for laying out some

markers. What are the markers? We are told that courts should often—but

not always—withhold deference from an interpretation offered by mid-level

agency staff; often—but not always—withhold deference from a

nontechnical, “prosaic-seeming” interpretation; often—but not always—

withhold deference from an interpretation advanced for the first time in an

amicus brief; and often—but not always—withhold deference from an

interpretation that conflicts with an earlier one.

Id. at 2443 (citations omitted). Justice Gorsuch rejected this nebulous (“zombified”)

approach, arguing that “judges owe the people who come before them nothing less than

a fair contest, where every party has an equal chance to persuade the court of its

interpretation of the law’s demands.” Id. at 2425.

Kisor’s “power to persuade” terminology originally appeared in Skidmore v. Swift

& Co., 323 U.S. 134, 140 (1944). However, Kisor’s invocation of this language drew from

Christopher, an Auer deference case, which itself quoted Justice Scalia’s dissenting

opinion in Mead Corp., a Chevron deference case. Mead Corp., 533 U.S. at 250-52

(Scalia, J., dissenting). The gnomic but oft-quoted passage in Skidmore from which the

phrase is drawn explains in full: “The weight [granted an administrative] judgment in a

particular case will depend upon the thoroughness evident in its consideration, the validity

of its reasoning, its consistency with earlier and later pronouncements, and all those

factors which give it power to persuade, if lacking power to control.” Skidmore, 323 U.S.

at 140. Mead Corp. also cited Skidmore for the proposition that “[t]he fair measure of

deference to an agency administering its own statute has been understood to vary with

circumstances, and courts have looked to the degree of the agency’s care, its

[J-81-2019] [MO: Mundy, J.] - 8

consistency, formality, and relative expertness, and to the persuasiveness of the agency’s

position.” Mead Corp., 533 U.S. at 228 (citing Skidmore, 323 U.S. at 139-140).

But even as it has been cited in both the Chevron and Auer contexts, Skidmore

generally has been understood as a discrete, third form of administrative deference that

applies when what are at issue are informal policies or practices that involve the agency’s

interpretations of its statutorily-conferred duties. In Skidmore, a wartime case,

considering whether to privilege the interpretation of an administrator of the Fair Labor

Standards Act regarding the triggering event for an employee’s entitlement to overtime

compensation, the Court noted that Congress created the “office of Administrator,” who

had “considerable experience in the problems of ascertaining working time in

employments involving periods of inactivity and a knowledge of the customs prevailing in

reference to their solution.” Skidmore, 323 U.S. at 137-38. Consequently, while

Congress effectively reposed the final determination as to what constituted working time

in the courts, the Court nonetheless prescribed deference: “We consider that the rulings,

interpretations and opinions of the Administrator under this Act, while not controlling . . .,

do constitute a body of experience and informed judgment to which courts and litigants

may properly resort for guidance.” Id. at 140.

As noted above, this Court generally has looked to federal law in matters of agency

deference. See Wirth, 95 A.3d at 841 n.18; Nw. Youth Servs., 66 A.3d at 311. But in

Northwestern Youth Services, we opined that the Christopher Court “modified [the] course

of the federal jurisprudence” when it opted to apply Skidmore rather than Auer deference

to an agency’s interpretation of its own regulation. Nw. Youth Servs., 66 A.3d at 312; see

[J-81-2019] [MO: Mundy, J.] - 9

Christopher, 567 U.S. at 158-59.9 Over time, this Court has developed a simplified

dichotomy that distinguishes simply between “substantive” and “interpretative” rule-

making. To the former, we have applied something resembling Chevron deference. For

the latter, we have employed an approach akin to Skidmore’s. See generally Nw. Youth

Servs., 66 A.3d at 310-12.

The instant case illustrates well the fundamental lack of clarity in discerning the

point at which Chevron gives way to Auer gives way to Skidmore, however tidy the

nominal distinctions might appear to be. That same lack of clarity appears in our case

law. At issue here is a mix of statutory interpretation and informal rulemaking of a sort—

interpretive rule-making in this Court’s parlance. We begin with the Commission’s wholly

tacit position on a question of how to interpret the Code, which we can glean only from

the Commission’s ten-year pattern of granting certificates of public convenience (“CPC”).

To wit, are providers of Distributed Antennae Systems (“DAS”) “public utilities” entitled to

CPCs pursuant to 66 Pa.C.S. § 102? The Commission’s affirmative answer was

discernible only by conduct and only in retrospect; for ten years, PUC undertook no formal

process to address the question when it became salient. Instead, DAS providers simply

filed for CPCs in due course and the Commission granted them. That the Commission

9 Although this Court has held that a measure of deference “approximating that

afforded to legislative rules” applies to an agency’s interpretation of its own ambiguous

regulation, see Nw. Youth Servs., 66 A.3d at 312; Commonwealth, Dep’t of Pub. Welfare

v. Forbes Health Sys., 422 A.2d 480, 482 (Pa. 1980), we have cited Auer only once, and

not on the subject of agency deference. See Goldman v. SEPTA, 57 A.3d 1154, 1177

(Pa. 2012) (citing Auer for its substantive holding). Conversely, our intermediate courts

have applied Auer uncritically. See, e.g., Yorty v. PJM Interconnection, LLC, 79 A.3d

655, 664-65, 664 n.5 (Pa. Super. 2013) (applying Auer deference and rejecting the

argument that the Christopher Court “limited or cast doubt” upon that doctrine); Bayada

Nurses, Inc. v. Commonwealth, Dep’t of Labor & Indus., 958 A.2d 1050, 1058 n.7

(Pa. Cmwlth. 2008) (en banc).

[J-81-2019] [MO: Mundy, J.] - 10

did not in any sense engage in a rulemaking process in the ten years before the reversal

that prompted the instant litigation undermines any claim to deference on par with

Chevron, which typically applies when an agency has employed a greater degree of

deliberation and transparency.

Even when PUC reversed its position, it did not follow a formal rulemaking process.

The Commission solicited input from the public, but it did not undertake the sort of

formalized notice-and-comment process generally relied upon to establish “legislative

rules,” i.e., regulations that have binding effect pursuant to a legislative grant of rule-

making authority, which we generally have granted some degree of deference. See

generally Nw. Youth Servs., 66 A.3d at 310-12 (distinguishing legislative and interpretive

rules by virtue of the processes by which they are promulgated). Hence, on any fair

account, it remained an instance of interpretive rule-making as we have employed that

term, and the question of deference would appear to be governed by Skidmore rather

than Chevron.

But Skidmore, if not the entire Chevron framework, is a hopeless muddle. As

noted, the Supreme Court in Skidmore held that federal courts must calibrate their

deference to an agency’s less-than-formally-rendered interpretative rules based “upon

the thoroughness evident in its consideration, the validity of its reasoning, its consistency

with earlier and later pronouncements,[10] and all those factors which give it power to

10 While “consistency with earlier and later pronouncements” is a Skidmore factor,

the Court has held that Chevron deference is not necessarily precluded where an

agency’s interpretations pursuant to legislatively delegated rule-making authority evolve

or even are reversed. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,

545 U.S. 967, 981-82 (2005). The Court in National Cable observed that “an initial agency

interpretation is not instantly carved in stone. On the contrary, the agency . . . must

[J-81-2019] [MO: Mundy, J.] - 11

persuade, if lacking power to control.” Skidmore, 323 U.S. at 140. Unpacked, this grand

language describes nothing more than courts’ approach to appellate arguments

generally, an enterprise that entails no deference at all. I can identify no Pennsylvania or

federal case in which I can conclude with confidence that application of Skidmore

deference clearly led to an agency-advocated ruling that the court would have rejected

but for its deference.11 In any event, by encouraging courts to calibrate the degree of

their deference to agency opinions based upon “all those factors which give it power to

persuade,” id., Skidmore does nothing more than recite a judge’s job description. As

such, it is potentially confusing and essentially useless.

In Mead Corp., Justice Scalia cogently argued that “the rule of Skidmore deference

is an empty truism and a trifling statement of the obvious: A judge should take into account

the well-considered views of expert observers.” Mead Corp., 533 U.S. at 250 (Scalia, J.,

dissenting). When it comes to technical subjects, an expert will tend to have an

advantage as a matter of course. As Justice Gorsuch aptly observed:

No one doubts that courts should pay close attention to an expert agency’s

views on technical questions in its field. . . . The fact remains, however, that

even agency experts can be wrong . . . . Skidmore . . . recognized both of

these facts of life long ago, explaining that, while courts should of course

afford respectful consideration to the expert agency’s views, they must

remain open to competing expert and other evidence supplied in an

adversarial setting.

consider varying interpretations and the wisdom of its policy on a continuing basis, for

example, in response to changed factual circumstances, or a change in administrations.”

Id. at 981 (cleaned up). But the Supreme Court in Kisor observed that the Court seldom

has deferred to an agency interpretation of its own regulation that departed from an earlier

interpretation. Kisor, 139 S.Ct. at 2417-18.

11 Cf. Kisor, 139 S.Ct. at 2427 (Gorsuch, J., concurring in the judgment) (noting that

in Skidmore itself the Court couched its ruling in terms of its independent interpretation of

the relevant provisions, turning only afterward to the question of what deference, if any,

the Court should grant the views of the Labor Department administrator).

[J-81-2019] [MO: Mundy, J.] - 12

Kisor, 139 S.Ct. at 2442-43 (Gorsuch, J., concurring in the judgment) (cleaned up).

Courts do not sit to ratify or parrot the directives of experts, nor does the judge offer an

expert a doctrinal leg up.

Maintaining the fiction that Skidmore has more than aphoristic value (if that) invites

only confusion and mischief. Justice Scalia put the point well:

[The Skidmore] doctrine (if it can be called that) is incoherent, both

linguistically and practically. To defer is to subordinate one’s own judgment

to another’s. If one has been persuaded by another, so that one’s judgment

accords with the other’s, there is no room for deferral—only for agreement.

Speaking of “Skidmore deference” to a persuasive agency position does

nothing but confuse.

Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 24 n.6 (2011) (Scalia, J.,

dissenting). When we consider an agency’s interpretive rule, it is probity, rather than

deference, that should dictate the success or failure of an agency’s position, whether that

position is embodied in an agency course of conduct and stability of interpretation or in

interpretive documents issued after a process lacking the hallmarks of formal rule-making

pursuant to a statutory grant of authority. Courts should respond to agency requests for

deference by saying: “Don’t command me. Convince me.”

While Chevron and Auer are premised upon an intentional legislative delegation,

Skidmore’s underlying rationale has been stated in terms of agency expertise.12 See

12 In Kisor, Justice Gorsuch concluded his critique of the somersaults turned by the

lead opinion as it strove mightily to preserve Auer deference in some shrunken and

anemic incarnation by suggesting that Auer should be jettisoned in favor of Skidmore,

“liberating courts to decide cases based on their independent judgment and follow the

agency’s view only to the extent it is persuasive.” Kisor, 139 S.Ct. at 2447 (Gorsuch, J.,

concurring in the judgment) (cleaned up). But in doing so, it seems to me, Justice

Gorsuch was proposing to preserve Skidmore no more strongly than I perceive it,

implicitly acknowledging that Skidmore deference is really not deference at all, but rather

a context-specific shorthand recalling only judges’ fundamentally independent,

interpretive function.

[J-81-2019] [MO: Mundy, J.] - 13

Wirth, 95 A.3d at 841 n.18 (noting “the specialized role and expertise of administrative

agencies”); accord Nw. Youth Servs., 66 A.3d at 311-12. Here, however, we began with

an entirely ad hoc statutory interpretation, one that for all we know may have involved no

meaningful deliberation whatsoever—specifically, that DAS providers are public utilities

under the Code. Then, without any indication of changes in the relevant circumstances,

save the installation of new Commissioners, the Commission elected to review its

established practice sua sponte, reversing itself after an abbreviated deliberative process

that fell short of the customary processes that characterize legislative rules.13

In any event, whether a statute imposes a given duty manifestly is a pure question

of law that a court should consider de novo, privileging no advocate’s view to a greater

extent than its legal merit warrants. See Piper v. Chris-Craft Indus., Inc., 430 U.S. 1, 41

n.27 (1977) (expressing doubts regarding the relevance of agency expertise to gleaning

whether a private right of action was intended by Congress, a question “peculiarly

reserved for judicial resolution”); Janus Capital Grp., Inc. v. First Derivative Traders, 564

U.S. 135, 145 n.8 (2011) (reaffirming Piper); Snyder Brothers, Inc. v. Pa. Pub. Util.

Comm’n, 198 A.3d 1056, 1083 (Pa. 2018) (Wecht, J., concurring) (“Statutory

interpretation is an important part of the work that we do. We do not subcontract that

interpretive enterprise to administrative agencies.”). While Chevron assumes that the

legislature has some latitude to provide a broad statutory directive intending that agency

experts will flesh out the finer points based upon their institutionally specialized

13 Two of five commissioners dissented from the Commission’s determination. See

Order, Review of Issues Relating to Commission Certification of Distributed Antennae

System Providers in Pennsylvania, 3/17/2017 (Chairwoman Gladys M. Brown and Vice

Chairman Andrew G. Place, dissenting), reconsideration denied, 5/4/2017.

[J-81-2019] [MO: Mundy, J.] - 14

knowledge and expertise, it nonetheless only comes into play upon a finding of statutory

ambiguity.14

In this regard, the Kisor Court spoke in restrictive terms about when a court may

find ambiguity in the context of the interpretation of regulations:

[B]efore concluding that a rule is genuinely ambiguous, a court must

exhaust all the traditional tools of construction. For again, only when that

legal toolkit is empty and the interpretive question still has no single right

answer can a judge conclude that it is more one of policy than of law. That

means a court cannot wave the ambiguity flag just because it found the

regulation impenetrable on first read. Agency regulations can sometimes

make the eyes glaze over. But hard interpretive conundrums, even relating

to complex rules, can often be solved. To make that effort, a court must

carefully consider the text, structure, history, and purpose of a regulation, in

all the ways it would if it had no agency to fall back on. Doing so will resolve

many seeming ambiguities out of the box, without resort to Auer deference.

If genuine ambiguity remains, moreover, the agency’s reading must still be

reasonable. In other words, it must come within the zone of ambiguity the

court has identified after employing all its interpretive tools. (Note that

serious application of those tools therefore has use even when a regulation

turns out to be truly ambiguous. The text, structure, history, and so forth at

least establish the outer bounds of permissible interpretation.) Some courts

have thought . . . that at this stage of the analysis, agency constructions of

rules receive greater deference than agency constructions of statutes. But

that is not so. Under Auer, as under Chevron, the agency’s reading must

fall within the bounds of reasonable interpretation.

Kisor, 139 S.Ct. at 2415-16 (cleaned up).

As the Majority explains, no such ambiguity is apparent in this case, reading the

Code holistically and in light of the federal law that clearly has informed it. Accordingly, I

agree with the Majority that PUC is not entitled to relief.

14 In this regard, our own rules of construction provide that “[w]hen the words of the

statute are not explicit,” we “may” seek to glean the intention of General Assembly’s intent

by reviewing “administrative interpretations” of the statute. 1 Pa.C.S. § 1921(c)(8). But

the “may” is telling. Administrative interpretations bear utility only to the extent that they

have legal merit. The rule neither directs nor suggests that agency interpretations must

be accorded deferential weight.

[J-81-2019] [MO: Mundy, J.] - 15