|NATIONAL CABLE & TELECOMMUNICATIONS ASSN. V.BRAND X INTERNET SERVICES (04-277) 545 U.S. 967 (2005)
345 F.3d 1120, reversed and remanded.
[ Thomas ]
[ Stevens ]
[ Breyer ]
[ Scalia ]
ON WRITS OF CERTIORARI TO THE UNITED STATES
APPEALS FOR THE NINTH CIRCUIT
[June 27, 2005]
Justice Breyer, concurring.
I join the Courts opinion because I believe that the Federal Communications Commissions decision falls within the scope of its statutorily delegated authoritythough perhaps just barely. I write separately because I believe it important to point out that Justice Scalia, in my view, has wrongly characterized the Courts opinion in United States v. Mead Corp., 533 U.S. 218 (2001). He states that the Court held in Mead that some unspecified degree of formal process before the agency was required for courts to accord the agencys decision deference under Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Post, at 12 (dissenting opinion); see also ibid. (formal process is at least the only safe harbor).
Justice Scalia has correctly characterized the way in which he, in dissent, characterized the Courts Mead opinion. 533 U.S., at 245246. But the Court said the opposite. An agency action qualifies for Chevron deference when Congress has explicitly or implicitly delegated to the agency the authority to fill a statutory gap, including an interpretive gap created through an ambiguity in the language of a statutes provisions. Chevron, supra, at 843844; Mead, supra, at 226227. The Court said in Mead that such delegation may be shown in a variety of ways, as by an agencys power to engage in adjudication or notice-and-comment rulemaking, or by some other indication of a comparable congressional intent. 533 U.S., at 227 (emphasis added). The Court explicitly stated that the absence of notice-and-comment rulemaking did not decide the case, for the Court has sometimes found reasons for Chevron deference even when no such administrative formality was required and none was afforded. Id., at 231. And the Court repeated that it has recognized a variety of indicators that Congress would expect Chevron deference. Id., at 237 (emphasis added).
It is not surprising that the Court would hold that the existence of a formal rulemaking proceeding is neither a necessary nor a sufficient condition for according Chevron deference to an agencys interpretation of a statute. It is not a necessary condition because an agency might arrive at an authoritative interpretation of a congressional enactment in other ways, including ways that Justice Scalia mentions. See, e.g., Mead, supra, at 231. It is not a sufficient condition because Congress may have intended not to leave the matter of a particular interpretation up to the agency, irrespective of the procedure the agency uses to arrive at that interpretation, say, where an unusually basic legal question is at issue. Cf. General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 600 (2004) (rejecting agencys answer to question whether age discrimination law forbids discrimination against the relatively young).
Thus, while I believe Justice Scalia is right in emphasizing that Chevron deference may be appropriate in the absence of formal agency proceedings, Mead should not give him cause for concern.