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Limited Government Groups Slam 'Chevron' Deference - Broadcasting & Cable

Limited Government Groups Slam 'Chevron' Deference

Cite Open Internet order; say court deference allow for regulatory overreach
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Limited government groups are taking aim at the so-called "Chevron" deference appeals courts accord agency rulings in appeals of the aforementioned.

The most recent such ruling regarding the FCC, which is targeted by the groups in a joint letter to Congress, was the U.S. Court of Appeals for the D.C. Circuit decision upholding essentially all of the FCC's decisions in reclassifying internet access as a Title II common carrier service subject to common carrier regulations.

In Chevron v. NRDC, the Supreme Court said that federal agencies were generally granted deference in interpreting ambiguous statutes given their subject matter expertise. In the case of the Open Internet order, the court was not ruling on the wisdom of that reclassification, only on whether the FCC did not exceed its authority in interpreting its ability to regulate internet access under prevailing statute.

In their letter, more than a dozen groups including Tech Freedom, the Taxpayer Protection Alliance and the appropriately titled Less Government said they wanted Congress to check "regulatory overreach" like the FCC's Open Internet order, by passing the Separation of Powers Restoration Act (SOPRA)—there is a House and Senate version—a Republican-backed effort to "clarify that the Administrative Procedure Act [APA] requires courts to conduct a new review of relevant questions of law when evaluating agency regulations — rather than simply deferring to the agency’s judgment."

APA is the law laying out how federal agencies can make their rulings. For instance, they can't be arbitrary and capricious.

“The FCC’s Open Internet Order is just one of many instances where Chevron deference has enabled gross regulatory overreach. SOPRA would prevent administrative agencies from effectively re-writing legislation to suit their purposes — often driven by politics — and restore legislative power to the American people’s elected representatives in Congress," the groups said.

President Obama very publicly pushed the FCC to reclassify ISPs as common carriers at a time when the FCC still appeared to be leaning toward not doing so.

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