Verizon: FCC Open Internet Order Doesn't Qualify for Chevron Deference

Tells court there is no statutory authority whose ambiguity FCC would get deference in interpreting

By John Eggerton -- Broadcasting & Cable, 6/4/2013 10:12:27 AM

In the latest legal volley on the network neutrality front, Verizon has told the D.C. Federal Appeals Court that there is nothing in the FCC's decision to adopt the Open Internet order that deserves Chevron deference.

In a recent decision, the Supreme Court ruled that when a statute's direction is ambiguous, a federal agency's interpretation of its own authority deserves so-called Chevron deference, which is a court's recognition of that agency's subject area expertise, say, energy policy for the DOE or communications policy for the FCC.

The FCC argued in a filing to the court that that High Court decision -- City of Arlington vs. FCC -- means that its decision that it has the authority to regulate ISPs as it did in the net neutrality rules is due that deference.

But in its response to that filing, Verizon said Monday that Chevron only applies when it is resolving "a statutory ambiguity," which is not the case here. Verizon says there is no ambiguity about the FCC's authority because it has not identified any authority. 

"Arlington did not hold that an agency is always 'entitled to deference in its interpretation of statutes on which [it] relied for...authority to issue rules,'" wrote Verizon. "Rather, the Court held that, under the established Chevron framework, an agency is eligible for such deference only when it resolves 'a statutory ambiguity' that constitutes an implicit delegation to gap-fill." The company says here there is no gap to fill because Congress has declined to grant specific authority over the Internet, "instead creating a 'distinct regulatory scheme' for information services" and "expressly directing that the Internet remain 'unfettered by...regulation...Congress has directly spoken to the question...and precluded the [FCC] from regulating [the Internet].'"

Verizon says that even there were a gap that could be filled, the law requires a reasonable construction of the statute, and the FCC has not done so. 

In addition, says Verizon, the Chevron test in inapplicable to the FCC's defense of the network neutrality rules because such deference is inapplicable to the "ancillary authority" the FCC cites to support its rulemaking powers.