by Jonathan H. Adler
Free State Foundation
December 05, 2012
Whether local land-use and zoning regulations unduly inhibit the placement of mobile service facilities may well be a question about which the FCC has substantial expertise. Yet whether Congress delegated the FCC authority to address this question is not. Questions of agency jurisdiction are legally and analytically antecedent to the question of whether a given agency interpretation is one to which Chevron deference is due. In City of Arlington the Supreme Court has the opportunity to clarify this point. There are good reasons for it to make clear that agencies should only receive Chevron deference when they are exercising that authority Congress has delegated, and they should not receive deference when facing the question of whether the agency has authority at all.

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