The Volokh Conspiracy

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Volokh Conspiracy

What does Congress mean by 'methodology'?


In my view, spectrum policy is the most important aspect of Internet/communications policy. Increasing the supply of channels of communication is crucial to competition and growth, and the best path to increasing supply is increasing the spectrum available for broadband services. That has been the motivating force behind spectrum policy for a while, and it led to the incentive auctions authorized by Congress and tentatively scheduled for next year. The "tentatively" was in part because of a lawsuit challenging aspects of the FCC's incentive auctions rules. (Disclosure: I worked on incentive auctions when I was at the Commission, but I didn't work on this litigation.) Anyway, the D.C. Circuit just issued an opinion flatly rejecting all the challenges to the incentive auction rules. Given the importance of spectrum policy, the ruling is a big deal.

You can stop reading here, unless you care about statutory interpretation. But if you do, this case nicely illustrates the usefulness of taking into account the plausibility of constructions of congressional intent.

The opinion itself is pretty straightforward, relying heavily on Chevron to find the FCC's interpretations reasonable. I want to highlight here one question of statutory interpretation that would have avoided Chevron deference. If a court finds that Congress "has directly spoken to the precise question at issue," that ends the matter and the court doesn't defer to the agency. The petitioners argued that Congress spoke with such clarity when it provided that the Commission "make all reasonable efforts to preserve, as of February 22, 2012, the coverage area and population served of each broadcast television licensee, as determined using the methodology described in OET Bulletin 69." The argument boiled down to "methodology" (pun intended). The FCC said that "the methodology described in OET Bulletin 69" gave them leeway, and the court agreed. The petitioners disagreed. In the court's words,

Petitioners contend that "the methodology described in OET Bulletin 69" is a regulatory term of art through which Congress unambiguously incorporated the precise software program and data inputs the Commission would have used to calculate a broadcast station's coverage as of February 22, 2012. They maintain, for instance, that Congress unequivocally barred the FCC from using 2010 Census data when assessing a broadcaster's population served. In other words, Congress, in petitioners' understanding, compelled the Commission to calculate a broadcaster's population coverage based on obsolete figures from the 2000 Census rather than on up-to-date figures from 2010.

The court replied tartly that "Nothing in the statutory text requires us to attribute that counterintuitive intention to Congress." Similarly:

Petitioners' argument asserts not only that Congress inexplicably foreclosed the use of up-to-date Census figures to assess a broadcaster's population served, but also that Congress, for some reason, precluded the development of improved software tailored to implement OET-69 for purposes of the Spectrum Act. Again, nothing in the statute or in OET-69 itself compels that conclusion.

The argument, in other words, turned on the specificity the judges attribute to Congress in using the word "methodology." The court rejected the petitioners' highly specific interpretation of "methodology" in part based on dictionary definitions of "methodology," but also (as the excerpts above highlight) in part because it would attribute a strange intent to Congress. Congress could have had such an intent (maybe they really liked the 2000 Census figures), but the court wasn't willing to attribute such an intent absent evidence of it. That seems right to me. It's part of the reason why the challengers in King v. Burwell have argued that their interpretation of "established by the State" was what Congress intended (see coblogger Jonathan Adler's amicus brief) and (in the words of King's lawyers) "advances reasonable purposes."