Amicus Curiae Brief — Federal Communications Commission, et al., Petitioners v. Prometheus Radio Project, et al.

Supreme Court briefNov 23, 2020

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Nos. 19-1231, 19-1241

IN THE

Supreme Court of the United States

————

FEDERAL COMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA,

Petitioners,

PROMETHEUS RADIO PROJECT, ET AL.,

Respondents.

____________________________________________________________________________________________________

NATIONAL ASSOCIATION OF BROADCASTERS, ET

AL.,

Petitioners,

PROMETHEUS RADIO PROJECT, ET AL.,

Respondents.

____________________________________________________________________________________________________

On Writs of Certiorari to the

United States Court of Appeals

for the Third Circuit

__________________________________________________________________

BRIEF FOR AMICUS CURIAE AMERICANS FOR

PROSPERITY FOUNDATION IN SUPPORT OF

PETITIONERS

————

Michael Pepson

Counsel of Record

Eric R. Bolinder

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

mpepson@afphq.org

(571) 329-4529

Counsel for Amicus Curiae

November 23, 2020

TABLE OF CONTENTS

Table of Authorities……………………………………...ii

Brief of Amicus Curiae in Support of Petitioners .…...1

Interest of Amicus Curiae…….…………………….…...1

Summary of Argument….………………………….…...3

Argument………………….………………………….…...6

Section 202(h) Places a Thumb on the Scale in

Favor of Freedom……..…….……………….…....6

A. The Divided Panel Ignored Section 202(h)’s

Plain Language………...…………………………8

B. This Court Should Not Rely on Any Deference

Doctrines…………………...…………………….10

C. Courts May Not Rewrite Statutes for Policy

Reasons …………………………………………..12

II.

The 2-1 Panel Misapplied the APA Arbitrary

and Capricious Standard……………...………..15

III.

The 2-1 Panel’s Frustration of Congress’s

Textual Commands Has Harmed Competition

and Hamstrung Innovation …………..…….….17

IV.

This Court Should Reverse the Decision Below

Narrow

Straightforward

Statutory

Interpretation Grounds ..…………………...….19

Conclusion..……………….………………………….….25

TABLE OF AUTHORITIES

Cases

Page(s)

Am. Great Lakes Ports Ass’n v. Schultz,

962 F.3d 510 (D.C. Cir. 2020)............................... 16

Anderson v. Wilson,

289 U.S. 20 (1933) ................................................. 14

Baldwin v. United States,

140 S. Ct. 690 (2020) .......................5, 11, 19, 22, 23

Barnhart v. Sigmon Coal Co.,

534 U.S. 438 (2002) ............................................... 13

City of Arlington v. FCC,

569 U.S. 290 (2013) ........................................... 3, 23

Conn. Nat’l Bank v. Germain,

503 U.S. 249 (1992) ............................................... 13

Corley v. United States,

556 U.S. 303 (2009) ............................................... 10

Fox Television Stations, Inc. v. FCC

(Fox I),

280 F.3d 1027 (D.C. Cir. 2002)....................... 6, 7, 9

Fox Television Stations, Inc. v. FCC

(Fox II),

293 F.3d 537 (D.C. Cir. 2002)............................. 6, 7

Gundy v. United States,

139 S. Ct. 2116 (2019) ........................................... 23

iii

Henson v. Santander Consumer USA,

137 S. Ct. 1718 (2017) ..................................... 13, 25

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) ..................................... 11, 23

K Mart Corp. v. Cartier,

486 U.S. 281 (1988) ................................................. 9

La. Pub. Serv. Com v. FCC,

476 U.S. 355 (1986) ............................................... 25

Lamie v. United States Tr.,

540 U.S. 526 (2004) ......................................... 13, 14

Lexecon Inc. v. Milberg Weiss Bershad

Hynes & Lerach,

523 U.S. 26 (1998) ................................................... 8

Lomax v. Ortiz-Marquez,

140 S. Ct. 1721 (2020) ........................................... 13

Loving v. United States,

517 U.S. 748 (1996) ............................................... 23

Malwarebytes, Inc. v. Enigma Software

Grp. USA, LLC,

208 L.Ed.2d 197 (Oct. 13, 2020) ........................... 21

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ................................ 24

Me. Cmty. Health Options v. United

States,

140 S. Ct. 1308 (2020) ............................................. 8

Michigan v. Envtl. Prot. Agency,

135 S. Ct. 2699 (2015) ........................................... 24

National Cable & Telecomms. Ass’n v.

Brand X Internet Servs.,

545 U.S. 967 (2005) ....................................... passim

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ............................................... 14

Nichols v. United States,

136 S. Ct. 1113 (2016) ........................................... 14

NRDC v. Abraham,

355 F.3d 179 (2d Cir. 2004) .................................... 6

Osborn v. President, Dirs. & Co. of

Bank,

22 U.S. (9 Wheat.) 738 (1824) .............................. 13

Prometheus Radio Project v. FCC

(Prometheus I),

373 F.3d 372 (3d Cir. 2004) .................... 5, 6, 7, 8, 9

Prometheus Radio Project v. FCC

(Prometheus III),

824 F.3d 33 (3d Cir. 2016) ...................................... 8

Richards v. United States,

369 U.S. 1 (1962) ................................................... 14

Stone v. INS,

514 U.S. 386 (1995) ............................................... 10

Talk Am., Inc. v. Mich. Bell Tel. Co.,

564 U.S. 50 (2011) ..................................... 11, 24, 25

United States v. Home Concrete &

Supply, LLC,

566 U.S. 478 (2012) ......................................... 22, 23

United States v. Tohono O’odham,

563 U.S. 307 (2011) ............................................... 14

Constitution

U.S. Const. Art. I, § 1 ............................................. 5, 23

U.S. Const. Art. II, § 3 ................................................ 23

U.S. Const. Art. III ..................................................... 21

Statutes

47 U.S.C. § 303 note (§ 202(h)) .......................... passim

Rules

Sup. Ct. Rule 10(a)...................................................... 21

Sup. Ct. Rule 37.3 ......................................................... 1

Other Authorities

Andrew Jay Schwartzman et al.,

Section 202(h) of the

Telecommunications Act of 1996:

Beware of Intended Consequences,

58 Fed. Comm. L.J. 581 (2006) ............................ 12

Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of

Legal Texts (2014) ..................................... 12, 13, 14

Benjamin N. Cardozo,

The Nature of the Judicial Process

(1921) ...................................................................... 13

Note, Judicial Review of Administrative

Inaction,

83 Colum. L. Rev. 627 (1983) ............................... 15

Peter DiCola,

Note, Choosing Between the Necessity

and Public Interest Standards in FCC

Review of Media Ownership Rules,

106 Mich. L. Rev. 101 (2007) .................................. 9

S. Rep. No. 104-230 ...................................................... 7

The FCC’s Authority to Interpret Section

230 of the Communications Act (Oct.

21, 2020) ..................................................... 20, 21, 22

vii

William R. Richardson, Jr.,

The FCC’s Television Duopoly Rule: Is

the Third Time the Charm?,

15 CommLaw Conspectus 1 (2006)................. 9, 10

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Under Supreme Court Rule 37.3, Americans for

Prosperity Foundation (“AFPF”) respectfully submits

this amicus curiae brief in support of Petitioners.1

INTEREST OF AMICUS CURIAE

Amicus curiae AFPF is a 501(c)(3) nonprofit

organization committed to educating and training

Americans to be courageous advocates for the ideas,

principles, and policies of a free and open

society. Some of those key ideas are the separation of

powers and constitutionally limited government.

AFPF also believes that free and fair competition

fosters technological innovation, which, in turn,

benefits consumers and society as a whole. As part of

this mission, it appears as amicus curiae before

federal and state courts.

AFPF has a particular interest in this case because

it believes that the Third Circuit panel has

erroneously frustrated the FCC’s efforts to honor and

fulfill Congress’s policy decisions, as set forth in the

plain language of Section 202(h) of the

Telecommunications Act of 1996, to promote

competition and economic efficiency in the

marketplace of ideas by removing wrongful regulatory

1 All parties have consented to the filing of this brief.

No counsel

for a party authored this brief in whole or in part and no person

other than amicus made any monetary contributions intended to

fund the preparation or submission of this brief.

barriers.2 AFPF is concerned that the panel’s

seventeen-year freeze on the deregulatory process

envisioned by Section 202(h) hamstrings competition

in light of dramatic changes in technology and

innovation over that time period.

More broadly, AFPF writes separately to urge this

Court to issue a narrow decision interpreting Section

202(h). At its core, this case presents a familiar

question: which branch of government is responsible

for making public policy and how? The answer, of

course, is Congress through duly enacted legislation,

as Article I makes clear. But this case raises a

familiar Goldilocks problem.

Too often, federal

agencies overstep their authority by substituting their

policy preferences for those mandated by Congress in

the law. Here, however, something even more

egregious occurred: a 2-1 judicial panel erroneously

imported atextual policy considerations into the text

of the statute. Neither the FCC nor Article III courts

should be in the business of substituting their policy

preferences for those of Congress, as set forth in the

text of statutes.

While AFPF believes the divided panel’s mistaken

venture into judicial policymaking here is in error, it

also rejects the FCC’s misguided request for

extraconstitutional “deference” under the judicially

AFPF believes that administrative deference doctrines are

inconsistent with the U.S. Constitution. Accordingly, AFPF

respectfully parts ways with the FCC insofar as the agency relies

on Chevron deference. AFPF writes separately to urge this Court

to reject the panel’s misguided effort to rewrite Section 202(h) on

narrow statutory interpretation grounds. AFPF takes no position

here as to the constitutional status of independent agencies.

created Chevron regime. The FCC itself has been at

the heart of several controversial administrative

agency deference decisions that have had problematic

real-world impacts, and which appear to be, at the

least, in tension with the U.S. Constitution and the

separation of powers. This case need not, and should

not, be the next National Cable & Telecomms. Ass’n v.

Brand X Internet Servs., 545 U.S. 967 (2005), or City

of Arlington v. FCC, 569 U.S. 290 (2013). And any

broader ruling invites mischief.

AFPF’s concerns are not speculative. Indeed, the

FCC has recently indicated that it believes itself (and

not Article III courts) to be the “authoritative

interpreter” of Section 230, to the extent it is

“ambiguous,” to expand the scope of its jurisdiction.

The FCC claims this power based on a toxic mixture

of Brand X and City of Arlington. While the proper

interpretation of Section 230 is beyond the scope of

this case, AFPF wishes to alert this Court to potential

collision course the FCC may be on with the U.S.

Constitution and separation of powers.

SUMMARY OF ARGUMENT

The Third Circuit has repeatedly frustrated the

FCC’s attempts to follow Congress’s clear commands,

substituting its views for those of the legislature.

Enough is enough. Under the separation of powers,

federal courts, no less than federal agencies, are

constrained by and must honor Congress’s intent, as

expressed in the text of federal statutes. That did not

happen here. Instead, the 2-1 Third Circuit panel

appears to have misconstrued the statute to judicially

import atextual public policy considerations at odds

with Congress’s policy decisions, as set forth in

Section

202(h)’s

text

and

the

1996

Telecommunications Act’s structure, read as a whole.

At bottom, the core issue this case presents is not

whether certain FCC ownership rules are sound

public policy or whether Congress’s deregulatory

mandate was a good idea. Nor does this case

necessarily implicate the Chevron regime, which itself

is of dubious constitutional provenance. Instead, this

case is about which branch of government is

constitutionally tasked with making policy decisions

and the process by which it should make those policy

decisions. Under Article I of the U.S. Constitution,

that is Congress. And under Article III, the federal

judiciary is tasked with interpreting the text of

Congress’s legislative handiwork, however flawed or

imperfect, in the context of concrete cases and

controversies. But tinkering with the public policy

decisions Congress has made, as the 2-1 panel has

done, exceeds the judiciary’s authority and crosses the

line into a legislative function.

Here, Congress, by statute, mandated an iterative,

ongoing deregulatory process. Section 202(h) requires

that the FCC “shall” review its ownership rules every

few years to “determine whether any of such rules are

necessary in the public interest as the result of

competition,” and to “repeal or modify any regulation

it determines to be no longer in the public interest.”

47 U.S.C. § 303 note. The plain language of Section

202(h) thus establishes a deregulatory presumption

through which the FCC’s actions should be viewed.

And it contemplates that, at the least, the FCC will

make changes to those rules every few years to

account for changing technology and circumstances.

That is the purpose of Section 202(h), which reflects

Congress’s reality-driven decision in the 1996

Telecommunications Act to require the FCC to

regularly update its rules with an eye toward

deregulation, unless the proponents of the restrictions

could meet their burden of showing restrictions were

warranted, which they have not even attempted to do.

Yet two judges from the same panel have

repeatedly frustrated Congress’s clear intent and

public policy decision that the FCC’s rules must be

regularly updated with a deregulatory tilt now for a

period of seventeen years. Indeed, in 2004, Chief

Judge Scirica observed that the panel majority

“substituted its own policy judgment for that of the

Federal Communications Commission and upset the

ongoing review of broadcast media regulation

mandated by Congress in the Telecommunications

Act of 1996.” Prometheus Radio Project v. FCC

(Prometheus I), 373 F.3d 372, 435 (3d Cir. 2004)

(Scirica, C.J., concurring in part, dissenting in part).

It is now 2020. And at least in this case, the more

things change the more they stay the same.

Leaving for another day the broader question of

appropriate limits on administrative agency

authority,3 federal courts should not be in the

business of judicial lawmaking, let alone actively

frustrating public policy choices made by Congress in

the text of duly enacted federal statutes—and now for

nearly two decades. That is not the judicial role. And

3 The Constitution vests “all legislative Powers herein granted .

. . in a Congress of the United States.” See U.S. Const. Art. I, §

1. Congress is thus tasked with making policy choices through

legislation. See Baldwin v. United States, 140 S. Ct. 690, 691

(2020) (Thomas, J., dissenting from denial of certiorari).

this state of affairs should not be allowed to continue,

particularly in such a consequential area.

This Court should reverse the Third Circuit’s

judicially imposed roadblock to Congress’s clear intent

on straightforward, narrow statutory interpretation

grounds focusing solely on the statutory text. No

more, and no less.

ARGUMENT

SECTION 202(H)’S TEXT PLACES A THUMB ON

THE SCALE IN FAVOR OF FREEDOM.

Congress, at times, statutorily places a thumb on

the scale in favor of increasingly stringent standards,

obligating agencies to revisit regulations periodically

to determine whether to heighten requirements in

light of legislatively specified factors. See, e.g., NRDC

v. Abraham, 355 F.3d 179, 195 (2d Cir. 2004).

Here, however, Congress did the exact opposite,

putting its thumb strongly on the scale in favor of

deregulation over time. Congress is free to make that

policy choice, as it did here, making clear that Section

202(h) should generally operate as a downward

ratchet against anticompetitive restraints over time.

But cf. Prometheus I, 373 F.3d at 394 (declining to

“accept that the ‘repeal or modify in the public

interest’ instruction must therefore operate only as a

one-way ratchet”). Indeed, the plain purpose of

Section 202(h) is “to continue the process of

deregulation” that “Congress set in motion” through

the 1996 Act. See Fox Television Stations, Inc. v. FCC

(Fox I), 280 F.3d 1027, 1033 (D.C. Cir. 2002), modified

on reh’g 293 F.3d 537 (D.C. Cir. 2002).

The Third Circuit itself “acknowledge[d] that

§ 202(h) was enacted in the context of deregulatory

amendments (the 1996 Act) to the Communications

Act[.]” Prometheus I, 373 F.3d at 394. “The 1996 Act

contemplated a ‘pro-competitive, de-regulatory

national policy framework designed to accelerate

rapidly private sector development of advanced

telecommunications and information technologies and

services to all Americans by opening all

telecommunications markets to competition.’” Id. at

384 (quoting S. Rep. No. 104-230, at 1–2 (1996)). As

Chief Judge Scirica put it, it has a “deregulatory

flavor.” Id. at 443 (Scirica, C.J., dissenting in part,

concurring in part). The D.C. Circuit also found

“Section 202(h) carries with it a presumption in favor

of repealing or modifying the ownership rules.” Fox I,

280 F.3d at 1048.4 Indeed, “the mandate of § 202(h)

might better be likened to Farragut’s order at the

battle of Mobile Bay (‘Damn the torpedoes! Full speed

ahead.’)” Id. at 1044. Unfortunately, the Third Circuit

has re-written Congress’s commands here.

Unfortunately, the panel below ignored the plain

language of Section 202(h) to substitute its own public

policy judgments for those made by Congress, which

unambiguously reoriented the FCC in a deregulatory

and thus procompetitive direction through the 1996

Telecommunications Act.5 That was error.

This portion of the opinion was subsequently removed as

unnecessary to the decision. See Fox Television Stations, Inc. v.

FCC (Fox II), 293 F.3d 537, 540 (D.C. Cir. 2002).

5 Under Section 202(h), “[t]he ‘presumption’. . . is that a

regulation will be vacated or modified if it does not continue to

A. The Divided Panel Ignored

202(h)’s Plain Language.

Section

Under Section 202(h), every four years the FCC

“shall review [certain of] its rules” and “shall

determine whether any of such rules are necessary in

the public interest as the result of competition.” 47

U.S.C. § 303 note (emphasis added). And the FCC

“shall repeal or modify any regulation it determines

to be no longer in the public interest.” Id. (emphasis

added). These tasks are not optional; instead,

Congress decided to continually task the FCC with

this deregulatory work.

“The first sign that the statute imposed an

obligation is its mandatory language: ‘shall.’” Me.

Cmty. Health Options v. United States, 140 S. Ct.

1308, 1320 (2020) (cleaned up). So too here. Section

202(h)’s “instruction comes in terms of the mandatory

‘shall,’ which normally creates an obligation

impervious to judicial discretion.” Lexecon Inc. v.

Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26,

35 (1998). The Third Circuit panel majority has held

“Section 202(h) . . . uses unmistakably mandatory

language in describing the Commission’s obligations.”

Prometheus Radio Project v. FCC (Prometheus III),

824 F.3d 33, 50 (3d Cir. 2016).

As the language of Section 202(h) makes clear, the

1996 Act compelled a regularly occurring, iterative

process to deregulate the telecommunications space

be in the public interest. This is different from the traditional

approach to rule retention, which would counsel for retention of

a rule unless there were reasons to change it.” Prometheus I, 373

F.3d at 443 (Scirica, C.J., dissenting in part, concurring in part).

and promote competition. This was consistent with

the practical reality that technology is constantly

changing as our society innovates. While Congress

left some play in the joints to iron out the details, one

thing is clear: Congress wanted changes to the rules

to occur every few years—trending toward

deregulation—absent a demonstrable reason not to do

so. And unlike many statutory schemes, proponents

supporting the regulatory status quo are the ones who

must carry the burden of proving (with evidence) why

the old rules should be retained.6 See also Prometheus

I, 373 F.3d at 443 (Scirica, C.J., dissenting in part,

concurring in part).

“In ascertaining the plain meaning of the statute,

the [C]ourt must look to the particular statutory

language at issue, as well as the language and design

of the statute as a whole.” K Mart Corp. v. Cartier, 486

U.S. 281, 291 (1988). The 1996 Act’s structure and

design further confirms that Section 202(h) places

Congress’s heavy thumb on the scale in favor of

regular deregulation. See Fox I, 280 F.3d at 1033

(discussing Congress’s deregulatory purpose).

Otherwise, why would Congress have enacted

Section 202(h) into law? “[W]hether it has merely a

‘deregulatory tenor’ or rises to the level of a

‘deregulatory presumption,’ section 202(h) must have

6 Section 202(h) “placed the burden of proof on the FCC to defend

any media ownership rule it seeks to retain; and . . . set a

standard of review that the FCC must meet to satisfy that

burden of proof.” Peter DiCola, Note, Choosing Between the

Necessity and Public Interest Standards in FCC Review of Media

Ownership Rules, 106 Mich. L. Rev. 101, 104 (2007).

been intended to mean something more than what

existing administrative law principles already

required.” William R. Richardson, Jr., The FCC’s

Television Duopoly Rule: Is the Third Time the

Charm?, 15 CommLaw Conspectus 1, 8 (2006). After

all, “[w]hen Congress acts to amend a statute,”

Congress presumably “intends its amendment to have

real and substantial effect.” Stone v. INS, 514 U.S.

386, 397 (1995). And “a statute should be construed

so that effect is given to all its provisions, so that no

part will be inoperative or superfluous, void or

insignificant[.]”Corley v. United States, 556 U.S. 303,

314 (2009). Here, the plain language of Section 202(h)

shows its intended—mandated—effect required the

FCC to change its rules every few years, trending in a

deregulatory direction.

Despite all this, the divided panel below has

ignored and frustrated Congress’s legislative

decisions for almost two decades by effectively

freezing in place an outdated regulatory regime and

the public policies underlying that regime. When

Congress enacted Section 202(h), it envisioned the

FCC should have implemented several revisions of its

rules by now, trending towards a light touch

approach. Despite the FCC’s best efforts, that hasn’t

happened. Two judges have wielded enormous and

unlawful power, effectively blocking advancement of

public policy decisions Congress—not the FCC—

clearly established.

B. This Court Should Not Rely on Any

Deference Doctrines.

This case need not, and should not, be resolved

through any constitutionally questionable deference

regimes. See Baldwin v. United States, 140 S. Ct. 690

(2020) (Thomas, J., dissenting from the denial of

certiorari); Talk Am., Inc. v. Mich. Bell Tel. Co., 564

U.S. 50, 67 (2011) (Scalia, J., concurring) (“I join the

opinion of the Court. I would reach the same result

even without benefit of the rule that we will defer to

an agency’s interpretation of its own regulations[.]”).

As Justice Kavanaugh suggested, “the [Chevron]

footnote 9 principle,” which requires courts to

independently use all traditional tools of statutory

interpretation, “taken seriously, means that courts

will have no reason or basis to put a thumb on the

scale in favor of an agency[.]” Kisor v. Wilkie, 139 S.

Ct. 2400, 2448 (2019) (Kavanaugh, J., concurring).

Instead, this Court should reverse the panel

decision below because the two-judge majority has,

over the past nearly 20 years, failed in its duty to

ensure that Congress’s policy choices as set forth in

the statute are implemented. That is the error here.

Any attempt to shift blame onto the FCC for its

efforts to comply with Section 202(h) is a strawman

for the real issue. The FCC has long tried to change

its outdated rules. At the least, the FCC’s actions in

this regard have been in the ballpark of honoring

Congress’s policy choices. Yet the 2-1 panel’s nearly

twenty-year crusade of blocking the iterative

deregulatory process, however well intentioned, has

now ventured far into left field, well beyond the

ballpark of Congress’s choices.

At the very least, this fourth round should have

alerted the panel to the possibility that its actions

(and not the FCC’s) were not in accord with what

Congress wanted. But the panel below appears to

have mistakenly placed undue weight on atextual

policy issues, while ignoring Congress’s deregulatory

mandate, as set forth in Section 202(h)’s text. This

Court should not allow this to stand. Congress, not

the judiciary, legislates.

C. Courts May Not Rewrite Statutes for

Policy Reasons.

To be sure, Section 202(h) has been subject to

extensive criticism by advocates. These advocates

believe Congress should not have passed Section

202(h) because its plain deregulatory intent does not

suit their public policy preferences. See, e.g., Andrew

Jay Schwartzman et al., Section 202(h) of the

Telecommunications Act of 1996: Beware of Intended

Consequences, 58 Fed. Comm. L.J. 581, 586 (2006)

(“Despite the attempt to deregulate through the back

door, it would seem that the courts have resolved

ambiguities relating to the interpretation of Section

202(h) in favor of making it a less intrusive

provision.”). That may or may not be true. But that’s

for them to take up with Congress, not the courts.

Whether government regulatory mandates

relating to media ownership are a wise idea as a

matter of policy is not a question our Constitution

tasks the federal judiciary with answering. See also

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts, 352–54 (2014).

“Questions like these are appropriately asked by those

who write the laws, but not by those who apply

them.”7 Id. at 352–53. Conversely, the relevant

judicial inquiry is what the statute actually says.

The “proper role of the judiciary . . . [is] to apply,

not amend, the work of the People’s representatives.”

Henson v. Santander Consumer USA Inc., 137 S. Ct.

1718, 1726 (2017). “Judicial power is never exercised

for the purpose of giving effect to the will of the Judge;

always for the purpose of giving effect to the will of the

Legislature; or, in other words, to the will of the law.”

Osborn v. President, Dirs. & Co. of Bank, 22 U.S. (9

Wheat.) 738, 866 (1824) (Marshall, C.J.). A judge “is

not a knight-errant roaming at will in pursuit of his

own ideal of beauty or of goodness.” Benjamin N.

Cardozo, The Nature of the Judicial Process 141

(1921). Instead, it is a judge’s “duty to call balls and

strikes[.]” Lomax v. Ortiz-Marquez, 140 S. Ct. 1721,

1724 (2020).

“[C]ourts must presume that a legislature says in

a statute what it means and means in a statute what

it says there.” Conn. Nat’l Bank v. Germain, 503 U.S.

249, 253–54 (1992). “If Congress enacted into law

something different from what it intended, then it

should amend the statute to conform it to its intent.”

Lamie v. United States Tr., 540 U.S. 526, 542 (2004).

It is not for Article III courts to look beyond the

statute’s text to attempt to divine what Congress

7 “These are battles that should be fought among the political

branches and the industry. Those parties should not seek to

amend the statute by appeal to the Judicial Branch.” Barnhart

v. Sigmon Coal Co., 534 U.S. 438, 462 (2002).

subjectively intended or must have really meant but

did not say in the statute’s text.8

Instead, courts “are bound to operate within the

framework of the words chosen by Congress[.]”

Richards v. United States, 369 U.S. 1, 10 (1962)

(Warren, C.J.). It is not the role of a court to “pause to

consider whether a statute differently conceived and

framed would yield results more consonant with

fairness and reason.” Anderson v. Wilson, 289 U.S. 20,

27 (1933) (Cardozo, J.); see also Nat’l Fed’n of Indep.

Bus. v. Sebelius, 567 U.S. 519, 588 (2012). And

“considerations of policy divorced from the statute’s

text and purpose c[an] not override its meaning.”

United States v. Tohono O’odham Nation, 563 U.S.

307, 317 (2011).

Here, however, the Third Circuit panel effectively

“enlarge[d]” Section 202(h) to add language that it

perhaps believed “was omitted, presumably by

inadvertence[.]” Nichols v. United States, 136 S. Ct.

1113, 1118 (2016) (citation omitted). That was error.

“To supply omissions transcends the judicial

function.” Id. (citation omitted); see also Lamie, 540

U.S. at 542 (“It is beyond our province to

rescue Congress from its drafting errors, and to

provide for what we might think . . . is the preferred

result.” (cleaned up)).

There should be no serious argument that the absurdity

doctrine would apply here. See Scalia & Garner, supra, at 234–

39 (discussing limited circumstances absurdity doctrine applies).

II.

THE 2-1 PANEL MISAPPLIED THE APA

ARBITRARY AND CAPRICIOUS STANDARD.

The 2-1 panel compounded its statutory

interpretation errors by effectively rewriting Section

202(h) to also add procedural requirements onto the

APA, which it may not do. As a threshold matter,

robust application of the arbitrary and capricious

standard to agency actions restricting liberty is a good

thing. If an administrative agency acts to restrict

liberty, impose compliance costs, or deprive

businesses and individuals of property or their

livelihoods, the agency bears a heavy burden of

showing its work, among other requirements. These

types of agency decisions should not be based on junk

science, unreasonably incomplete data, or policydriven “expert” conjecture.

But the arbitrary and capricious standard was

never intended to prevent federal agencies from

removing outdated regulatory restrictions. Nor was it

intended to provide a mechanism for judges to

frustrate Congress’s deregulatory intentions, as

expressed in statutes. It would be perverse for a court

to foist upon a federal agency some judicially-created

duty to conduct research projects as a condition

precedent to lifting restrictions on liberty—and all at

taxpayer expense. Cf. Note, Judicial Review of

Administrative Inaction, 83 Colum. L. Rev. 627, 670

& n.273 (1983) (“Professor, now Judge, Scalia has

argued that courts should always give deregulation or

the failure to regulate greater deference than is given

to agency decisions to regulate.”). If one holds the APA

does not require federal agencies to perform empirical

research as a condition of restricting liberties and

imposing onerous compliance duties, then surely the

APA cannot be construed to require taxpayer-funded

empirical research as a condition of restoring freedom

and competition.

Indeed, as Judge Rao of the D.C. Circuit recently

explained: “The APA . . . imposes no general obligation

on agencies to produce empirical evidence. . . . [A]n

agency need not—indeed cannot—base its every

action upon empirical data; depending upon the

nature of the problem.” Am. Great Lakes Ports Ass’n

v. Schultz, 962 F.3d 510, 516 (D.C. Cir. 2020) (Rao, J.);

see also Pet. App. 50a & n.2 (Scirica, C.J., concurring

in part, dissenting in part) (“To the extent my

colleagues require the FCC to conduct empirical

analysis on remand, they risk impermissibly adding

requirements beyond the APA.”). Nor does Section

202(h) impose any such requirements, which would

frustrate Congress’s clear intent. “[N]either Section

202(h) nor the APA requires the FCC to quantify the

future effects of its new rules as a prerequisite to

regulatory action.” Pet. App. 48a (Scirica, C.J.,

dissenting in part, concurring in part). Instead,

“Congress prescribed an iterative process; the FCC

must take a fresh look at its rules every four years.”

Pet. App. 48a (Scirica, C.J., dissenting in part,

concurring in part).

Nonetheless, the panel, in essence, imported an

atextual heightened standard of review into the FCC

rule review process under the guise of arbitrary and

capricious review, shifting the burden onto the FCC to

justify easing restrictions. The result of this

impossibly high de facto standard is predictable and

outcome determinative: the status quo cannot change.

That is the exact opposite of what Congress intended.

Under Section 202(h), “[t]he FCC must ‘repeal or

modify’ rules that cease to serve the public interest

even when it lacks optimal data.” Pet. App. 52a

(Scirica, C.J., dissenting in part, concurring in part)

(citing Telecommunications Act of 1996, § 202(h)).

With its own, judge-made procedural rules, the Third

Circuit has now frustrated that imperative for nearly

two decades.

III.

THE 2-1 PANEL’S FRUSTRATION OF CONGRESS’S

TEXTUAL

COMMANDS

HAS

HARMED

COMPETITION AND HAMSTRUNG INNOVATION.

The panel has also stymied competition and

innovation. “The Telecommunications Act of 1996

mandates that the Federal Communications

Commission (FCC) regularly review its broadcast

media ownership rules to ensure they remain in step

with the demands of a rapidly evolving marketplace.”

Pet. App. 39a (Scirica, C.J., dissenting in part and

concurring in part). “Embodied in Section 202(h) is

the imperative that the broadcast ownership rules

stay in sync with the media marketplace.” Pet. App.

42a (Scirica, C.J., dissenting in part and concurring in

part). That has not happened here.

As discussed above, the plain language of Section

202(h) is iterative and deregulatory. By preventing

the FCC from carrying out its Section 202(h) duties

for almost two decades by freezing the status quo in

place, the 2-1 panel mistakenly embarked on a judicial

policymaking venture that squarely conflicts with

Section 202(h)’s text. This has harmed competition

and innovation, as technology continues to rapidly

change.

Experience has shown that, at the very least,

absent legitimate and demonstrated antitrust

concerns not at issue here, media ownership

restrictions should not exist. Here, for example, the

current media ownership rules that the panel has

wrongly locked into place have had the perverse effect

of hamstringing traditional media’s efforts to adapt in

the face of online competition, which did not exist

when those rules were first promulgated.

That

concern is not theoretical, as the International Center

for Law and Economics (“ICLE”) and others have

explained. See Br. of ICLE as Amicus Curiae in

Support of Petitioners, National Association of

Broadcasters et al. v. Prometheus Radio Project et al.,

No. 19-1241, at 3, 5–6, 17–21 (U.S., filed May 22,

2020); Br. of ABC Television Affiliates Association et

al. in Support of Petitioners, National Association of

Broadcasters et al. v. Prometheus Radio Project et al.,

No. 19-1241 (U.S., filed May 22, 2020).

In today’s environment it has become fashionable

in many quarters to pin the blame for traditional

media’s plight on social media’s purportedly loose

regulatory environment. Not so, and this suggestion

should be rejected out of hand. Instead, Congress

wanted the FCC to deregulate the traditional media

industry, but the divided panel has frustrated this

process. The answer to increased online competition

with traditional media is not increased regulation of

social media.

Rather, the solution is maximal

deregulation of media ownership, getting government

out of the way.

IV.

THIS COURT SHOULD REVERSE THE DECISION

BELOW ON NARROW STRAIGHTFORWARD

STATUTORY INTERPRETATION GROUNDS.

As shown above, the 2-1 panel decision ignored

Section 202(h)’s plain language, as well as the

structure, context, and purpose of the 1996

Telecommunications Act, when read as a whole. The

panel substituted its policy preferences for those

mandated by Congress. That should end the matter.

The FCC—and Section 202(h)—is something of a

special case, and the issues presented here are

unique. Accordingly, this Court should issue a narrow

statutory interpretation decision, so as to allow the

FCC to comply with its mandatory deregulatory

duties in furtherance of promoting competition,

without undue interference from the divided panel.

This Court should reject invitations by any party

to craft any broad new rules of judicial deference for

agency decisions. Such a ruling could have severe and

adverse long-term implications radiating beyond this

case. A perfect example of this is Brand X, which was

decided in a similar context but resulted in a new

judicially created deference doctrine that agencies

have used to override the decisions of Article III

courts.

As Justice Thomas recently explained,

“[r]egrettably, Brand X has taken this Court to the

precipice of administrative absolutism. . . . Brand X

may well follow from Chevron, but in so doing, it

poignantly lays bare the flaws of our entire executivedeference jurisprudence.” Baldwin, 140 S. Ct. at 695

(Thomas, J., dissenting from the denial of certiorari).

Nor should this Court accept any invitations to graft

onto the APA’s arbitrary and capricious standard

atextual preconditions

compliance burdens.

relaxing

regulatory

This Court should not be swayed by the FCC’s

sweeping extraconstitutional Chevron deference

demands here, which are unnecessary for this Court’s

interpretation of Section 202(h) and resolution of this

pure question of statutory interpretation. This is

particularly important because the FCC has recently

indicated that it may plan to attempt to retroactively

alter judicial interpretations—as well as the plain

text—of Section 230 through regulations using Brand

X and then demand Chevron deference for these

potential regulatory changes in an effort expand its

jurisdiction under the banner of City of Arlington.

The FCC is quite candid on this point:

The fact that courts have been

interpreting Section 230 for years does

not prevent the Commission from

construing its ambiguous terms. As the

Supreme Court held in National Cable &

Telecomms. Ass’n v. Brand X Internet

Servs., 545 U.S. 967 (2005), the FCC may

act as the “authoritative interpreter” of

ambiguous provisions in statutes like the

Communications Act that it administers,

and nothing “preclude[s] agencies from

revising unwise judicial constructions of

ambiguous statutes.” Section 230 allows

the FCC to determine whether courts

have appropriately interpreted its

proper scope. . . . Under Brand X, the

FCC may review these judicial

interpretations to determine whether

they reflect the best reading of the

statute. Indeed, an agency’s role as

“authoritative interpreter” may be

particularly useful where, as here, courts

have reached divergent interpretations

of key provisions of an important statute,

thus creating substantial uncertainty

and disharmony in the law.

The FCC’s Authority to Interpret Section 230 of the

Communications

Act

(Oct.

21,

2020),

https://www.fcc.gov/news-events/blog/2020/10/21/fccsauthority-interpret-section-230-communications-act.

Contrary to the FCC’s suggestion, this Court is

tasked as the “authoritative interpreter” of statutes,

not the FCC. See U.S. Const., Art. III. And this Court

resolves circuit splits. See Rule 10(a). Remarkably,

the FCC claimed this power to resolve circuit splits

less than two weeks after Justice Thomas suggested

that this Court should decide how that exact provision

should be properly interpreted in an appropriate case,

after full briefing on the merits. See Malwarebytes,

Inc. v. Enigma Software Grp. USA, LLC, 208 L.Ed.2d

197, 202 (Oct. 13, 2020) (Thomas, J., statement

respecting the denial of certiorari) (“Without the

benefit of briefing on the merits, we need not decide

today the correct interpretation of §230. But in an

appropriate case, it behooves us to do so.”).

Regrettably, the FCC appears to have mistakenly

misconstrued Justice Thomas’s suggestion that this

Court should grant certiorari in a proper case to

independently interpret Section 230 as an open

invitation for the FCC to step into the Supreme

Court’s shoes and resolve an alleged circuit split.9

The FCC’s statements on its purported Brand X

power to resolve circuit splits bring into stark relief

Justice Thomas’s recent observation that “Brand X

appears to be inconsistent with the Constitution, the

Administrative Procedure Act (APA), and traditional

tools of statutory interpretation” and thus should be

revisited.10 Baldwin, 140 S. Ct. at 691 (Thomas, J.,

dissenting from the denial of certiorari). Consider, for

example, a world in which this Court does grant

review in a Section 230 case involving private parties

and, after de novo review, independently interprets

the statute’s scope. Under Article III of the

Constitution, that should end the matter, unless and

until Congress chooses to amend the statute. Does

Brand X somehow authorize the FCC to reinterpret

Section 230 to overrule this Court? 11 The answer

9 Regarding Section 230, however, there are no real circuit splits.

The courts have been clear in their interpretation of this statute.

See Comment of AFPF 9–12, 17–34, In the matter of the Nat’l

Telecomm. & Info. Admin.’s Pet. to Clarify Provisions of Section

230 of the Commc’n’s Act of 1934, as Amended, FCC RM No.

11862 (Sept. 1, 2020), available at https://bit.ly/388Ubv1.

10 The FCC has stated: “[T]he only question is whether the FCC

or a federal court will do the interpreting.” The FCC’s Authority

to Interpret Section 230 of the Communications Act (Oct. 21,

2020),

https://www.fcc.gov/news-events/blog/2020/10/21/fccsauthority-interpret-section-230-communications-act.

11 This has happened before. In United States v. Home Concrete

& Supply, LLC, 566 U.S. 478 (2012), the IRS claimed to possess

the power, under Brand X, to overrule this Court. But this Court

has “never said an agency can change what we’ve said the law

means.” Oral Arg. Tr. at 55:8–9, United States v. Home Concrete

surely must be “no.” The FCC’s recent statements

thus showcase why Brand X and Chevron should be

squarely overruled. See also Baldwin, 140 S. Ct. at

695 (Thomas, J., dissenting from the denial of

certiorari); Kisor, 139 S. Ct. at 2446 n.114 (Gorsuch,

J., concurring in the judgment); City of Arlington, 569

U.S. at 315 (Roberts, C.J., dissenting).

Whatever the proper interpretation of Section 230

immunity may be, and whether those court decisions

interpreting Section 230 were properly decided, is

beyond the scope of this case. But this Court should be

aware of the longer term implications of any broad

ruling here, particularly to the extent the FCC

pursues regulatory changes to Section 230 that

purport to overrule Article III courts or override

Congress, all in violation of the separation of powers.

The federal Constitution tasks Congress with

enacting legislation, subject to bicameralism and

presentment; Article I vests “[a]ll legislative Powers

herein granted” in Congress, U.S. Const. art. I, §1, not

the courts and not the Executive branch. Gundy v.

United States, 139 S. Ct. 2116, 2123 (2019)

(confirming “that assignment of power to Congress is

a bar on its further delegation.”); Loving v. United

States, 517 U.S. 748, 758 (1996) (“[T]he lawmaking

function belongs to Congress . . . and may not be

conveyed to another branch or entity.”). Article II

tasks the Executive Branch with faithfully executing

the law. U.S. Const. Art. II, § 3. Article III “vests the

& Supply, LLC, No. 11-139 (U.S. Jan. 17, 2012). The Court

rejected the IRS’s overreach. Home Concrete, 566 U.S. at 485–87.

judicial power exclusively in Article III courts, not

administrative agencies.” Michigan v. Envtl. Prot.

Agency, 135 S. Ct. 2699, 2712 (2015) (Thomas, J.,

concurring). Under Article III, “[i]t is emphatically the

province and duty of the judicial department to say

what the law is.” Marbury v. Madison, 5 U.S. (1

Cranch) 137, 177 (1803).

It is not for the FCC to be the “authoritative

interpreter” of statutes. Instead, Article III of the U.S.

Constitution tasks Article III courts with interpreting

the law in the context of concrete cases and

controversies. And it is ultimately this Court’s role to

be the “authoritative interpreter.”

As Goldilocks teaches, the porridge should not be

too cold or too hot but just right. So too here. Our

Constitution’s system of checks and balances reflects

this, keeping each of the three constitutionally created

branches of government in their proper role. While in

this particular case it was the 2-1 panel that erred by

mistakenly venturing into judicial policymaking, in

the next case it may be the FCC that strays from the

statutory text and the U.S. Constitution. Cf. Talk

Am., Inc., 564 U.S. at 69 (Scalia, J., concurring) (Auer

deference unnecessary to decision).

The cure for the 2-1 panel’s mistaken venture into

judicial policymaking should not be worse than the

disease. A decision rejecting the panel’s error should

not facilitate any future attempts by the FCC to

violate the separation of powers by, among other

things, purporting to overrule Article III court

decisions and arrogate to itself this Court’s role in

resolving circuit splits. Instead, in each case, this

Court should use its independent judgment to call

balls and strikes, simply interpreting the text of the

law using traditional tools of statutory interpretation.

Cf. id. at 67 (Scalia, J., concurring) (finding no need to

resort to deference). Then, Congress, and Congress

alone, may choose to amend the statutes, subject to

constitutional constraints. But this task of amending

the work of the People’s representatives is not for

federal agencies. La. Pub. Serv. Com v. FCC, 476 U.S.

355, 374–75 (1986). And not for Article III courts.

Henson, 137 S. Ct. at 1726.

CONCLUSION

For these reasons, this Court should reverse the

judgment below.

Respectfully submitted,