Chevron Decision's Domain May Be Shrinking

by

Randolph J. May *

The Hill 

July 7, 2015

Last August, in a column for The Hill titled "Happy 30^th Anniversary, Chevron!," I said that the Supreme Court's 1984 landmark decision in Chevron USA Inc. v. Natural Resources Defense Council had "fundamentally altered the existing jurisprudence regarding the deference owed decisions of administrative agencies by reviewing courts." And I concluded that, "for better or worse, the Chevron doctrine now is embedded in our jurisprudence."

Well, maybe not. Some portents in two major late term Supreme Court decisions hint that perhaps Chevron's domain is shrinking. If this is so, the implications for the exercise of broad discretion by the federal administrative agencies are considerable. And any weakening of Chevron's deference doctrine might mean another judicial defeat for the Federal Communications Commission in its effort to sustain new Internet regulations.

*   *   *

I don't want to suggest Chevron's demise is imminent. But the King and Michigan cases could portend a diminished role, at least in some cases. One such case might be the appeal, now pending in the D.C. Circuit, of the FCC's Open Internet order that fundamentally changes the way Internet service providers ("ISPs") are regulated. The FCC abandoned its previous interpretation of Communications Act in now classifying ISPs as regulated common carriers rather than unregulated information service providers. The ISPs claim that regulating them in this way, in essence as public utilities, will discourage Internet investment and innovation.

Certainly there is a good argument, a la King, that a case involving utility-like regulation of Internet providers is one of deep economic and political significance that should be decided without resort to Chevron deference, even though, ironically, it was Justice Thomas, relying heavily on Chevron, who affirmed the FCC's 2005 determination that ISPs are not common carriers.

Moreover, even assuming a court does apply Chevron, it is arguable, a la Michigan, that the FCC's order will be deemed unreasonable because the FCC's consideration of the costs imposed by the agency's regulation, at best, was paltry.

In sum, it could be that the King and Michigan cases, each in their own way, serve to undermine the Chevron's reach. If this is true, the chances the FCC will prevail in the appeal of its Open Internet order may be undermined too.

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