205 L. Ed. 2d 262
U.S.2019Background
- Charter Advanced Services provides Voice over Internet Protocol (VoIP) services allowing voice calls over the Internet.
- The Minnesota Public Utilities Commission attempted to regulate Charter’s VoIP offerings.
- Charter sued in federal court, arguing state regulation was preempted by federal law/policy.
- The District Court granted summary judgment for Charter; the Eighth Circuit affirmed, relying on the FCC’s policy of nonregulation to find preemption.
- The Supreme Court denied certiorari; Chief Justice took no part. Justice Thomas concurred in the denial and wrote separately.
- In his concurrence, Justice Thomas argued that an agency’s policy of nonregulation likely is not "Law" under the Supremacy Clause and expressed skepticism about agency-based preemption.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an agency policy of nonregulation can preempt state law | State (Lipschultz): No; agency nonregulation is not federal "Law" that preempts | Charter: Yes; FCC policy of nonregulation preempts conflicting state regulation | Eighth Circuit: yes (preempted); SCOTUS denied cert; Thomas concurrence: skeptical of agency-policy preemption |
| Whether an agency policy of nonregulation qualifies as final agency action for preemption | State: No; it is not final agency action | Charter: Yes; policy reflects agency decision and preemptive effect | Thomas: likely not final agency action under Bennett standard |
| Whether preemption requires grounding in statutory text enacted via bicameralism and presentment | State: Preemption must be rooted in statutes produced by Congress | Charter: Executive policy can have preemptive effect | Thomas: Preemption should be given only to federal standards that follow from statutory text created through bicameral presentment |
Key Cases Cited
- Charter Advanced Servs. (MN), LLC v. Lange, 903 F.3d 715 (8th Cir. 2018) (Eighth Circuit affirmed preemption based on FCC nonregulation policy)
- Bennett v. Spear, 520 U.S. 154 (1997) (defines "final agency action" standard)
- PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) (discusses Supremacy Clause and preemption principles)
- Wyeth v. Levine, 555 U.S. 555 (2009) (preemption requires clear federal standards; Thomas concurrence quoted)
- Department of Transportation v. Assn. of American Railroads, 575 U.S. 43 (2015) (concurrence on limits of executive rulemaking versus legislative power)
- Merck Sharp & Dohme Corp. v. Albrecht, 587 U.S. _ (2019) (Thomas concurrence referenced regarding final agency action)