These two statutory classifications originated in the late 1970's, as the Commission developed rules to regulate data-processing services offered over telephone wires. That regime, the "Computer II" rules, distinguished between "basic" service (like telephone service) and "enhanced" service (computer-processing service offered over telephone lines). In re Amendment of Section 64.702 of the Commission's Rules and Regulations (Second Computer Inquiry), 77 F. C. C. 2d 384, 417-423, ¶¶ 86-101 (1980) (hereinafter Computer II Order). The Computer II rules defined both basic and enhanced services by reference to how the consumer perceives the service being offered. National Cable & Telecommunications Assn. v. Brand X Internet Services, ibid.
The question in City of Arlington, Texas v. FCC is whether a court must defer under Chevron to an agency's interpretation of a statutory ambiguity that concerns the scope of the agency's statutory authority (that is, its jurisdiction). 133 S. Ct. 1863 (2013). The argument against deference rests on the premise that there exist two distinct classes of agency interpretations: Some interpretations — the big, important ones, presumably — define the agency's "jurisdiction." Others — humdrum, run-of-the-mill stuff — are simply applications of jurisdiction the agency plainly has. That premise is false, because the distinction between "jurisdictional" and "nonjurisdictional" interpretations is a mirage. No matter how it is framed, the question a court faces when confronted with an agency's interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority. [Emphasis in original.] City of Arlington, Tex. v. FCC, ibid.
The misconception that there are, for Chevron purposes, separate "jurisdictional" questions on which no deference is due derives, perhaps, from a reflexive extension to agencies of the very real division between the jurisdictional and nonjurisdictional that is applicable to courts. In the judicial context, there is a meaningful line: Whether the court decided correctly is a question that has different consequences from the question whether it had the power to decide at all. Congress has the power (within limits) to tell the courts what classes of cases they may decide, see Trainmen v. Toledo, P. & W.R. Co., 321 U.S. 50, 63-64, 64 S.Ct. 413, 88 L.Ed. 534 (1944); Lauf v. E.G. Shinner & Co., 303 U.S. 323, 330, 58 S.Ct. 578, 82 L.Ed. 872 (1938), but not to prescribe or superintend how they decide those cases, see Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-219, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995). A court's power to decide a case is independent of whether its decision is correct, which is why even an erroneous judgment is entitled to res judicata effect. Put differently, a jurisdictionally proper but substantively incorrect judicial decision is not ultra vires. City of Arlington, Tex. v. FCC, ibid.
That is not so for agencies charged with administering congressional statutes. Both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires. Because the question — whether framed as an incorrect application of agency authority or an assertion of authority not conferred — is always whether the agency has gone beyond what Congress has permitted it to do, there is no principled basis for carving out some arbitrary subset of such claims as "jurisdictional." City of Arlington, Tex. v. FCC, ibid.
THIS CASEBOOK contains a selection of 35 U. S. Supreme Court decisions that discuss and analyze the regulation of carriers under the Communications Act of 1934.