Tethering the Administrative State: The Case Against Chevron Deference for FCC Jurisdictional Claims
The Journal of Corporation Law, Vol. 36, No. 4, pp. 823-845, Summer 2011
25 Pages Posted: 3 Apr 2011 Last revised: 29 Feb 2012
Date Written: March 31, 2011
Like many other agencies, the Federal Communications Commission has seen significant regulatory growth under President Obama. But unlike health care, financial reform, and other areas, this growth has come without statutory guidance from Congress. The FCC’s assertion of jurisdiction over broadband service is reminiscent of its earlier attempts to regulate cable and to deregulate telephone service, efforts that courts have viewed skeptically in the absence of specific statutory authorization. But this skepticism is in tension with Chevron, which grants agencies substantial deference to interpret ambiguities in the statutes that they administer.
This article argues that Chevron deference should not extend to agency jurisdictional claims, such as the FCC’s claim to authority over broadband. For both constitutional and policy reasons, courts should distinguish between agency action that fills a gap in a statutory scheme and action that defines the outer boundary of that scheme. As the Commission’s net neutrality project winds its way through the judicial system, courts should not allow the agency to define the limits of its own authority, and should instead search closely for a grant of authority from Congress.
Keywords: regulation, deregulation, Chevron, U.S.A., Inc. v. Nat. Resources Def. Council, Inc.
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