Chevron Deference? Maybe Not for Net Neutrality Regulation

by Mike Wendy on July 28, 2011

Last week, the DC Circuit threw out an SEC rule because it was developed in an “arbitrary and capricious” manner.  According to Free State Foundation’s Randy May (in his blog post DC Circuit Vacates [Net Neutrality] Rule), that action against the SEC provides an important signpost to the likely appeal of the FCC’s Net Neutrality regulation when it becomes ripe for court review (it still has yet to be officially approved).

The following excerpt was pulled from a link within May’s blog (from an FSF paper entitled Tethering the FCC: The Case Against Chevron Deference for Jurisdictional Claims).  It points out an interesting new twist, which might also be brought to bear in the appeal of the Net Neutrality regulation:

…[T]he Commission’s current push to expand its jurisdiction, highlight an important but often ignored tension in administrative law. The Chevron doctrine  generally requires courts to defer to an agency’s interpretation of ambiguous language in a statute that the agency administers. Chevron is premised on the assumption that agencies, not courts, should “fill any gap left . . . by Congress” in the agency’s organic statute.  But it strains the doctrine to apply Chevron to an agency’s conclusions about the scope of its jurisdiction. In these cases, the agency is not merely filling a gap within a statutory framework, but is instead defining the outer limits of that framework. There is a difference in kind between the policy question “what rules should govern broadband?” and the legal question “does the Communications Act allow the Commission to make rules governing broadband?” Courts appropriately defer to agency expertise when answering the former question, but should reserve the latter question for “the province…of the judicial department.” (Chevron link added by me)

Translation: Courts grant agencies leeway in interpreting statutes / creating rules where the guiding law is unclear.  But, they should not grant that same deference where the agency creates new areas of power or authority that have not been given to it by Congress.  For many, the FCC’s Net Neutrality regulation represents not an interpretation of ambiguous law, but rather a self-grant of authority to regulate, usurping Congress’ proper role.  For this reason, any court reviewing the rule should cast a skeptical eye (at the very least) toward the FCC’s action / jurisdictional grab.

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