The Open Internet Order Doesn’t Need Chevron

The Ohio Telecom Association’s challenge to the Federal Communication Commission (FCC)’s Open Internet Order is currently under consideration by the Sixth Circuit. As the Supreme Court recently reversed the legal doctrine known as Chevron in its Loper Bright decision, parties in this case must now address how the Order is affected by this development in their motions by July 8, 2023. It has been argued that the Order’s original need for Chevron may have been unnecessary, as Skidmore deference had already been in place.

This complicated regulatory situation revolves around a core concept: telecommunications service should be provided in a just, reasonable, and nondiscriminatory manner to avoid infringing on a user’s internet freedom. From the FCC’s perspective in the 1990s, advanced services designed for high-speed data transmission such as internet access were considered telecommunications services. However, this stance was later disputed when the FCC designated cable modems as non-telecommunication services in 2001. In 2005, in the Brand X decision, the Supreme Court agreed with the FCC after applying Chevron deference, allowing the FCC to reclassify cable modems in line with its interpretation of the Communications Act.

Fast forward a decade, and the FCC announced in 2015 that broadband internet access could not be blocked, throttled, or obstructed in light of being categorized as telecommunication. The D.C. Circuit confirmed this decision twice before it was rescinded by the FCC in 2017 due to the conclusion that data transmitted over the internet is not classified as telecommunication, aligning with the Brand X decision relying on Chevron deference. However, the D.C. Circuit subsequently upheld this decision using the very same Chevron deference, demonstrating the ongoing tension and circularity in this argument.

The FCC currently has the task of defending the 2024 Open Internet Order, this time without the benefit of Chevron deference. However, by using Skidmore deference—which emphasizes guidance offered by agencies based on experience and knowledge in their respective domains—the FCC’s case for the continuing protection of internet openness and fairness can be strengthened and align better with the principles of checks and balances within the Constitution. Furthermore, in the 2024 Open Internet Order, the FCC neither explicitly requested Chevron deference nor deemed the definition of “telecommunications” ambiguous; thus, its arguments may ultimately stand stronger without the need for it.

It is expected that in their upcoming supplemental briefings for the Ohio Telecom Association appeal, both parties will address not only the practical implications of the abolishment of Chevron but also the overall merits of the appeal itself. The outcome of the Ohio Telecom Association’s quest to have Open Internet protections nullified could be significantly influenced by how persuasively the FCC justifies their stance in the context of a changed legal landscape.

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