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Here’s the FCC’s full legal defense of its net neutrality rules

Ever heard of a little thing called ‘Chevron’ deference? You’re about to.


Eric Geller


We now know exactly how the FCC will defend net neutrality in court.

The Federal Communications Commission on Tuesday submitted its formal legal response to the high-profile lawsuit over its new net neutrality rules, urging a federal court to ignore dramatic assertions from the cable and wireless industries about the calamity that would befall the Internet if those rules were implemented.

The FCC’s 218-page legal brief, filed in the U.S. Court of Appeals for the District of Columbia Circuit, represents a forceful rebuke of the argument advanced by the trade group USTelecom and its industry allies, who say that the rules adopted in February are illegal and will ultimately hurt consumers.

The Commission voted on Feb. 26 to reclassify broadband Internet as a “telecommunications service,” opening it up to regulations that prohibit Internet service providers from unfairly prioritizing, blocking, or slowing down certain content. The FCC relied on the Communications Act of 1934, its founding statute, but ISPs and their trade groups argued in legal filings that the agency had exceeded its authority.

To support its reclassification, the Commission leaned heavily on a Supreme Court decision called Chevron v. Natural Resources Defense Council, which established the doctrine that courts should defer to agencies in interpreting statutes with which the agencies are most familiar.

The FCC also leaned on National Cable & Telecommunications Association v. Brand X Internet Services, in which the Court said that Chevron deference should be respected unless the statute in question is unambiguous. 

The core of the FCC’s legal argument is that the Communications Act is ambiguous, and that it is best positioned to interpret it.

“As the Supreme Court held, the term ‘telecommunications service’ is ambiguous and the relevant analysis of whether a broadband service includes a separate offering that is a ‘telecommunications service’ turns ‘on the factual particulars of how Internet technology works and how it is provided, questions Chevron leaves to the Commission to resolve in the first instance.’”

Legal experts have long predicted that the Commission would ground its case in the principle known as Chevron deference. “The FCC is on much stronger ground if they can say, ‘This statute is ambiguous or this particular term is ambiguous, and so I, as the expert agency, am applying my expertise to the facts and the law, and I am making this conclusion,’” Gerard Waldron, a partner at Covington & Burling LLP, told the Daily Dot in March.

The FCC’s legal brief responded to each component of the legal challenge over net neutrality, including the argument that its reclassification upended companies’ investment decisions in the broadband market. But it focused most intensely on the central charge: that the new rules rely on a reclassification that abused the language of the Communications Act.

In rebuffing this claim, the Commission reminded the court multiple times of Chevron deference, essentially an agency’s most powerful weapon in a court battle over a regulation.

“Review of the FCC’s interpretation of the statutes it administers is governed by Chevron,” the FCC said at one point. In another passage, the Commission argued that the lawsuit’s claim is “a frontal attack, plain and simple, on the Supreme Court’s decision in Brand X, and is foreclosed by that decision].”

The FCC’s full legal brief can be found below. The U.S. appeals court in Washington will hear oral arguments in the net neutrality case, USTelecom v. FCC, on Dec. 4.

Photo via Backbone Campaign/Flickr (CC BY 2.0)

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