Will FCC Grant Congress Legislative Deference?

Scott Cleland Contributor
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Isn’t Congress due the same deference from the FCC that the FCC expects from the courts?

Will the FCC defer to the new Congress for a reasonable period of time so it can pass consensus on net neutrality legislation?

For the last year, ISPs have respected the FCC’s net neutrality rules, despite the FCC’s 2010 Open Internet Order being overturned by an appeals court last January.

What irreparable harm would occur if the FCC deferred to Congress, the source of all its existing and future legal authority, for a reasonable period of time in order to resolve this issue most legitimately?

A U.S. Supreme Court precedent called “Chevron Deference” is central to the FCC’s legal calculus of whether it can reclassify the Internet as a Title II telecommunications service for the implicit purpose of imposing a permanent zero-price on downstream Internet traffic.

“Chevron” is the Supreme Court precedent that grants administrative agencies like the FCC deference in interpreting the law if “the intent of Congress is clear” and the “agency’s answer is based on a permissible construction of the statute.”

Per a recent press report, Congress is working on introducing legislation to provide the FCC with the legal authority that the FCC says it needs to enforce net neutrality “rules of the road.”

Apparently the proposal would be a straightforward compromise to settle this protracted and unnecessary controversy.

Congress would create a new “Title X” that would put into law the net neutrality protections that President Obama publicly called for in November, and grant the FCC the authority to prevent ISP blocking of content, throttling of traffic, and “paid prioritization.”

With this modern direct legal authority to preserve the open Internet, the FCC then would have no need to apply 1934 Title II, common carrier law to the Internet.

Why is FCC legislative deference to Congress so important?

The whole purpose of the Chevron Deference precedent is to ensure that both the courts and independent agencies like the FCC defer to the clear intent and language of Congress’ statutes.

Chevron is all about enforcing the actual direct authority granted by Congress in law, and not having courts, or an independent agency like the FCC, try and effectively create new law absent Congress.

The reality is that “net neutrality,” Internet “blocking,” “throttling” or “paid prioritization” are terms and concepts not found in archaic communications law.

That is the core reason why the FCC’s attempts to effectively legislate new law and policy absent Congress were overturned by the courts in Comcast v. FCC and in Verizon v. FCC.

Someday, the FCC will need Congress to update its authority for the Internet age. Why shouldn’t the FCC start working cooperatively with Congress now?

The bottom line here is that everything that the FCC is and does ultimately comes from Congress.

The FCC is an agency that is “independent” from the executive branch, but not independent of the legislative branch, its constitutional master, or the courts, its constitutional check and balance.

At bottom, how does the unelected FCC want to publicly start off its relationship with the newly elected Congress?

Does the FCC want to respond constructively to a good faith effort by Congress to resolve the FCC’s publicly stated net neutrality enforcement problem, on a bipartisan basis, and more quickly than the courts can, by deferring its proceeding for a reasonable period of time?

Or does the FCC want to reject Congress’ help and authority, and rush ahead on a Title II path that could cause unnecessary irreparable harm to the Internet, consumers, industry and the FCC?

How the FCC chooses to publicly start its relationship with the new Congress will speak volumes.

Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, a research consultancy for Fortune 500 companies, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests.