Limited Gov’t Groups Slam ‘Chevron’ Deference

WASHINGTON — Limited-government groups are taking aim at so-called Chevron deference, a legal principle that requires appeals courts to defer to a government agency’s interpretation of a legal statue that agency is tasked with enforcing, unless that interpretation is judged to be unreasonable.

The most recent such ruling regarding the Federal Communications Commission — which the groups targeted in a joint letter to Congress — was the U.S. Court of Appeals for the D.C. Circuit’s ruling upholding essentially all of the agency’s decisions in reclassifying broadband Internet access as a Title II service under the Communications Act, subject to common-carrier regulations.

In its 1984 decision in Chevron v. the Natural Resources Defense Council, the Supreme Court said that federal agencies were generally granted deference in interpreting ambiguous statutes given their subject matter expertise. In the case of the Open Internet order, the D.C. Circuit did not rule on the wisdom of that reclassification, only on whether the FCC had exceeded authority in interpreting its ability to regulate Internet access under the prevailing statute.

In their letter, more than a dozen groups including Tech Freedom, the Taxpayer Protection Alliance and the appropriately titled Less Government said they wanted Congress to check “regulatory overreach,” such as the FCC’s Open Internet order, by passing the Separation of Powers Restoration Act (SOPRA). The bill — of which there are House and Senate versions —is a Republican-backed effort to “clarify that the Administrative Procedure Act requires courts to conduct a new review of relevant questions of law when evaluating agency regulations — rather than simply deferring to the agency’s judgment.”

The APA is the law laying out how federal agencies can make their rulings. For instance, they can't be arbitrary and capricious.

“The FCC’s Open Internet Order is just one of many instances where Chevron deference has enabled gross regulatory overreach,” the groups said. “SOPRA would prevent administrative agencies from effectively rewriting legislation to suit their purposes — often driven by politics — and restore legislative power to the American people’s elected representatives in Congress.”

President Obama very publicly pushed the FCC to reclassify ISPs as common carriers at a time when the FCC still appeared to be leaning toward not doing so.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.