Chevron Deference and Net Neutrality

Abstract

Ajit Pai’s Restoring Internet Freedom Order (“RIFO”) answers a question put to the Federal Communications Commission (“FCC”) on how best to regulate the Internet. What this means is that there was a gap in the statute in how to regulate the Internet and RIFO presents a defensible choice on how that regulation should occur. The guiding Supreme Court precedent on administrative decision making – Chevron – explains that “ambiguities in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion.” If Chevron applies, and it’s no doubt that Chevron applies here, then the question becomes (1) whether Congress has directly spoken to the precise question at issue; and (2) if not, whether the agency’s answer is based on a permissible construction of the statute. The fact of the matter is that administrative agencies are given wide deference under Chevron. There, the Supreme Court said “[w]hen a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail.” This deference is tough to overcome. A recent study found that courts upheld agency decisions 77.4% of the time when Chevron deference was applied. The same deference that led the D.C. Circuit to uphold OIO would also likely mean that RIFO will likewise be upheld. Ironically, this means that any decision that overturned RIFO would almost certainly be a reinterpretation of Chevron that would re-open the OIO to new scrutiny.