Throughout the post-New Deal expansion of the administrative state, conservatives have warned against the dangers of giving too much power to unelected bureaucrats. Those concerns have been borne out in recent years as federal agencies have promulgated increasingly sweeping rules addressing energy, climate, and healthcare based on vague authority from Congress.
In a series of recent decisions, the Supreme Court has acted to restore the balance between Congress, federal agencies, and the courts. It overruled the so-called “Chevron” doctrine, which afforded deference to agency interpretations of the law, and it has also elaborated on the “major questions doctrine,” which prevents agency assertions of authority over matters of significant public concern absent clear congressional direction. In such cases, the Court has reaffirmed a basic structural principle of our system: agencies may exercise only the power Congress actually gave them. That puts Congress back in charge of policymaking and reclaims for the courts their traditional responsibility to “say what the law is.”
Notwithstanding these recent decisions by the Supreme Court, the FCC is now contemplating whether to increase, eliminate, or waive a current ownership cap limiting industry consolidation, despite Congress’s clear direction in a statute that the FCC lacks discretion to do so.
At issue is the “national audience reach limitation” set by Congress in 2004 legislation, which states that no single entity may own broadcast stations reaching more than 39% of the U.S. audience. In both a new rulemaking and in the FCC’s review of a merger between two of the largest TV station groups, broadcasters have asked the FCC to raise, eliminate, or waive the 39% cap.
That request flies in the face of the 2004 statute Congress enacted. As we explain in a new legal analysis published today, the FCC lacks authority to change or eliminate this statutory 39% cap set by Congress more than 20 years ago.
Station owners say the FCC has authority to change the cap under the agency’s general power to regulate the airwaves in the public interest, and they identify cases where the FCC did so in the 1990s and early 2000s.
But those examples all suffer the same fatal flaw: they occurred before the 2004 law in which Congress fixed the cap at 39% by statute and specifically removed what it named “the 39 percent national audience reach limitation” from the FCC’s regular “quadrennial” review of its rules and regulations. Congress went even further to make its intent clear by precluding the FCC from using its forbearance authority to waive the 39% cap and by giving broadcasters that exceeded or that grew beyond the cap two years to divest any stations necessary to meet this statutory limit. In short, Congress itself set the 39% cap, and it foreclosed the FCC from revising or waiving that cap. If Congress had instead sought to give the FCC authority to change the 39% cap, it certainly knew how to do so. For example, in a neighboring statutory provision, Congress expressly conferred upon the FCC the discretion to revise local-ownership rules, allowing the FCC to “determine whether to retain, modify, or eliminate” the local-ownership limits within a single television market. But Congress did not use that language when addressing the national audience reach limitation. Congress’s inclusion of discretion-conferring language in the local-ownership provision signifies that its omission of such language regarding the 39% cap was deliberate.
Nor can the FCC rely on the Communications Act’s “public interest” language or its general authority over broadcasting to override such a precise statutory limit—especially one Congress singled out for special treatment. What is more, consistent with the Supreme Court’s “major-questions doctrine,” courts are likely to look askance at the FCC’s assertion of authority to raise or eliminate the 39% cap—an action with the potential to cause significant market disruption—given the absence of a clear statement of authority from Congress.
We recognize that the policy issues surrounding the 39% cap are significant and complex. TV station owners claim the cap must be lifted or removed because they compete against sizeable Big Tech nationwide streaming platforms, and they pledge that bigger scale will allow them to strengthen local news. Advocates for preserving the cap point out that large station groups use their leverage to demand costly “retransmission fees” that drive up consumer TV bills and predict that mergers exceeding the cap will deepen the affordability crisis dominating our politics today. Even President Trump has weighed in, stating his view that eliminating the cap would ultimately benefit the left and harm conservative voices.
We take no position on those earnest policy debates. Rather, our legal analysis focuses solely on the statute’s meaning. We conclude that, under the best reading of the statute, the FCC lacks the authority to raise, eliminate, or waive the cap. And if the FCC were to do so only for certain broadcasters but not others, that decision to treat certain speakers differently from others would likely be challenged under the Administrative Procedure Act and implicate significant First Amendment concerns.
The controversy this debate has generated only underscores the wisdom of the Court’s recent jurisprudence. Under our constitutional structure, this kind of weighty, complex, and ultimately political judgment is for Congress to make. That is the very heart of the separation-of-powers framework the Court has worked to restore: Congress legislates, agencies administer, and courts ensure each stays in its lane.
The FCC lacks authority to change the 39% national audience reach cap, and any attempt to do so would almost certainly be overturned in court, including by the Supreme Court. Respect for the rule of law—and for Congress’s prerogatives—requires no less.
Kannon Shanmugam is chair of the Supreme Court & Appellate Litigation Practice at Paul, Weiss, Rifkind, Wharton & Garrison LLP. He served as Assistant to the Solicitor General of the United States from 2004 to 2008 and as a law clerk to Supreme Court Justice Antonin Scalia. William Marks is a partner in the Supreme Court & Appellate Litigation Practice at Paul, Weiss, Rifkind, Wharton & Garrison LLP.
