Supreme Court Skeptical of Chevron, Puts Title II for Broadband in Its Crosshairs

This week's Supreme Court oral arguments on the fate of the doctrine of “Chevron deference” were ostensibly about fishing boats. But, their practical implications further narrow the pathway for the FCC’s proposal to regulate the Internet under Title II of the Communications Act.

Under Chevron deference, courts defer to administrative agencies' interpretations of ambiguous statutory terms, even if the court itself thinks the agency is wrong about that interpretation. Since Chevron has been the reason courts allowed the FCC to classify broadband as a Title II service before, the current FCC will likely need to rely on it again for its latest effort to survive judicial review.

However, some members of the Supreme Court view the net neutrality saga as one of the main reasons to dispense with Chevron. Justice Gorsuch, for example, lamented how Chevron enables the FCC’s flip-flopping on broadband classification, starting with an earlier case called Brand X:

I'm struck on that score by the Brand X case, which involved broadband, in which this Court said, okay, agency, you automatically win with respect to one interpretation of the Bush administration, I believe it was, and then, of course, the next administration came back and proposed an opposite rule. And then the next administration came back and flipped it back closer to the first. And as I understand it, the present Administration is thinking about going back to where we started.

Justice Gorsuch is right that regulatory ping-pong Chevron enables is bad for regulatory certainty, which, in turn, is bad for investment and innovation in broadband networks. The FCC could—and should—stop the instability on its own. But, if it doesn’t, the Court is signaling there won’t be as much deference this time.

If Chevron is overturned, we’d be left with so-called Skidmore deference in which an agency’s interpretation of an ambiguous statute gets respect but not controlling weight. Justice Kavanaugh, who has already registered his skepticism of the FCC’s authority to regulate broadband under Title II, suggested that is the way to end the flip-flopping.

A big difference between Skidmore and Chevron—there are others—is, when the agency changes position every four years, that's going to still get Chevron deference, but Skidmore, with respect to that interpretation, would drop out because it's not been a consistent and contemporaneous— consistent from the contemporaneous understanding of the statute.

Title II classification for broadband has not been a consistent interpretation by the FCC, nor is it contemporaneous with the Communications Act of 1934. The only other instance of it was a short period from 2015 to 2018. So, if Chevron falls, Skidmore won’t do much to rescue the FCC.

As one advocate put it to the Court, “That broadband case is coming here.” Indeed, it is, and the legal obstacles to the FCC’s Title II fixation keep mounting. As ITIF argued in its comments to the FCC, Title II for broadband is already unlikely to pass muster under the Administrative Procedure Act and the Major Questions Doctrine. If even Chevron’s days are now numbered, so are the prospects of Title II regulation of the Internet.

And that would be no sad thing. Title II is the wrong framework for broadband. ITIF has long supported net neutrality legislation that would end the regulatory ping pong and provide the legal framework and regulatory certainty necessary to sustain investment that produces high-quality broadband for all Americans. Since Title II for the Internet is now even more likely to be not just bad policy but bad law too, the FCC would be better off abandoning the current proceeding and instead focusing on policies that actually improve broadband for consumers.