Hastings Communications and Entertainment Law Journal


John Meisel


In 2015, the Federal Communications Commission ("FCC") decided to reclassify broadband Internet service as a telecommunications service subject to Title II regulations contained in the Communications Act. This decision is currently under review by a three­ person panel of judges for the D.C. Circuit. A key question in the review will be whether the FCC's reclassification decision is eligible for Chevron deference. The answer to this question will likely be based on lessons learned from similar cases dealing with Chevron deference that the Supreme Court has addressed. For instance, the fact that the reclassification decision is likely to be characterized as one with significant economic and political consequences is a particular focus of examination. Lessons of recent Supreme Court cases are identified and applied to the facts of the FCC reclassification decision. Incorporated into the discussion is an increasing unease among some justices of the Supreme Court over the seemingly unconstrained power of agencies that comprise the administrative state. Although there are signs that Chevron deference is less likely to be used to sanction agency interpretations of ambiguous statutes in the future, it is concluded that the FCC stands a very good chance of being granted Chevron deference given the specific facts of the reclassification decision.