Verizon: FCC Open Internet Order Doesn't Qualify for Chevron Deference

In the latest legal volley on the network neutrality front,
Verizon has told the D.C. Federal Appeals Court that there is nothing in the
FCC's decision to adopt the Open Internet order that deserves Chevron

In a recent decision, the Supreme Court ruled that when a
statute's direction is ambiguous, a federal agency's interpretation of its own
authority deserves so-called Chevron deference, which is a court's recognition
of that agency's subject area expertise, say, energy policy for the DOE or communications
policy for the FCC.

TheFCC argued in a filing to the court that that High Court decision -- City
of Arlington vs. FCC -- means that its decision that it has the authority to
regulate ISPs as it did in the net neutrality rules is due that deference.

But in its response to that filing, Verizon said Monday that
Chevron only applies when it is resolving "a statutory ambiguity,"
which is not the case here. Verizon says there is no ambiguity about the FCC's
authority because it has not identified any authority. 

"Arlington did not hold that an agency is always 'entitled
to deference in its interpretation of statutes on which [it] relied
for...authority to issue rules,'" wrote Verizon. "Rather, the Court held
that, under the established Chevron framework, an agency is eligible for such
deference only when it resolves 'a statutory ambiguity' that constitutes an
implicit delegation to gap-fill." The company says here there is no gap to
fill because Congress has declined to grant specific authority over the
Internet, "instead creating a 'distinct regulatory scheme' for information
services" and "expressly directing that the Internet remain
'unfettered by...regulation...Congress has directly spoken to the question...and
precluded the [FCC] from regulating [the Internet].'"

Verizon says that even there were a gap that could be
filled, the law requires a reasonable construction of the statute, and the FCC
has not done so. 

In addition, says Verizon, the Chevron test in
inapplicable to the FCC's defense of the network neutrality rules because such
deference is inapplicable to the "ancillary authority" the FCC cites
to support its rulemaking powers.

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.