The FCC’s Open Internet order on the line as the Supreme Court challenges agency deference

[Commentary] A quiet revolution may be brewing in administrative law. For over thirty years, the Chevron doctrine has dominated the legal landscape, requiring courts to give significant deference to federal agency interpretations of the statutes that those agencies administer. But recent Supreme Court decisions, and in particular two cases on the current court’s docket, may signal that the justices are increasingly uncomfortable with the amount of power this doctrine has vested in unelected agency officials – and their decisions may significantly dampen the Federal Communications Commission’s decade-long attempt to construct a law of the Internet.

The Internet is unquestionably today’s dominant telecommunications network. But to regulate it, the FCC needs a statute from Congress delineating the purposes and scope of such regulation. The FCC’s attempts to manufacture jurisdiction in Congressional silence ring hollow, and illustrate why the Justices seem to be increasingly reluctant to embrace such a broad reading of Chevron.

[Daniel Lyons is an associate professor at Boston College Law School]