[J-81-2019] [MO: Mundy, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
CROWN CASTLE NG EAST LLC AND : No. 2 MAP 2019
PENNSYLVANIA-CLE LLC, :
: Appeal from the Order of the
Appellees : Commonwealth Court dated June 7,
: 2018 at No. 697 CD 2017 Reversing
: the Order of the Pennsylvania Public
v. : Utility Commission dated May 4,
: 2017 at No. M-2016-2517831.
:
PENNSYLVANIA PUBLIC UTILITY : ARGUED: October 15, 2019
COMMISSION, :
:
Appellant :
CONCURRING OPINION
JUSTICE WECHT DECIDED: July 21, 2020
The provisions of the Pennsylvania Utility Code (“the Code”)1 at issue in this case
are unambiguous, and they compel affirmance of the Commonwealth Court’s order.
Because the Code is clear, the Pennsylvania Utility Commission’s (“PUC” or “the
Commission”) proposed approach to unpacking the Code is entitled to no deference
whatsoever. For these reasons, I join the Majority Opinion. I write separately because
this case highlights the perilous instability of the scaffolding that has been thrown together
over time around the concept of “administrative deference,” a notion or totem as to which
I have deep and broad misgivings.
1 See Act of July 1, 1978, Pub. L. 598, No. 116, as amended, 66 Pa.C.S. §§ 101, et
seq.
In matters of agency deference, this Court historically has chosen (by volition
rather than by command) to take its cues from federal law. See Wirth v. Commonwealth,
95 A.3d 822, 841 n.18 (Pa. 2014); Nw. Youth Servs., Inc. v. Commonwealth, Dep’t of
Pub. Welfare, 66 A.3d 301, 311 (Pa. 2013) (“Pennsylvania courts’ treatment of deference
to administrative agency rules has followed the United States Supreme Court’s
lead . . . .”). Generally speaking, federal courts employ a tripartite scheme in evaluating
agency interpretations.
The most deferential standard applies to circumstances where an agency, acting
pursuant to an express or implied delegation of rule-making authority, resolves a statutory
ambiguity by some variety of deliberative process, typically (but not necessarily) involving
rule-making attended by some degree of formality, such as the invitation and
consideration of public notice and comment. See Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837 (1984); Eagle Envtl. II, LP v. Commonwealth, Dep’t of Envtl.
Prot., 884 A.2d 867, 878 (Pa. 2005) (quoting Anela v. Pa. Hous. Fin. Agency, 690 A.2d
1157, 1159 (Pa. 1997)) (“[A]n agency’s interpretation of its enabling statute is entitled to
great weight and will not be overturned unless it is clearly erroneous,” but the legislative
delegation of the interpretive rulemaking power must be “clear and unmistakable”).2 The
Supreme Court of the United States has observed that “a very good indicator of delegation
meriting Chevron treatment [lies] in express congressional authorizations to engage in
the process of rulemaking or adjudication that produces regulations or rulings for which
deference is claimed.” United States v. Mead Corp., 533 U.S. 218, 229 (2001).
2 Cf. NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 257
(1995) (applying Chevron deference to the “deliberative” unilateral position espoused by
the Comptroller of the Currency).
[J-81-2019] [MO: Mundy, J.] - 2
As the Majority observes, this Court never has expressly adopted Chevron. See
Maj. Op. at 22 n.11. Nonetheless, this Court has treated administrative deference
concordantly with federal law, and federal law is principally informed by Chevron and its
progeny. For the reasons I set forth below, I question whether and to what extent this
Court should rely upon federal law for purposes of assessing whether, when, and to what
extent Pennsylvania courts should defer to Pennsylvania agency interpretations of their
Pennsylvania enabling statutes.
Pursuant to what sometimes is referred to as “the Chevron two-step,”3 federal
courts considering agency interpretations of a statute first must ask whether the statute
is clear. If so, then no deference need be afforded to the agency’s position. However,
when the statute is ambiguous and Congress has signaled its intention to delegate rule-
making authority to the agency, the agency’s interpretations are afforded “controlling
weight unless they are arbitrary, capricious, or manifestly contrary to the statute.”
Chevron, 467 U.S. at 843-44.4 Notably, Chevron deference “is premised on the theory
that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency
to fill in the statutory gaps.” King v. Burwell, 135 S.Ct. 2480, 2488 (2015) (quoting FDA
v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)5).
3 See Bradley George Hubbard, Comment, Deference to Agency Statutory
Interpretations First Advanced in Litigation? The Chevron Two-Step and the Skidmore
Shuffle, 80 U. CHI. L. REV. 447 (Winter 2013).
4 Accord Eagle Envtl., 884 A.2d at 878.
5 This robust federal proposition stands in marked tension with Eagle Environmental,
in which this Court emphasized the importance of a “clear and unmistakable” delegation
of rule-making authority, and observed that “a doubtful power does not exist.” Eagle
Envtl., 884 A.2d at 878 (quoting Gilligan v. Pa. Horse Racing Comm’n, 422 A.2d 487, 490
(Pa. 1980)).
[J-81-2019] [MO: Mundy, J.] - 3
Similarly deferential is the federal standard applied under the United States
Supreme Court’s decision in Auer v. Robbins, 519 U.S. 452 (1997). Auer calls for judicial
deference to an agency interpretation of its own ambiguous regulations. As with Chevron,
under Auer, federal courts are directed to defer to agencies’ interpretations of their own
regulations when those interpretations are not “plainly erroneous or inconsistent with the
regulation.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989)
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)); see Auer, 519
U.S. at 461; see also Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 617 (2013) (Scalia, J.,
concurring and dissenting) (“Auer deference is Chevron deference applied to regulations
rather than statutes.”). The Supreme Court has reasoned that “applying an agency’s
regulation to complex or changing circumstances calls upon the agency’s unique
expertise and policymaking prerogatives,” which Congress delegated to it by vesting the
agency with rule-making power. Martin v. Occupational Safety & Health Review Comm’n,
499 U.S. 144, 151 (1991).
In recent years, the Supreme Court’s enthusiasm for agency deference, and in
particular Auer deference, has appeared to wane:
Although Auer ordinarily calls for deference to an agency’s interpretation of
its own ambiguous regulation, even when that interpretation is advanced in
a legal brief, see Chase Bank USA, N.A. v. McCoy, 562 U.S. 195, 208
(2011); Auer, 519 U.S. at 461-62, this general rule does not apply in all
cases. Deference is undoubtedly inappropriate, for example, when the
agency’s interpretation is “‘plainly erroneous or inconsistent with the
regulation.’” Auer, 519 U.S. at 461 (quoting Robertson, 490 U.S. at 359).
And deference is likewise unwarranted when there is reason to suspect that
the agency’s interpretation “does not reflect the agency’s fair and
considered judgment on the matter in question.” Id. at 462; see also, e.g.,
Chase Bank, 562 U.S. at 209. This might occur when the agency’s
interpretation conflicts with a prior interpretation, see, e.g., Thomas
Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994), or when it appears
that the interpretation is nothing more than a “convenient litigating position,”
[J-81-2019] [MO: Mundy, J.] - 4
Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213 (1988), or a “‘post
hoc rationalizatio[n]’ advanced by an agency seeking to defend past agency
action against attack,” Auer, 519 U.S. at 462 (quoting Bowen, 488 U.S. at
212; alteration in original).
Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 (2012) (citations modified).
In Talk America, Inc. v. Mich. Bell Tel. Co., 564 U.S. 50, 68 (2011), Justice Scalia criticized
Auer, noting that “[i]t seems contrary to fundamental principles of separation of powers to
permit the person who promulgates a law to interpret it as well.” Id. at 68 (Scalia, J.,
concurring)(quoting CHARLES DE SECONDAT, BARON DE MONTESQUIEU, SPIRIT OF THE LAWS
bk. XI, ch. 6, 151-52 (Oskar Piest ed., Thomas Nugent transl. 1949)6) (“When the
legislative and executive powers are united in the same person, or in the same body of
magistrates, there can be no liberty . . . .”).7
That being said, the rumors of Auer’s demise have proved exaggerated or at least
premature. Just last year the High Court reaffirmed Auer’s continuing validity, albeit in a
fractured and qualified ruling. See Kisor v. Wilkie, 139 S.Ct. 2400 (2019). The factual
6 The same translation of The Spirit of the Laws is available in the public domain at
https://ia802701.us.archive.org/22/items/spiritoflaws01montuoft/spiritoflaws01montuoft_
bw.pdf.
7 See also Kisor v. Wilkie, 139 S.Ct. 2400, 2438 (2019) (Gorsuch, J., concurring in
the judgment) (quoting 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 at 75 (Max
Farrand ed., Yale Univ. Press 1911) (noting that the founders believed that “‘no maxim
was better established’ than ‘that the power of making ought to be kept distinct from that
of expounding, the laws’”)).
Justice Thomas once related that Justice Scalia later described Auer to him as
”one of the worst opinions in the history of this country,” whereupon, the story delightfully
goes, Justice Thomas reminded Justice Scalia that Auer was authored by none other
than Justice Scalia. See THE HERITAGE FOUNDATION, Joseph Story Distinguished Lecture:
A Conversation with Clarence Thomas (Oct. 26, 2016),
https://www.heritage.org/sites/default/files/2017-11/HL1282.pdf.
[J-81-2019] [MO: Mundy, J.] - 5
details of that case are not essential to this discussion. What is notable is that a bare
majority of the Court—over the objection of Justice Gorsuch, joined to varying extents by
Justices Thomas, Kavanaugh, and Alito—rejected the invitation to overrule Auer and the
Court’s earlier decision in Bowles, 325 U.S. 410. The lead opinion8 declared that “Auer
deference retains an important role in construing agency regulations. . .”, Kisor, 139 S.Ct.
at 2408, and ventured that Congress, in delegating rule-making authority to an agency,
“is attuned to the comparative advantages of agencies over courts in making” certain
“policy judgments,” especially where doing so requires “‘unique expertise’ . . . relevant to
applying a regulation ‘to complex or changing circumstances.’” Id. at 2413 (plurality)
(quoting Martin, 499 U.S. at 151).
The Kisor Court was at pains to underscore Auer’s limits at some length,
professing that Auer deference “is potent in its place, but cabined in its scope.” Id.
at 2408. For example, “when a court concludes that an interpretation does not reflect an
agency’s authoritative, expertise-based, fair or considered judgment,” courts should only
defer to an agency’s reading “to the extent it has the power to persuade.” Id. at 2414
(cleaned up). In this regard, the Kisor Court observed that even where an ambiguous
regulation triggers Auer deference, “the agency’s reading must fall within the bounds of
reasonable interpretation. And let there be no mistake: That is a requirement an agency
can fail.” Id. at 2416 (cleaned up).
8 Chief Justice Roberts declined to join subsections II-A and III-A of Justice Kagan’s
opinion, the former of which reviewed Auer’s salutary functions. See Kisor, 139 S.Ct. at
2410-14 (plurality). However, he provided the dispositive fifth vote for subsection II-B,
related below, in which Justice Kagan, at considerable length, delineated the limits upon
Auer deference. Id. at 2414-18. Unless otherwise noted, my citations to Kisor refer to
those portions of Justice Kagan’s Opinion that gained majority support.
[J-81-2019] [MO: Mundy, J.] - 6
The Kisor caveats continued:
[T]he regulatory interpretation must be one actually made by the agency. In
other words, it must be the agency’s authoritative or official position, rather
than any mere ad hoc statement not reflecting the agency’s views. That
constraint follows from the logic of Auer deference—because Congress has
delegated rulemaking power, and all that typically goes with it, to the agency
alone. Of course, the requirement of authoritative action must recognize a
reality of bureaucratic life: Not everything the agency does comes from, or
is even in the name of, the Secretary or his chief advisers. . . . But there
are limits. The interpretation must at the least emanate from those actors,
using those vehicles, understood to make authoritative policy in the relevant
context.
****
Finally, an agency’s reading of a rule must reflect fair and considered
judgment to receive Auer deference. That means . . . that a court should
decline to defer to a merely convenient litigating position or post hoc
rationalization advanced to defend past agency action against attack. And
a court may not defer to a new interpretation, whether or not introduced in
litigation, that creates unfair surprise to regulated parties. That disruption
of expectations may occur when an agency substitutes one view of a rule
for another. We have therefore only rarely given Auer deference to an
agency construction conflicting with a prior one. . . .
The upshot of all this goes something as follows. When it applies, Auer
deference gives an agency significant leeway to say what its own rules
mean. In so doing, the doctrine enables the agency to fill out the regulatory
scheme Congress has placed under its supervision. But that phrase “when
it applies” is important—because it often doesn’t. As described above, this
Court has cabined Auer’s scope in varied and critical ways—and in exactly
that measure, has maintained a strong judicial role in interpreting rules.
What emerges is a deference doctrine not quite so tame as some might
hope, but not nearly so menacing as they might fear.
Kisor, 139 S.Ct. at 2416-18 (cleaned up).
These analytical half-measures failed to satisfy Justice Gorsuch. In his persuasive
concurring opinion in Kisor, Justice Gorsuch, echoing Justice Scalia’s previously stated
objection to Auer deference, laid bare the infirmities in the Majority’s opinion, which he
accused of offering the doctrine “more of a stay of execution than a pardon.” Id. at 2425
(Gorsuch, J., concurring). He accused the majority of “impos[ing] so many new and
[J-81-2019] [MO: Mundy, J.] - 7
nebulous qualifications and limitations” as to render the doctrine “maimed and
enfeebled—in truth, zombified.” Id. After a lengthy survey and rejection of the arguments
and authorities relied upon by the Majority, Justice Gorsuch observed:
The majority candidly admits that it finds it impossible to “reduce” this new
[Auer] inquiry “to any exhaustive test,” so it settles for laying out some
markers. What are the markers? We are told that courts should often—but
not always—withhold deference from an interpretation offered by mid-level
agency staff; often—but not always—withhold deference from a
nontechnical, “prosaic-seeming” interpretation; often—but not always—
withhold deference from an interpretation advanced for the first time in an
amicus brief; and often—but not always—withhold deference from an
interpretation that conflicts with an earlier one.
Id. at 2443 (citations omitted). Justice Gorsuch rejected this nebulous (“zombified”)
approach, arguing that “judges owe the people who come before them nothing less than
a fair contest, where every party has an equal chance to persuade the court of its
interpretation of the law’s demands.” Id. at 2425.
Kisor’s “power to persuade” terminology originally appeared in Skidmore v. Swift
& Co., 323 U.S. 134, 140 (1944). However, Kisor’s invocation of this language drew from
Christopher, an Auer deference case, which itself quoted Justice Scalia’s dissenting
opinion in Mead Corp., a Chevron deference case. Mead Corp., 533 U.S. at 250-52
(Scalia, J., dissenting). The gnomic but oft-quoted passage in Skidmore from which the
phrase is drawn explains in full: “The weight [granted an administrative] judgment in a
particular case will depend upon the thoroughness evident in its consideration, the validity
of its reasoning, its consistency with earlier and later pronouncements, and all those
factors which give it power to persuade, if lacking power to control.” Skidmore, 323 U.S.
at 140. Mead Corp. also cited Skidmore for the proposition that “[t]he fair measure of
deference to an agency administering its own statute has been understood to vary with
circumstances, and courts have looked to the degree of the agency’s care, its
[J-81-2019] [MO: Mundy, J.] - 8
consistency, formality, and relative expertness, and to the persuasiveness of the agency’s
position.” Mead Corp., 533 U.S. at 228 (citing Skidmore, 323 U.S. at 139-140).
But even as it has been cited in both the Chevron and Auer contexts, Skidmore
generally has been understood as a discrete, third form of administrative deference that
applies when what are at issue are informal policies or practices that involve the agency’s
interpretations of its statutorily-conferred duties. In Skidmore, a wartime case,
considering whether to privilege the interpretation of an administrator of the Fair Labor
Standards Act regarding the triggering event for an employee’s entitlement to overtime
compensation, the Court noted that Congress created the “office of Administrator,” who
had “considerable experience in the problems of ascertaining working time in
employments involving periods of inactivity and a knowledge of the customs prevailing in
reference to their solution.” Skidmore, 323 U.S. at 137-38. Consequently, while
Congress effectively reposed the final determination as to what constituted working time
in the courts, the Court nonetheless prescribed deference: “We consider that the rulings,
interpretations and opinions of the Administrator under this Act, while not controlling . . .,
do constitute a body of experience and informed judgment to which courts and litigants
may properly resort for guidance.” Id. at 140.
As noted above, this Court generally has looked to federal law in matters of agency
deference. See Wirth, 95 A.3d at 841 n.18; Nw. Youth Servs., 66 A.3d at 311. But in
Northwestern Youth Services, we opined that the Christopher Court “modified [the] course
of the federal jurisprudence” when it opted to apply Skidmore rather than Auer deference
to an agency’s interpretation of its own regulation. Nw. Youth Servs., 66 A.3d at 312; see
[J-81-2019] [MO: Mundy, J.] - 9
Christopher, 567 U.S. at 158-59.9 Over time, this Court has developed a simplified
dichotomy that distinguishes simply between “substantive” and “interpretative” rule-
making. To the former, we have applied something resembling Chevron deference. For
the latter, we have employed an approach akin to Skidmore’s. See generally Nw. Youth
Servs., 66 A.3d at 310-12.
The instant case illustrates well the fundamental lack of clarity in discerning the
point at which Chevron gives way to Auer gives way to Skidmore, however tidy the
nominal distinctions might appear to be. That same lack of clarity appears in our case
law. At issue here is a mix of statutory interpretation and informal rulemaking of a sort—
interpretive rule-making in this Court’s parlance. We begin with the Commission’s wholly
tacit position on a question of how to interpret the Code, which we can glean only from
the Commission’s ten-year pattern of granting certificates of public convenience (“CPC”).
To wit, are providers of Distributed Antennae Systems (“DAS”) “public utilities” entitled to
CPCs pursuant to 66 Pa.C.S. § 102? The Commission’s affirmative answer was
discernible only by conduct and only in retrospect; for ten years, PUC undertook no formal
process to address the question when it became salient. Instead, DAS providers simply
filed for CPCs in due course and the Commission granted them. That the Commission
9 Although this Court has held that a measure of deference “approximating that
afforded to legislative rules” applies to an agency’s interpretation of its own ambiguous
regulation, see Nw. Youth Servs., 66 A.3d at 312; Commonwealth, Dep’t of Pub. Welfare
v. Forbes Health Sys., 422 A.2d 480, 482 (Pa. 1980), we have cited Auer only once, and
not on the subject of agency deference. See Goldman v. SEPTA, 57 A.3d 1154, 1177
(Pa. 2012) (citing Auer for its substantive holding). Conversely, our intermediate courts
have applied Auer uncritically. See, e.g., Yorty v. PJM Interconnection, LLC, 79 A.3d
655, 664-65, 664 n.5 (Pa. Super. 2013) (applying Auer deference and rejecting the
argument that the Christopher Court “limited or cast doubt” upon that doctrine); Bayada
Nurses, Inc. v. Commonwealth, Dep’t of Labor & Indus., 958 A.2d 1050, 1058 n.7
(Pa. Cmwlth. 2008) (en banc).
[J-81-2019] [MO: Mundy, J.] - 10
did not in any sense engage in a rulemaking process in the ten years before the reversal
that prompted the instant litigation undermines any claim to deference on par with
Chevron, which typically applies when an agency has employed a greater degree of
deliberation and transparency.
Even when PUC reversed its position, it did not follow a formal rulemaking process.
The Commission solicited input from the public, but it did not undertake the sort of
formalized notice-and-comment process generally relied upon to establish “legislative
rules,” i.e., regulations that have binding effect pursuant to a legislative grant of rule-
making authority, which we generally have granted some degree of deference. See
generally Nw. Youth Servs., 66 A.3d at 310-12 (distinguishing legislative and interpretive
rules by virtue of the processes by which they are promulgated). Hence, on any fair
account, it remained an instance of interpretive rule-making as we have employed that
term, and the question of deference would appear to be governed by Skidmore rather
than Chevron.
But Skidmore, if not the entire Chevron framework, is a hopeless muddle. As
noted, the Supreme Court in Skidmore held that federal courts must calibrate their
deference to an agency’s less-than-formally-rendered interpretative rules based “upon
the thoroughness evident in its consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements,[10] and all those factors which give it power to
10 While “consistency with earlier and later pronouncements” is a Skidmore factor,
the Court has held that Chevron deference is not necessarily precluded where an
agency’s interpretations pursuant to legislatively delegated rule-making authority evolve
or even are reversed. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S. 967, 981-82 (2005). The Court in National Cable observed that “an initial agency
interpretation is not instantly carved in stone. On the contrary, the agency . . . must
[J-81-2019] [MO: Mundy, J.] - 11
persuade, if lacking power to control.” Skidmore, 323 U.S. at 140. Unpacked, this grand
language describes nothing more than courts’ approach to appellate arguments
generally, an enterprise that entails no deference at all. I can identify no Pennsylvania or
federal case in which I can conclude with confidence that application of Skidmore
deference clearly led to an agency-advocated ruling that the court would have rejected
but for its deference.11 In any event, by encouraging courts to calibrate the degree of
their deference to agency opinions based upon “all those factors which give it power to
persuade,” id., Skidmore does nothing more than recite a judge’s job description. As
such, it is potentially confusing and essentially useless.
In Mead Corp., Justice Scalia cogently argued that “the rule of Skidmore deference
is an empty truism and a trifling statement of the obvious: A judge should take into account
the well-considered views of expert observers.” Mead Corp., 533 U.S. at 250 (Scalia, J.,
dissenting). When it comes to technical subjects, an expert will tend to have an
advantage as a matter of course. As Justice Gorsuch aptly observed:
No one doubts that courts should pay close attention to an expert agency’s
views on technical questions in its field. . . . The fact remains, however, that
even agency experts can be wrong . . . . Skidmore . . . recognized both of
these facts of life long ago, explaining that, while courts should of course
afford respectful consideration to the expert agency’s views, they must
remain open to competing expert and other evidence supplied in an
adversarial setting.
consider varying interpretations and the wisdom of its policy on a continuing basis, for
example, in response to changed factual circumstances, or a change in administrations.”
Id. at 981 (cleaned up). But the Supreme Court in Kisor observed that the Court seldom
has deferred to an agency interpretation of its own regulation that departed from an earlier
interpretation. Kisor, 139 S.Ct. at 2417-18.
11 Cf. Kisor, 139 S.Ct. at 2427 (Gorsuch, J., concurring in the judgment) (noting that
in Skidmore itself the Court couched its ruling in terms of its independent interpretation of
the relevant provisions, turning only afterward to the question of what deference, if any,
the Court should grant the views of the Labor Department administrator).
[J-81-2019] [MO: Mundy, J.] - 12
Kisor, 139 S.Ct. at 2442-43 (Gorsuch, J., concurring in the judgment) (cleaned up).
Courts do not sit to ratify or parrot the directives of experts, nor does the judge offer an
expert a doctrinal leg up.
Maintaining the fiction that Skidmore has more than aphoristic value (if that) invites
only confusion and mischief. Justice Scalia put the point well:
[The Skidmore] doctrine (if it can be called that) is incoherent, both
linguistically and practically. To defer is to subordinate one’s own judgment
to another’s. If one has been persuaded by another, so that one’s judgment
accords with the other’s, there is no room for deferral—only for agreement.
Speaking of “Skidmore deference” to a persuasive agency position does
nothing but confuse.
Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 24 n.6 (2011) (Scalia, J.,
dissenting). When we consider an agency’s interpretive rule, it is probity, rather than
deference, that should dictate the success or failure of an agency’s position, whether that
position is embodied in an agency course of conduct and stability of interpretation or in
interpretive documents issued after a process lacking the hallmarks of formal rule-making
pursuant to a statutory grant of authority. Courts should respond to agency requests for
deference by saying: “Don’t command me. Convince me.”
While Chevron and Auer are premised upon an intentional legislative delegation,
Skidmore’s underlying rationale has been stated in terms of agency expertise.12 See
12 In Kisor, Justice Gorsuch concluded his critique of the somersaults turned by the
lead opinion as it strove mightily to preserve Auer deference in some shrunken and
anemic incarnation by suggesting that Auer should be jettisoned in favor of Skidmore,
“liberating courts to decide cases based on their independent judgment and follow the
agency’s view only to the extent it is persuasive.” Kisor, 139 S.Ct. at 2447 (Gorsuch, J.,
concurring in the judgment) (cleaned up). But in doing so, it seems to me, Justice
Gorsuch was proposing to preserve Skidmore no more strongly than I perceive it,
implicitly acknowledging that Skidmore deference is really not deference at all, but rather
a context-specific shorthand recalling only judges’ fundamentally independent,
interpretive function.
[J-81-2019] [MO: Mundy, J.] - 13
Wirth, 95 A.3d at 841 n.18 (noting “the specialized role and expertise of administrative
agencies”); accord Nw. Youth Servs., 66 A.3d at 311-12. Here, however, we began with
an entirely ad hoc statutory interpretation, one that for all we know may have involved no
meaningful deliberation whatsoever—specifically, that DAS providers are public utilities
under the Code. Then, without any indication of changes in the relevant circumstances,
save the installation of new Commissioners, the Commission elected to review its
established practice sua sponte, reversing itself after an abbreviated deliberative process
that fell short of the customary processes that characterize legislative rules.13
In any event, whether a statute imposes a given duty manifestly is a pure question
of law that a court should consider de novo, privileging no advocate’s view to a greater
extent than its legal merit warrants. See Piper v. Chris-Craft Indus., Inc., 430 U.S. 1, 41
n.27 (1977) (expressing doubts regarding the relevance of agency expertise to gleaning
whether a private right of action was intended by Congress, a question “peculiarly
reserved for judicial resolution”); Janus Capital Grp., Inc. v. First Derivative Traders, 564
U.S. 135, 145 n.8 (2011) (reaffirming Piper); Snyder Brothers, Inc. v. Pa. Pub. Util.
Comm’n, 198 A.3d 1056, 1083 (Pa. 2018) (Wecht, J., concurring) (“Statutory
interpretation is an important part of the work that we do. We do not subcontract that
interpretive enterprise to administrative agencies.”). While Chevron assumes that the
legislature has some latitude to provide a broad statutory directive intending that agency
experts will flesh out the finer points based upon their institutionally specialized
13 Two of five commissioners dissented from the Commission’s determination. See
Order, Review of Issues Relating to Commission Certification of Distributed Antennae
System Providers in Pennsylvania, 3/17/2017 (Chairwoman Gladys M. Brown and Vice
Chairman Andrew G. Place, dissenting), reconsideration denied, 5/4/2017.
[J-81-2019] [MO: Mundy, J.] - 14
knowledge and expertise, it nonetheless only comes into play upon a finding of statutory
ambiguity.14
In this regard, the Kisor Court spoke in restrictive terms about when a court may
find ambiguity in the context of the interpretation of regulations:
[B]efore concluding that a rule is genuinely ambiguous, a court must
exhaust all the traditional tools of construction. For again, only when that
legal toolkit is empty and the interpretive question still has no single right
answer can a judge conclude that it is more one of policy than of law. That
means a court cannot wave the ambiguity flag just because it found the
regulation impenetrable on first read. Agency regulations can sometimes
make the eyes glaze over. But hard interpretive conundrums, even relating
to complex rules, can often be solved. To make that effort, a court must
carefully consider the text, structure, history, and purpose of a regulation, in
all the ways it would if it had no agency to fall back on. Doing so will resolve
many seeming ambiguities out of the box, without resort to Auer deference.
If genuine ambiguity remains, moreover, the agency’s reading must still be
reasonable. In other words, it must come within the zone of ambiguity the
court has identified after employing all its interpretive tools. (Note that
serious application of those tools therefore has use even when a regulation
turns out to be truly ambiguous. The text, structure, history, and so forth at
least establish the outer bounds of permissible interpretation.) Some courts
have thought . . . that at this stage of the analysis, agency constructions of
rules receive greater deference than agency constructions of statutes. But
that is not so. Under Auer, as under Chevron, the agency’s reading must
fall within the bounds of reasonable interpretation.
Kisor, 139 S.Ct. at 2415-16 (cleaned up).
As the Majority explains, no such ambiguity is apparent in this case, reading the
Code holistically and in light of the federal law that clearly has informed it. Accordingly, I
agree with the Majority that PUC is not entitled to relief.
14 In this regard, our own rules of construction provide that “[w]hen the words of the
statute are not explicit,” we “may” seek to glean the intention of General Assembly’s intent
by reviewing “administrative interpretations” of the statute. 1 Pa.C.S. § 1921(c)(8). But
the “may” is telling. Administrative interpretations bear utility only to the extent that they
have legal merit. The rule neither directs nor suggests that agency interpretations must
be accorded deferential weight.
[J-81-2019] [MO: Mundy, J.] - 15