Chevron, Cooperative Federalism, and Telecommunications Reform

In this Article, Professor Weiser argues that the advent of cooperative federalism statutes, like the Telecommunications Act of 1996, calls for a new conception of federal court review of state agency decisions. In particular, Professor Weiser suggests that federal statutes that invite state agencies to interpret federal law subject only to federal court review should be interpreted as calling for a deferential standard of review. Such a standard, to be sure, would allow cooperative federalism statutes to mean different things in different states. But as Professor Weiser illustrates with reference to the Telecommunications Act, the very nature of cooperative federalism statutes encourages states to implement and experiment with alternative regulatory models to meet local needs and desires. Moreover, the underlying rationales of the Chevron doctrine-which require a deferential standard of review of federal agency decisions-clearly militate in favor of deference to state agencies as well as federal ones. Nonetheless, highighting the need to preserve the uni- form application of federal law, the federal courts have concluded in theory that they will not defer to state agencies, while in practice they have consistently looked for ways to defer to state agency decisions. Thus, only by recognizing that uniformity in federal law reflects a goal and not an absolute mandate -- and deferring to state agencies where Chevron recognizes that courts should not second-guess agency decisions-can the federal courts facilitate the emergence of the cooperative federalism state and extricate themselves from the highly technical policy issues that Chevron properly assigns to agencies