The Open Internet Order Doesn’t Need Chevron

In Ohio Telecom Association v. FCC, the consolidated challenge to the FCC’s Open Internet Order, which we now know will not be leaving the Sixth Circuit, the parties must brief the motions panel by July 8 as to the effect of the Supreme Court’s reversal of Chevron on the appellants’ motion to stay the order pending review. The agency has a more than credible argument that the Order never needed Chevron in the first place. Skidmore was there all along.

A word on the tortured history of Open Internet protection, a rather basic regulatory concept: Telecommunications service must be provided in a just, reasonable, and nondiscriminatory manner – indefensibly interfering with an internet user’s ability to roam and use the internet as they see fit would violate this statutory cornerstone of America’s communications policy. In 1998, the FCC stated that “advanced services”, like Digital Subscriber Line Services, which were ideally suited and meant for high-speed data transmissions such as internet access, are telecommunications services. But in 2001, the FCC stated that cable modems are not telecommunications service, and in the 2005 Brand X decision the Supreme Court affirmed the agency by — nobody is talking about this enough — applying the Chevron deference that the Supreme Court nuked last week. [Note: The first paragraph of Justice Thomas’s majority opinion: “We must decide whether that conclusion is a lawful construction of the Communications Act under [Chevron], and the Administrative Procedure Act. We hold that it is.”] How the world does turn. 

Ten years later, the FCC stated that Broadband Internet Access is telecommunications and thus cannot be blocked, throttled, or otherwise obstructed, all of which the D.C. Circuit affirmed twice. And then in 2017, the FCC “restored internet freedom” by rescinding those rules based on the conclusion that the carriage of data to and from the internet is not, in fact, telecommunications service, “consistent with the Supreme Court’s holding in Brand X,” which, it bears repeating, was a decision that relied on according Chevron deference to the FCC in how it reads the Communications Act. The D.C. Circuit affirmed the FCC’s change of heart in Mozilla v. FCC using — you guessed it — Chevron deference. 

Now the FCC must defend the 2024 Open Internet Order without Chevron.  No problem.

In 1944, 40 years before the Chevron decision, the Supreme Court held in Skidmore that the Department of Labor “office of the Administrator” was authorized by Congress to issue Bulletin No. 13 (1911) stating that employees should be paid for all time spent in the workplace, even if they are not completing a task every minute of that time.  In a six-page opinion (those were the days), Justice Jackson reasoned that the instruction in Bulletin No. 13 was “made in pursuance of official duty, based upon more specialized experience and broader investigations and information than is likely to come to a judge in a particular case.”  He went on to acknowledge that, although the Administrator’s bulletins are “not controlling upon the courts,” they nonetheless “do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”  What a sensible, constitutional way to honor the separation of powers: the judicial branch should listen to an agency of the executive branch on matters that Congress gave that agency to solve. It’s not a matter of deference, it’s a matter of consultation. When an Article III federal court is faced with a question like what is the technical makeup of an internet transmission, to ignore the FCC’s analysis is to ignore Congress’s decision to create the FCC. How would that reasoning comport with the Constitution?

The FCC saw this issue coming – Loper Bright obtained certiorari in May 2023, well before the new Open Internet docket was opened – and included Skidmore as a basis for its authority to return to the twice-affirmed 2015 Open Internet reasoning and rules. [Note: The FCC’s evolving, let’s call it, understanding of “telecommunications” was the marquee example of supposed agency overreach on which the Loper Bright petitioners relied to convince the Supreme Court that Chevron must go.] Its brief to the Sixth Circuit thus is likely to explain that the 2024 Open Internet Order does not need Chevron deference as to the statutory definition of “telecommunications”, but rather includes a great deal of factual analysis as to why internet transmissions are no different functionally than telephone calls: they use Internet Protocol technology instead of analog signals, but both services enable the subscriber to choose where to go, whom to contact, and what to retrieve. These are questions of fact, and not law, and it would be a closed mind indeed that blindered itself from the FCC’s view of the facts of internet access service.

Perhaps the most powerful point the FCC can make on July 8 is that it did not plea for Chevron deference in the 2024 Order, nor did it state that the term “telecommunications” is ambiguous. Actually, the 2024 Order recites how the Brand X and Mozilla opinions found the Communications Act ambiguous in order to justify giving the FCC deference when it decided to turn away from treating internet transmissions as telecommunications. One might even say that the parties challenging Open Internet protections always needed Chevron more than the FCC did.

Keeping in mind that the Ohio Telecom appeal is only at the motions stage, the upcoming supplemental briefing undoubtedly must speak to the merits of the challenge – likelihood of success is a crucial criterion for obtaining the stay that petitioners seek. If the FCC convinces the motions panel that the death of Chevron means nothing for the life of the Open Internet rules, that result surely will affect the merits panel’s reasoning.  And so the Supreme Court’s decision last week in Loper Bright might not be the silver bullet of reversal that the Ohio Telecom petitioners expected. The ironies dotting the path of Open Internet analysis seem never ending. One hopes that Open Internet protections last a long while, too.