Former Top FCC Officials Disagree on Impact of Latest Take on Chevron Deference Rules

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By Paul Barbagallo  


The former chairman of the Federal Communications Commission and the former senior Republican commissioner disagreed sharply June 1 over whether the recent Supreme Court decision in Arlington, Texas v. FCC bolsters the FCC's defense in a separate federal appeals court case challenging the agency's rules for net neutrality.

During an episode of C-SPAN's “The Communicators,” which aired Saturday, June 1, just-departed FCC Chairman Julius Genachowski said he is more “confident” now about the FCC's chances, while former Commissioner Robert McDowell said the high court ruling does not “blow wind in the FCC's sails.”

The Supreme Court's decision in City of Arlington v. FCC, U.S., No. 11-1545, 5/20/13, held that in cases in which Congress has left ambiguous a regulatory agency's jurisdiction, “the court must defer to the administering agency's construction of the statute so long as it is permissible” under the framework established in Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984), known as Chevron deference.

In light of the ruling, Genachowski said Chevron deference “clearly applies” to the FCC's interpretation of the statutes on which its authority rests in the net neutrality case (Verizon Communications Inc. v. Federal Communications Commission, D.C. Cir., No. 11-1355, filed 9/30/11).


“The FCC had a very good day at the Supreme Court.”  



FCC Chairman Julius Genachowski

“The FCC had a very good day at the Supreme Court,” Genachowski said. “The [opinion] strengthens the agency's authority, as appropriate, given what the agency needs to do in the broadband era.”

“I was confident about the Open Internet [rules] litigation before the Supreme Court decision,” he added. “I'm even more confident now.”

Verizon Communications Inc. is challenging the FCC's net neutrality rules in a lawsuit before the U.S. Court of Appeals for the District of Columbia Circuit, claiming that the agency not only lacks the statutory authority to regulate web traffic, but that the regulations themselves are a violation of the company's First Amendment rights to control the “transmission of speech” over its network.

If the court agrees with Verizon, the FCC rules would be repealed, and every company that provides a pipeline through which consumers gain access to the internet, including Verizon, would be free to block websites or treat their own web content better than that of rivals. A Verizon win also would open the door for these same companies to challenge any FCC regulation on First Amendment grounds.

“The marketplace has shown that [the rules] are working,” Genachowski said. “We've seen since the Open Internet rules went into effect an increase in innovation and investment across the broadband economy.”

McDowell, who voted against the FCC's adoption of the rules, disagreed, saying there was no widespread marketplace problem of blocking or degrading of web traffic in the first place. He also said the Supreme Court decision will not help the FCC much in defending against Verizon's appeal.


“The Supreme Court decision … didn't give the FCC legislative authority.”  



Former FCC Commissioner Robert McDowell

“I don't think the FCC has the statutory authority,” McDowell said. “The Supreme Court decision … didn't give the FCC legislative authority. What it said was that if there's an ambiguity in your jurisdiction, the expert agency gets some deference here.”

On a statutory basis, the FCC's net neutrality rules rely heavily on Section 706(a) of the Telecommunications Act of 1996, which directs the FCC to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans … by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.”

“The language in the 1996 Telecommunications is about taking away regulatory barriers, deregulating, and never spoke to Open Internet and things of that nature,” McDowell said.

For the video of the C-SPAN episode, visit