CTIA, Berkeley Spar on Deference Case Law in RF Case
CTIA disagreed with Berkeley, California, on legal standards for deferring to an FCC statement of interest (SOI) and for preempting localities, in filings Thursday at U.S. District Court in San Francisco. Judge Edward Chen asked at oral argument last week…
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for legal citations on those subjects in the case about a Berkeley RF disclosure law (see 2007240063). CTIA said (in Pacer) the court should apply Auer deference to the FCC statement “because it sets forth the agency’s interpretation of its own regulations” including the December 2019 RF safety order. Auer says that interpretation is controlling unless plainly erroneous or inconsistent with the rule. Berkeley said (in Pacer) the SOI “is owed no more than Skidmore deference” because the statement “does not interpret a regulation -- that is a substantive legislative rule, the most basic predicate of Auer deference.” To overcome courts’ presumption against preemption of local police powers, the court “must find that the Agency has acted with ‘clear and manifest purpose’ to preempt state and local law,” said Berkeley. CTIA argued for a less strict standard.