How Might the Supreme Court, If It Reviews the Federal Communication's 2015 Open Internet Order, Utilize the Chevron and Arbitrary and Capricious Tests?

The article focuses on two Supreme Court decisions, King v. Burwell and FCC v. Fox Televisions Stations, Inc., that provide diametrically different models for how deferential a court should be when it reviews administrative action. The former case addresses how deferential a court should be for an agency’s statutory interpretation of an ambiguous statute for a question that has significant economic and political effects but Congress had not expressly delegated the question to the agency. The latter case addresses how deferential a court should be when an agency’s changes a policy that is within its statutory authority. These two cases are briefly explained and then applied to the specific circumstances of the Federal Communications Commission’s 2015 Open Internet Order and the 2016 D.C. Circuit’s review of the action.

This administrative action involved a reclassification of broadband service and generated substantial public comment and political posturing. If the Supreme Court decides to hear an appeal of the D.C. Circuit’s upholding of the agency action, then there is now a realistic possibility that the Court ignores the agency’s statutory interpretation in its entirety and reserves for itself resolution of the question. However, if the Court grants Chevron deference to the agency, there is a strong probability that it will find the agency’s change in policy a reasonable policy choice.