Thursday, February 25, 2010

Does Judicial Deference Cleve Along a Deregulation/Expanded Regulation Axis?

By all accounts it appeals that the D.C. Circuit Court of Appeals expressed great skepticism with the FCC’s claimed ancillary jurisdiction to sanction Comcast for meddling with peer-to-peer traffic of its subscribers. I share that concern for two reasons: 1) on administrative law grounds, the FCC should have initiated a notice and comment rulemaking before applying what sure looks like enforced rules; and 2) the FCC stretches the concept of ancillary jurisdiction in Title I of the Communications Act and then justifies the stretch primarily on Title II common carrier regulatory sections that offer a general sense that the FCC should promote access to the Internet and “advanced telecommunications capability.”

The D.C. Circuit surely has ample grounds to reverse the FCC, but if it were to do so what does such action mean in the broader context of judicial deference to the expertise of a regulatory agency and the scope of statutory interpretation accorded these agencies? Bear in mind that a majority of the Supreme Court in the Brand X case (affirming the FCC’s decision to treat cable modem Internet access as an information service) was quite willing to defer to the FCC in terms of its technical expertise and also on so-called Chevron grounds that the FCC reasonably interpreted ambiguous legislation.

So if the D.C. Circuit does not defer, does that mean that at least as to this fact pattern the FCC was unreasonable in its statutory interpretation and no degree of technical expertise can provide a cure? It also just so happens that the Supreme Court deferred to the FCC on a decision that appeared to generate a deregulatory outcome, while the D.C. Circuit’s likely non-deference applies to an expansion of the FCC’s regulatory wingspan.

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