Amicus Curiae Brief — Sprint Corporation, nka Sprint LLC, et al., Petitioners v. Federal Communications Commission, et al.

No. 25-1422

IN THE

Supreme Court of the United States

__________

SPRINT CORPORATION, NOW KNOWN AS SPRINT LLC,

AND T-MOBILE USA, INC.,

Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION

AND UNITED STATES OF AMERICA,

Respondents.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the D.C. Circuit

__________

BRIEF OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

AS AMICUS CURIAE IN SUPPORT OF THE

PETITION FOR A WRIT OF CERTIORARI

__________

JORDAN L. VON BOKERN

MARIEL A. BROOKINS

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, D.C. 20062

(202) 463-5337

July 27, 2026

CHRISTOPHER J. WALKER

Counsel of Record

UNIVERSITY OF MICHIGAN

LAW SCHOOL

625 South State Street

Ann Arbor, Michigan 48109

(734) 763-3812

chris.j.walker@umich.edu

Counsel for the Chamber of

Commerce of the United

States of America

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND SUMMARY ......................... 2

ARGUMENT ............................................................... 5

I.

Federal Courts Have Struggled To Discern

When Congress Has Delegated Policymaking

Discretion Under Loper Bright. ....................... 5

II.

The Court Should Clarify How Loper Bright

Cabins Agencies’ Policymaking Discretion. .. 10

III.

A.

Congress Can Specifically Delegate

Authority To Agencies To Define

Statutory Terms. ................................. 11

B.

When Congress Grants General

Rulemaking Authority, Agencies May

Be Authorized To Fill Up Details And

Regulate Subject To The Limits Of

Flexible Terms. .................................... 13

C.

Even When Congress Has Delegated

Policymaking Discretion, Loper Bright

Requires Courts To Fix The Boundaries

Of Statutory Delegations. ................... 15

This Case Presents An Ideal Vehicle For The

Court To Provide Critical Guidance On Loper

Bright Delegation. .......................................... 18

CONCLUSION.......................................................... 23

TABLE OF AUTHORITIES

Page(s)

Cases

3M Co. v. Comm’r, 154 F.4th 574 (8th Cir. 2025)...... 8

Am. Gas Ass’n v. Dep’t of Energy, 157 F.4th 476 (D.C.

Cir. 2025), vacated and remanded, 608 U.S. ___

(2026)........................................................................ 3

Batterton v. Francis, 432 U.S. 416 (1977) 6, 11, 17, 20

Chevron v. NRDC, 467 U.S. 837 (1984) ........... 1, 5, 12

Gundy v. United States, 588 U.S. 128 (2019) .......... 14

Kmart Corp. v. Cartier, Inc., 486 U.S. 281 (1988) ... 17

Lesko v. United States, 161 F.4th 1352 (Fed. Cir.

2025) (en banc) ......................................................... 7

Loper Bright Enterprises v. Raimondo, 603 U.S. 369

(2024)............................................................... passim

Michigan v. EPA, 576 U.S. 743 (2015) ..... 6, 15, 17, 21

Motor Vehicles Mfrs. Ass’n v. State Farm Mutual

Auto. Ins. Co., 463 U.S. 29 (1983) ......................... 18

Relentless v. Dep’t of Com., 2025 WL 1939025 (D.R.I.

July 15, 2025)........................................................... 9

Wayman v. Southard, 23 U.S. 1 (1825) ................ 6, 14

Statutes

16 U.S.C. § 1821 .......................................................... 9

16 U.S.C. § 1853 .................................................... 9, 13

16 U.S.C. § 1853a ........................................................ 9

16 U.S.C. § 1862 .......................................................... 9

iii

26 U.S.C. § 183 ............................................................ 8

26 U.S.C. § 482 ............................................................ 8

26 U.S.C. § 7805 .......................................................... 8

29 U.S.C. § 213 .................................................... 11, 20

42 U.S.C. § 5846 .................................................. 11, 20

42 U.S.C. § 607 (1977) .................................. 11, 17, 20

42 U.S.C. § 7412 ............................................ 15, 17, 18

47 U.S.C. § 154 .......................................................... 20

47 U.S.C. § 503 .......................................... 4, 18, 20, 22

5 U.S.C. § 1104 ............................................................ 7

5 U.S.C. § 5542 ........................................................ 6, 7

5 U.S.C. § 5548 ............................................................ 7

5 U.S.C. § 706 ........................................................ 5, 16

Other Authorities

34 FCC Rcd 12824 (2019) ......................................... 18

Henry P. Monaghan, Marbury and the

Administrative State, 83 Colum. L. Rev. 1 (1983) 16

Jennifer L. Selin & David E. Lewis, Sourcebook of

United States Executive Agencies (Admin. Conf. of

U.S., 2d ed. 2018) ................................................... 12

U.S. Chamber Amicus Br., Coca-Cola Co. v. Comm’r,

No. 24–13470 (11th Cir., filed Mar. 18, 2025) .... 2, 9

U.S. Chamber Amicus Br., FedEx Corp. v. United

States, No. 25–5694 (6th Cir., filed Mar. 29, 2026) 1,

9

U.S. Chamber Amicus Br., Lesko v. United States,

No. 23–1823 (Fed. Cir., filed May 29, 2025) ....... 2, 6

iv

U.S. Chamber Amicus Br., Relentless v. Dep’t of

Com., No. 25–1845 (1st Cir., filed Jan. 23, 2026) .. 2,

10

U.S. Chamber Amicus Br., Schwarz v. Comm’r, No.

12347–20 (Tax Ct., filed July 10, 2025) .................. 8

U.S. Chamber Supp. Amicus Br., 3M Co. v. Comm’r,

No. 23–3772 (8th Cir., filed Oct. 2, 2024) ........... 2, 8

INTEREST OF AMICUS CURIAE 1

The Chamber of Commerce of the United States of

America (“Chamber”) is the world’s largest business

organization. As the nation’s leading advocate for

business, the Chamber represents companies and professional organizations of every size, in every industry

sector, and from every region of the country. An important function of the Chamber is to represent the

interests of its members in matters before Congress,

the Executive Branch, and the courts. To that end, the

Chamber regularly files amicus curiae briefs in cases,

like this one, that raise issues of concern to the nation’s business community.

In Loper Bright Enterprises v. Raimondo, 603 U.S.

369, 412–13 (2024), the Court eliminated Chevron deference and held that courts must exercise independent judgment when reviewing agency statutory interpretations. Given the breadth of its membership and

its long history of challenging regulatory overreach,

the Chamber has a strong interest in how courts review agency statutory interpretations and is uniquely

positioned to speak to the effects of Loper Bright. Indeed, the Chamber has filed numerous amicus briefs

on the impact of Loper Bright in courts across the

country. See, e.g., U.S. Chamber Amicus Br., FedEx

Corp. v. United States, No. 25–5694 (6th Cir., filed

Mar. 29, 2026); U.S. Chamber Amicus Br., Relentless

Pursuant to Supreme Court Rule 37.6, amicus curiae

states that no counsel for any party authored this brief in

whole or in part and no entity or person, aside from amicus

curiae, its members, or its counsel, made any monetary contribution intended to fund the preparation or submission of

this brief. Pursuant to Rule 37.2, counsel for amicus represent

that all parties were provided notice of amicus’s intention to

file this brief at least 10 days before its due date.

1

2

v. Dep’t of Com., No. 25–1845 (1st Cir., filed Jan. 23,

2026); U.S. Chamber Amicus Br., Lesko v. United

States, No. 23–1823 (Fed. Cir., filed May 29, 2025);

U.S. Chamber Amicus Br., Coca-Cola Co. v. Comm’r,

No. 24–13470 (11th Cir., filed Mar. 18, 2025); U.S.

Chamber Supp. Amicus Br., 3M Co. v. Comm’r, No.

23–3772 (8th Cir., filed Oct. 2, 2024).

INTRODUCTION AND SUMMARY

After Loper Bright, courts must exercise independent judgment when it comes to the meaning of statutes that govern federal agencies. That means courts

must use all of the traditional tools of statutory interpretation to arrive at the statute’s “best” reading. 603

U.S. at 400. To be sure, the best reading could be that

Congress authorized the agency to exercise a degree of

policymaking discretion. Loper Bright recognizes two

categories of such delegations: (1) when Congress specifically instructs the agency to define or give meaning

to a statutory term; and (2) when Congress grants the

agency rulemaking authority, and the agency “fills up

the details” of a statutory scheme or regulates subject

to the limits imposed by a flexible statutory term, such

as “appropriate” or “reasonable.” Id. at 394–95 &

nn.5–6.

This case presents an ideal vehicle for the Court to

provide critical guidance on how courts should discern

when Congress has delegated policymaking authority

to federal agencies. For ease of reference, amicus refers to this inquiry as “Loper Bright delegation.”

I. While courts are well positioned to engage in ordinary statutory interpretation under Loper Bright,

they have struggled to implement Loper Bright delegation. Some courts have questioned whether a statute’s general rulemaking provision per se constitutes

3

a policymaking delegation—a position agencies at

times have incorrectly asserted. Other courts—like

the D.C. Circuit here—have abandoned their duty to

exercise independent judgment to interpret statutory

terms, finding instead that statutory language is ambiguous enough to allow the agency to give meaning to

the statute under the guise of “filling up the details.”

II. This Court should reject such “Loper Bright

avoidance.” Am. Gas Ass’n v. Dep’t of Energy, 157

F.4th 476, 506 (D.C. Cir. 2025) (Rao, J., dissenting),

vacated and remanded, 608 U.S. ___ (2026). And it

should clarify the proper bounds of Loper Bright delegation—in at least four ways.

First, the Court should hold that a statute’s general

rulemaking provision—without more—does not constitute a Loper Bright delegation. For an agency to be

authorized to give meaning to a statutory term, the

statute must expressly charge the agency with defining that term. To hold otherwise would reinvent Chevron under a new name.

Second, the Court should underscore that a reviewing court must exercise independent judgment to arrive at the best meaning of the statute. To do so, the

court must use all of the traditional tools of statutory

interpretation. The court should not shirk its duty to

apply all of these tools by claiming the statute is ambiguous enough for the agency to fill up the details. In

overruling Chevron deference, Loper Bright rejects

that approach.

Third, the Court should emphasize that Loper

Bright “fill up the details” delegation is limited to just

that—details. Agencies do not have license to engage

in substantial policymaking under the guise of filling

up the details.

4

Fourth, the Court should reinforce that even when

the statute’s best reading is that Congress has delegated policymaking authority, the reviewing court

must ensure that the agency’s policymaking does not

exceed the bounds of the statutory delegation.

III. This case provides a compelling opportunity for

the Court to clarify the bounds of Loper Bright delegation. Here, the D.C. Circuit avoided answering a pure

legal question—whether petitioners’ failure to immediately terminate a certain program amounted to one

“continuing violation” or many under the statute—by

finding that the question is committed to the FCC’s

discretion and subject only to deferential review.

In imposing more than $80 million in penalties on

T-Mobile and more than $12 million on Sprint, the

FCC circumvented a $1,000,000 statutory cap by defining each petitioner’s single failure to immediately

terminate a program as dozens of separate “continuing violations”—one for each entity that participated

in the program. See 47 U.S.C. § 503(b)(2)(B) (“[T]he

amount assessed for any continuing violation shall not

exceed a total of $1,000,000 for any single act or failure to act . . . .”). The D.C. Circuit deferred to the

FCC’s approach as “reasonable” and observed that the

FCC had “interpreted section 503(b) as giving it ‘discretion’ to determine ‘the number of violations’ represented by a carrier’s conduct.” App. 37a & n.6.

This is a textbook example of Loper Bright avoidance. The D.C. Circuit should have exercised independent judgment to determine the best interpretation of “continuing violation,” which plainly is not the

FCC’s interpretation. The best interpretation, moreover, is not that Congress delegated to the FCC the authority to define the statutory phrase “continuing violation.” Nor does the FCC’s interpretation merely fill

5

up the details of the statutory scheme, or fall within

the bounds of any statutory delegation. The D.C. Circuit essentially reinstituted Chevron deference, which

is particularly egregious when it comes to an agency’s

attempt to circumvent a $1,000,000 statutory cap to

impose millions and millions of dollars in penalties.

ARGUMENT

I.

Federal Courts Have Struggled To Discern

When Congress Has Delegated Policymaking Discretion Under Loper Bright.

For decades, this Court had instructed courts to defer to agencies’ reasonable interpretations of ambiguous statutes they administer. See Chevron v. NRDC,

467 U.S. 837, 842–43 (1984). In recent years, however,

the Court began retreating from that approach, culminating with the elimination of Chevron deference in

Loper Bright.

Judicial review now requires courts to follow “the

APA’s demand that courts exercise independent judgment in construing statutes administered by agencies.” Loper Bright, 603 U.S. at 406; see also 5 U.S.C.

§ 706 (instructing courts to “decide all relevant questions of law”). In other words, courts do what they otherwise would do in an ordinary statutory-interpretation case: “use every tool at their disposal to determine

the best reading of the statute and resolve the ambiguity”—“‘the reading the court would have reached’ if

no agency were involved.” Loper Bright, 603 U.S. at

400 (emphasis added) (quoting Chevron, 467 U.S. at

843 n.11).

When it comes to agency policymaking discretion,

Loper Bright instructs:

6

In a case involving an agency, of course, the

statute’s meaning may well be that the agency

is authorized to exercise a degree of discretion.

Congress has often enacted such statutes. For

example, some statutes “expressly delegate[]”

to an agency the authority to give meaning to a

particular statutory term. Batterton v. Francis,

432 U.S. 416, 425 (1977) (emphasis deleted).

Others empower an agency to prescribe rules to

“fill up the details” of a statutory scheme, Wayman v. Southard, 10 Wheat. 1, 43 (1825), or to

regulate subject to the limits imposed by a term

or phrase that “leaves agencies with flexibility,”

Michigan v. EPA, 576 U.S. 743, 752 (2015),

such as “appropriate” or “reasonable.”

603 U.S. at 394–95 (important footnotes 5 and 6 omitted).

Courts are well equipped to engage in ordinary statutory interpretation to arrive at the best reading of

statutes. They were already doing so long before Loper

Bright in countless cases each year. But Courts have

struggled to apply the paragraph of Loper Bright dealing with policymaking delegation. This difficulty of

identifying and bounding delegations is apparent in

several cases since Loper Bright in which the Chamber has participated as amicus.

In Lesko v. United States, the Federal Circuit en

banc recognized the difficulty of the Loper Bright delegation inquiry and ordered supplemental briefing.

Among other things, the court asked whether a general rulemaking provision authorizes the Office of Personnel Management (OPM) to define “officially ordered or approved” in 5 U.S.C. § 5542(a) to require

that overtime be approved in writing. 161 F.4th 1352,

7

1357 (Fed. Cir. 2025) (en banc) (citing 5 U.S.C.

§§ 1104, 5548).

Ultimately, the Federal Circuit concluded that the

statutory “delegation is a fill-up-the-details delegation

because the overtime statute is silent regarding the

formalities required for overtime to be ‘officially ordered or approved,’ despite the plain meaning of the

phrase requiring such formalities.” Id. at 1360 (citation omitted). The court further held that one of the

general rulemaking provisions at issue “provides

OPM flexibility to regulate as ‘necessary’ for administering the overtime statute.” Id. (quoting 5 U.S.C.

§ 5548(a)). As such, the court upheld an OPM regulation requiring that overtime approvals be in writing to

be “officially ordered or approved.” Id. (quoting 5

U.S.C. § 5542(a)).

Judge Stoll, joined by Judges Reyna, Cunnington,

and Stark, dissented, “see[ing] no such delegation in

the statutory language.” Id. at 1364 (Stoll, J., dissenting). The dissent argued—correctly in the Chamber’s

view—that the general rulemaking provision does not

“give OPM discretion to define or interpret statutory

terms,” id. at 1367, and that “officially ordered or approved” is not a flexible phrase or the sort of language

authorizing the agency to fill up the details. See id. at

1366–69. The dissent concluded that “it is up to Congress, not OPM, to impose a writing requirement.

Congress chose not to limit the statutory phrase ‘officially ordered or approved’ to ‘in writing,’ despite imposing such a limit in another subsection of the same

statute.” Id. at 1370.

The IRS has been front and center in many of these

Loper Bright delegation disputes. In Schwarz v. Commissioner, for example, the Tax Court, like the Federal Circuit in Lesko, recognized the difficulty of the

8

delegation inquiry and ordered supplemental briefing.

Among other things, the court asked whether a general rulemaking provision, 26 U.S.C. § 7805(a), authorizes the IRS to give meaning to particular statutory terms. The case is still pending, but the Chamber

filed an amicus brief arguing that the general rulemaking provision does not provide such definitional

authority and that the statutory phrase at issue—“activity not engaged in for profit,” 26 U.S.C. § 183—does

not trigger Loper Bright delegation. It is the type of

statutory language subject to ordinary statutory interpretation. See U.S. Chamber Amicus Br., Schwarz v.

Comm’r, No. 12347–20, at 21–25 (Tax Ct., filed July

10, 2025), https://perma.cc/Z7YE-4M96.

In 3M Co. v. Commissioner, 154 F.4th 574 (8th Cir.

2025), the Eighth Circuit rejected the IRS’s attempt to

salvage its blocked-income regulation after Loper

Bright rendered unavailable the agency’s past reliance on deference. “When the case started,” the court

explained, “it was all about the blocked-income regulation that it claimed was a reasonable interpretation

of a silent statute.” Id. at 581. “In its post-Loper Bright

supplemental briefing,” however, “the IRS argues that

[26 U.S.C.] § 482 does the same thing by ‘delegat[ing]

discretionary authority to’ make the proposed reallocation.” Id. at 582 (quoting Loper Bright, 603 U.S. at

395). The Eighth Circuit made quick work of this argument, holding that “the statute has another ‘be[tter]

reading” and that even if the statute delegated discretion, “it is still our job to ‘fix[] the boundaries of [that]

delegated authority’ based on the statute’s text, as we

have done today.” Id. (quoting Loper Bright, 603 U.S.

at 395, 400). The Eleventh Circuit is currently considering a similar challenge to the blocked-income regulation. See U.S. Chamber Amicus Br., Coca-Cola Co. v.

9

Comm’r, No. 24–13470 (11th Cir., filed Mar. 18, 2025),

https://perma.cc/97D6-EAVB.

And in FedEx Corp. v. United States, pending in the

Sixth Circuit, the IRS has invoked three general rulemaking provisions in the Tax Code for the authority

to redefine statutory terms involving foreign tax credits. The Chamber has argued that the IRS has no policymaking discretion under the statute and that the

district court correctly concluded that the statute unambiguously precludes the IRS’s interpretation. See

U.S. Chamber Amicus Br., FedEx Corp. v. United

States, No. 25–5694, at 23–32 (6th Cir., filed Mar. 29,

2026), https://perma.cc/982M-SERQ.

Finally, take Loper Bright’s companion case on remand, Relentless v. Department of Commerce. The

Magnuson Stevens Act does not authorize the Department of Commerce to require certain companies to pay

for government-mandated at-sea monitors on their

U.S. fishing vessels. Among other things, Congress expressly authorized the agency to require certain domestic and foreign vessels to pay for such monitors,

but Congress did not do so for the vessels at issue in

Loper Bright and Relentless. Compare 16 U.S.C.

§ 1853(b)(8), with id. §§ 1862(a), 1853a(e)(2), 1821(h).

Nevertheless, the district court on remand held that

a general rulemaking provision granted the agency “a

large degree of discretionary authority” to impose a

cost-shifting mechanism that is found nowhere in the

statutory text. Relentless v. Dep’t of Com., 2025 WL

1939025, at *4 (D.R.I. July 15, 2025). While Loper

Bright recognizes that agencies with general rulemaking authority have some discretion to fill up the details, adopting a cost-shifting regime goes far beyond

that limited delegation. The case is back on appeal before the First Circuit. See U.S. Chamber Amicus Br.,

10

Relentless v. Dep’t of Com., No. 25–1845 (1st Cir., filed

Jan. 23, 2026), https://perma.cc/EKN4-NU6U.

As these cases illustrate, much confusion exists

among the lower courts—and federal agencies—on

how to approach Loper Bright delegation. Courts

question whether a statute’s general rulemaking provision constitutes a Loper Bright delegation to give

meaning to statutory terms—a position agencies at

times have incorrectly asserted. Courts have avoided

their duty to exercise independent judgment to interpret statutory terms, finding instead that statutory

language is ambiguous enough to allow the agency to

give meaning to the statute under the guise of “filling

up the details.” And courts have failed to fix the

boundaries of any such delegations.

II.

The Court Should Clarify How Loper

Bright Cabins Agencies’ Policymaking

Discretion.

Loper Bright rejects Chevron’s holding that statutory ambiguity authorizes agencies to exercise discretion. Statutory ambiguity calls for judicial interpretation, not agency policymaking. Thus, if agencies are to

exercise policymaking discretion, it must be because

the statute’s best reading directs them to do so. Loper

Bright identifies two categories of statutory language—specific and general—that can mean Congress

has delegated a degree of discretion to an agency.

Even when Congress has delegated such authority,

Loper Bright makes clear that courts must enforce

preexisting guardrails on such discretion.

This case presents the Court with a compelling opportunity to clarify the following principles of Loper

Bright delegation.

11

A. Congress Can Specifically Delegate Authority To Agencies To Define Statutory Terms.

Loper Bright recognizes that Congress may vest in

“an agency the authority to give meaning to a particular statutory term.” 603 U.S. at 394. In announcing

this rule, the Court relied on Batterton v. Francis and

cited two statutes that specifically grant an agency

definitional authority. See id. at 395 & n.5 (citing Batterton, 432 U.S. at 425; 29 U.S.C. § 213(a)(15); 42

U.S.C. § 5846(a)(2)).

In Batterton, a pre-Chevron case, the Court assessed

the meaning of “unemployment” in a section of the Social Security Act. See 432 U.S. at 418–19. The Court

explained that “[o]rdinarily, administrative interpretations of statutory terms are given important but not

controlling significance”; they are entitled to “mere

deference or weight.” Id. at 424, 425. The provision in

Batterton, however, did not raise an ordinary statutory-interpretation question. Instead, “Congress in

[42 U.S.C. § 607(a)] expressly delegated to the Secretary the power to prescribe standards for determining

what constitutes ‘unemployment’ for purposes of

AFDC-UF eligibility.” Id. at 425. The provision provided that “[t]he term ‘dependent child’ shall . . . include a needy child . . . who has been deprived of parental support or care by reason of the unemployment

(as determined in accordance with standards prescribed by the Secretary) of his father . . . .” Id. at 418

n.2 (quoting 42 U.S.C. § 607 (1977)) (emphasis added).

Because of this specific delegation, “Congress entrusts

to the Secretary, rather than to the courts, the primary responsibility for interpreting the statutory

term.” Id. at 425.

12

To be sure, Batterton was decided in a different era

of statutory interpretation—nearly half a century ago

and some seven years before Chevron itself. As such,

the Batterton Court’s use of “interpret” was understandably antiquated. When Congress has specifically

charged an agency to define terms in a statute, the

agency’s subsequent definition is not an act of interpretation, but one of policymaking. Loper Bright appreciates this nuance, by reframing the statutory provision in Batterton as an example of Congress’s “‘expressly delegat[ing]’ to an agency the authority to give

meaning to a particular statutory term.” 603 U.S. at

394–95 (quoting Batterton, 423 U.S. at 425) (emphasis

added). Loper Bright invokes two other examples of

specific delegations; these examples similarly concern

instances where Congress has specifically tasked the

agency with defining certain terms in a statute. See

id. at 395 n.5.

It is important to underscore what Loper Bright

does not categorize as a specific delegation to define

statutory terms: provisions that generally authorize

the agency to engage in rulemaking or adjudicative activities. When Congress wants to authorize an agency

to give meaning to statutory language, it must expressly direct the agency to define, or give meaning to,

certain terms. And the agency must follow the procedures Congress requires—such as rulemaking or formal adjudication—to promulgate those definitions.

A contrary holding would effectively gut Loper

Bright’s overruling of Chevron deference. Congress

has given most agencies general rulemaking authority. See Jennifer L. Selin & David E. Lewis, Sourcebook of United States Executive Agencies 118–19 (Admin. Conf. of U.S., 2d ed. 2018). If that were enough to

justify judicial deference to an agency’s reading of a

13

statute, courts would not be permitted to exercise “independent judgment” in most cases. That is not what

this Court intended when it identified the narrow circumstances in which courts should respect the discretion statutes provide to agencies. Moreover, reading a

general rulemaking provision in this way would effectively eliminate Loper Bright’s specific delegation category as well as render superfluous each statutory

provision in which Congress has specifically delegated

definitional authority to an agency.

B. When Congress Grants General Rulemaking Authority, Agencies May Be Authorized

To Fill Up Details And Regulate Subject To

The Limits Of Flexible Terms.

The fact that general rulemaking provisions do not

authorize agencies to define statutory terms does not

mean those provisions are irrelevant after Loper

Bright. They simply serve a different purpose: giving

agencies authority to “fill up the details” of a statutory

scheme and to “regulate subject to the limits imposed

by a term or phrase that ‘leaves agencies with flexibility,’ such as ‘appropriate’ or ‘reasonable.’” Loper

Bright, 603 U.S. at 395 (citations omitted).

1. Fill Up The Details. When Congress enacts a

regulatory scheme, it typically charges an agency with

implementing Congress’s policy decisions. That implementation often requires agencies to fill up the minor

details in the statutory scheme. To vest an agency

with this implementation authority, Congress includes a general rulemaking provision in the statute.

See, e.g., 16 U.S.C. § 1853(b)(14) (providing the agency

at issue in Loper Bright with authority to “prescribe

such other measures, requirements, or conditions and

restrictions as are determined to be necessary and appropriate for the conservation and management of the

14

fishery”). Loper Bright recognizes that when Congress

has granted an agency general rulemaking authority,

a court exercising independent judgment may conclude that the statute’s best interpretation authorizes

the agency to fill up certain implementation details.

See 603 U.S. at 394–96.

With respect to filling up the details, Loper Bright

refers to Wayman v. Southard, 23 U.S. 1 (1825). As

Justice Gorsuch has explained, “[i]n Wayman v.

Southard, this Court upheld a statute that instructed

the federal courts to borrow state-court procedural

rules but allowed them to make certain ‘alterations

and additions.’” Gundy v. United States, 588 U.S. 128,

157 (2019) (Gorsuch, J., dissenting). Since “Congress

had announced the controlling general policy when it

ordered federal courts to follow state procedures,” Justice Gorsuch observed, “the residual authority to make

‘alterations and additions’ did no more than permit

courts to fill up the details.” Id. at 157–58. Or as the

Wayman Court put it, the Constitution draws a line

between “important subjects, which must be entirely

regulated by the legislature itself, from those of less

interest, in which a general provision may be made,

and power given to those who are to act under such

general provisions to fill up the details.” 23 U.S. at 43.

In his Gundy dissent, Justice Gorsuch provided several helpful examples of fill-up-the-details delegations, including for the IRS “to design tax stamps for

margarine packages” and the USDA “to adopt rules

regulating the ‘use and occupancy’ of public forests to

protect them from ‘destruction’ and ‘depredations.’”

588 U.S. at 158 (Gorsuch, J., dissenting) (footnotes

omitted). “Through all these cases,” he explained,

15

“runs the theme that Congress must set forth standards ‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether

Congress’s guidance has been followed.” Id. (footnote

omitted).

2. Flexible Terms. Loper Bright also recognizes

that Congress sometimes uses capacious statutory

terms like “appropriate” or “reasonable” that “‘leave[]

agencies with flexibility.’” 603 U.S. at 395 (quoting

Michigan v. EPA, 576 U.S. at 752). For example, the

Court referred to a provision of the Clean Air Act, construed in Michigan v. EPA, that directs EPA to regulate power plants only “if the Administrator finds such

regulation is appropriate and necessary.” 42 U.S.C.

§ 7412(n)(1)(A). With respect to “appropriate and necessary,” the Court has observed that “[o]ne does not

need to open up a dictionary in order to realize the capaciousness of this phrase.” Michigan v. EPA, 576

U.S. at 752. In other words, the best interpretation of

“appropriate and necessary” is that Congress has delegated a degree of policymaking authority to the

agency in deciding whether to regulate, subject to a

court’s independent judgment of the limits of what

“appropriate and necessary” means.

C. Even When Congress Has Delegated Policymaking Discretion, Loper Bright Requires

Courts To Fix The Boundaries Of Statutory

Delegations.

If a court determines that Congress has delegated

policymaking authority to an agency—whether by directing the agency to define a statutory term, to fill up

16

the details of a statutory scheme, or to regulate subject to limits like “reasonable” or “appropriate”—that

is not the end of the matter.

Loper Bright makes clear that the independent

judgment inquiry extends beyond courts’ determining

the statute’s best meaning. When a court determines

the best interpretation is that Congress has delegated

a degree of discretion to the agency, the court must

then “exercise [] independent judgment in deciding

whether an agency has acted within its statutory authority, as the APA requires.” Loper Bright, 603 U.S.

at 412; see also 5 U.S.C. § 706(2)(C) (directing courts

to set aside any agency action “in excess of statutory

jurisdiction, authority, or limitations, or short of statutory right”).

In articulating this principle, Loper Bright invokes

Henry Monaghan’s assertion that courts must “fix the

boundaries of delegated authority.” 603 U.S. at 395

(quoting Henry P. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 27 (1983))

(cleaned up). As Professor Monaghan explained, this

“judicial role” involves courts “defining the range of

permissible criteria” and “specify[ing] what the statute cannot mean, and some of what it must mean, but

not all that it does mean.” Monaghan, supra, at 27.

Revisiting Loper Bright’s examples of statutory delegations helps underscore that judicial role. With respect to specific delegations for agencies to define statutory terms, agencies’ discretion is not boundless. For

instance, in Batterton, if the agency had defined “unemployment” to include a parent who had a full-time,

full-salaried job, a court would have to exercise independent judgment to declare that the agency’s policymaking exceeded its statutory authority. See Batter-

17

ton, 432 U.S. at 418 n.2 (providing that “[t]he term ‘dependent child’ shall . . . include a needy child . . . who

has been deprived of parental support or care by reason of the unemployment . . . of his father . . . . (quoting 42 U.S.C. § 607 (1977))). The Court said as much

in Batterton: “Of course, the Secretary’s statutory authority to prescribe standards is not unlimited. He

could not, for example, adopt a regulation that bears

no relationship to any recognized concept of unemployment or that would defeat the purpose of the

AFDC-UF program.” Id. at 428.

The same is true with respect to delegations based

on general rulemaking authority. Applying the traditional tools of statutory interpretation, courts must

ensure agencies use their general rulemaking authority to truly fill up minor details, details of implementation, in their statutory scheme and that such interstitial gap-filling is permissible under “the particular

statutory language at issue, as well as the language

and design of the statute as a whole.” Kmart Corp. v.

Cartier, Inc., 486 U.S. 281, 291 (1988).

When it comes to flexible statutory terms, the court

must exercise independent judgment to ensure the

agency “regulate[s] subject to the limits imposed by a

term or phrase.” Loper Bright, 603 U.S. at 395. Loper

Bright’s invocation of Michigan v. EPA is instructive.

See id. In Michigan v. EPA, this Court reviewed a statutory delegation that commanded “EPA to add power

plants to [a regulatory] program if (but only if) the

Agency finds regulation ‘appropriate and necessary.’”

576 U.S. at 752 (quoting 42 U.S.C. § 7412(n)(1)(A)).

The Court concluded that the term “appropriate” is capacious and “leaves agencies with flexibility,” but that

“an agency may not ‘entirely fai[l] to consider an important aspect of the problem’ when deciding whether

18

regulation is appropriate.” Id. (quoting Motor Vehicles

Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463

U.S. 29, 43 (1983)). “Read naturally in the present context,” the Court held, “the phrase ‘appropriate and

necessary’ requires at least some attention to cost.” Id.

It was thus “unreasonable for EPA to read

§ 7412(n)(1)(A) to mean that cost is irrelevant to the

initial decision to regulate power plants.” 576 U.S. at

759.

III.

This Case Presents An Ideal Vehicle For

The Court To Provide Critical Guidance

On Loper Bright Delegation.

This case affords an excellent opportunity for this

Court to clarify how to discern when Congress has delegated policymaking discretion to a federal agency under Loper Bright. The D.C. Circuit failed to follow any

of the guidance articulated in Part II, and, as shown

in Part I, other courts are likely to repeat those errors.

The Communications Act imposes a cap on the total

penalty amount for a continuing violation: “[T]he

amount assessed for any continuing violation shall not

exceed a total of $1,000,000 for any single act or failure to act . . . .” 47 U.S.C. § 503(b)(2)(B). 2 Yet here the

D.C. Circuit allowed the FCC to exceed this statutory

cap to impose more than $80 million in forfeiture penalties on T-Mobile and more than $12 million on

Sprint.

Petitioners argued before the D.C. Circuit that the

forfeiture penalties exceeded that cap as a matter of

law. After all, the forfeiture orders described only one

2 The statute adjusts this $1,000,000 statutory cap for infla-

tion, which was set at $2,048,915 for 2020 when the relevant notices of apparent liability were issued. 34 FCC Rcd 12824, 12828

(2019).

19

“continuing violation”—that each petitioner had allegedly “placed its customers’ location information at continuing risk of unauthorized access through its failure

to terminate its program or impose reasonable safeguards to protect its customers’ location information.”

App. 122a, 125–27a, 235a, 237–39a.

The FCC, by contrast, argued that this failure to act

consisted of dozens of separate “continuing violations”

under § 503(b)(2)(B)—one for every service provider

that was allowed to continue offering services to customers under the program after the petitioner failed

to terminate the program.

Under Loper Bright, the D.C. Circuit should have

exercised independent judgment to arrive at the statute’s “best” reading. This involves “us[ing] every tool

at [the court’s] disposal to determine the best reading

of the statute and resolve the ambiguity.” 603 U.S. at

400. The court failed to do so. Instead, it deferred to

the FCC’s interpretation of the phrase “continuing violation.” The D.C. Circuit concluded that the FCC had

“interpreted section 503(b) as giving it ‘discretion’ to

determine ‘the number of violations’ represented by a

carrier’s conduct,” App. 37a n.6, and that “it was reasonable for the Commission to conclude that each

third-party relationship” with a petitioner “formed the

basis of a distinct violation.” App. 38a.

The D.C. Circuit flunked the Loper Bright delegation inquiry. Critically, this case does not implicate

any of three exceptions Loper Bright identifies for policymaking discretion. The D.C. Circuit, moreover,

failed to fix the boundaries of the purported agency

discretion, as Loper Bright requires.

1. Specific Definitional Authority. In enacting

47 U.S.C. § 503(b)(2)(B), Congress did not “expressly

delegate to [the FCC] the authority to give meaning to

20

[the] particular statutory” phrase “continuing violation.” Loper Bright, 603 U.S. at 394–95 (cleaned up).

The statutory text reads in relevant part: “[T]he

amount assessed for any continuing violation shall not

exceed a total of $1,000,000 for any single act or failure to act . . . .” 47 U.S.C. § 503(b)(2)(B).

As detailed in Part II.A, for this to be a specific delegation to give meaning to a statutory term, Congress

would have needed to include a command that the

phrase “continuing violation” shall be defined by the

FCC. See Loper Bright, 603 U.S. at 394–95 & n.5; see

also Batterton, 432 U.S. at 418 n.2 (“as determined in

accordance with standards prescribed by the Secretary” (quoting 42 U.S.C. § 607(a) (1977))); 29 U.S.C.

§ 213(a)(15) (“as such terms are defined and delimited

by regulations of the Secretary”); 42 U.S.C.

§ 5846(a)(2) (“as defined by regulations which the

Commission shall promulgate”). No such command is

found in § 503(b).

Nor has Congress elsewhere specifically authorized

the FCC to give meaning to the phrase “continuing violation.” To be sure, Congress has provided that the

FCC “may perform any and all acts, make such rules

and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the

execution of its functions.” 47 U.S.C. § 154(i). Such a

general rulemaking provision is necessary for an

agency to have policymaking discretion to fill up the

details in a statutory scheme or to regulate subject to

the limits of a flexible term. But Loper Bright makes

clear that Congress must specifically charge the

agency to define the statutory phrase “continuing violation” before a court may conclude the agency has

this kind of authority. Congress has not done so here.

21

2. Fill Up the Details. While the FCC has authority under the statute’s general rulemaking provision

to fill up certain details in the regulatory scheme, defining the statutory phrase “continuing violation” does

not fall within the Loper Bright “fill up the details”

category. As detailed in Part II.B.1, “fill up the details”

delegation involves interstitial gap filling. It does not

concern fixing the meaning of particular terms in a

statute. Congress knows how to specifically delegate

such definitional authority to an agency. And Loper

Bright makes clear that Congress has to do so explicitly in order to assign that task to the agency rather

than a reviewing court.

This remains true even if the phrase is susceptible

to more than one meaning. If giving meaning to ambiguous statutory terms amounted to “filling up the

details,” it would reinvent Chevron deference under a

different name. That would conflict with the holding

in Loper Bright that “Chevron is overruled” and that

“courts need not and under the APA may not defer to

an agency interpretation of the law simply because a

statute is ambiguous.” 603 U.S. 412–13.

3. Flexible Terms. The phrase “continuing violation” is not the type of capacious phrase that Loper

Bright recognizes as “leav[ing] agencies with flexibility.” 603 U.S. at 395 (quoting Michigan v. EPA, 576

U.S. at 752). This is not an open-ended term like “appropriate” or “reasonable.” See id. at 395 & n.6; cf.

Michigan v. EPA, 576 U.S. at 752. If flexibility were

triggered whenever a statutory term were susceptible

to multiple meanings—i.e., when there is an ambiguity—that too would resurrect Chevron deference.

4. Boundaries Fixing. Even if it were correct that

the statute’s best reading delegated some degree of

discretion to the FCC, the D.C. Circuit did not even

22

attempt to “police” or “fix the boundaries of the delegated authority.” Loper Bright, 603 U.S. at 395, 405

(cleaned up). And the FCC exceeded any such boundaries. As Commissioner Simington observed in dissent, “It is simply not plausible that Congress intended that the Commission may arrive at forfeitures

of any size simply by disaggregating an ‘act’ into its

individual constituent parts” and “counting the members of whatever class of objects may be related to the

alleged violation.” App. 169a (Simington, dissenting).

But there is no need to fix such boundaries as Congress did not delegate discretion to the FCC. Instead,

the phrase “continuing violation” in § 503(b)(2)(B) is

the type of language subject to ordinary statutory interpretation. Courts are fully equipped to exercise independent judgment to arrive at the phrase’s best

meaning, after exhausting all of the traditional tools

of statutory interpretation. That is what Loper Bright

requires. And that best reading is not that the FCC

can treat “a single, systemic failure to follow the Commission’s rules” as “however many separate and continuing violations the Commission chooses to find on

the basis of the whole-cloth creation of a novel legal

ontology.” App. 168a (Simington, dissenting).

The D.C. Circuit has provided this Court with an

ideal vehicle to provide critical guidance on Loper

Bright delegation. The FCC proclaimed it had authority to impose more than $80 million in penalties despite a $1,000,000 statutory cap. The D.C. Circuit

agreed that the FCC had such discretion and that the

FCC reasonably exercised it. In so doing, the D.C. Circuit misapplied Loper Bright and reinstated Chevron

deference under the guise of Loper Bright delegation.

23

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

CHRISTOPHER J. WALKER

Counsel of Record

UNIVERSITY OF MICHIGAN LAW SCHOOL

625 South State Street

Ann Arbor, Michigan 48109

(734) 763-3812

chris.j.walker@umich.edu

* Institutional affiliation is provided for

identification purposes only. Professor

Walker is also Of Counsel and Consultant

at the U.S. Chamber Litigation Center.

JORDAN L. VON BOKERN

MARIEL A. BROOKINS

U.S. CHAMBER LITIGATION CENTER

1615 H Street, NW

Washington, D.C. 20062

(202) 463-5337

Counsel for the Chamber of Commerce

of the United States of America

July 27, 2026