It has been a big week for tech policy at the Supreme Court. As my AEI colleague Clay Calvert discussed, the NetChoice cases endorsed social media platforms’ First Amendment right of editorial control. But for the Federal Communications Commission (FCC) and other agencies, Loper Bright, which overturned Chevron, looms largest. The FCC in particular has long benefited from Chevron’s command that agencies, not courts, are the primary arbiters of an ambiguous statute’s meaning. Overturning this regime, and restoring that authority to courts, is likely to pose additional challenges for net neutrality, digital discrimination, and other FCC initiatives that capitalized on ambiguous language to accomplish the agency’s policy objectives.
Loper Bright is part of the Supreme Court’s broad critique of the administrative state’s power—a power perhaps best exemplified by then-President Obama’s infamous “pen and phone” strategy. Stymied by Congresses unable or unwilling to legislate, presidents from both parties increasingly used agencies to enact their policy decisions through statutory ambiguities. Chevron facilitated this end-run around the legislature by commanding courts to defer to an agency’s statutory interpretation if reasonable, even if the agency’s conclusion was not the best reading. The Major Questions Doctrine signaled the court’s discomfort with abuse of this power, and Loper Bright significantly narrows agencies’ ability to do so going forward.
Just how much agencies’ wings have been clipped is unclear. The judiciary’s job is to determine the meaning of a statute. The Court recognized that sometimes Congress intends a statute to delegate discretionary authority to an agency. And under the Skidmore doctrine, an agency’s interpretation can be persuasive evidence of a statute’s true meaning, though how persuasive depends on how convincing that interpretation is and how consistent the agency has been over time. But Loper Bright rejected Chevron’s fiction that every statutory ambiguity is a Congressional invitation for agencies to fill the gaps. Going forward, deference must be either expressed by Congress or earned by the agency, not assumed by default.
What does this mean for the FCC? The Communications Act is often difficult to read—the Supreme Court once called it a “model of ambiguity”—meaning the FCC often benefited from Chevron. In that sense, the post-Chevron era will create challenges for the agency. The recent net neutrality decision, for example, turns on the Act’s complicated distinction between “communications services” and “information services,” definitions written at the dawn of the Internet age. As I discussed earlier, one significant byproduct of Chevron was that the FCC could change its mind repeatedly about how to classify broadband—indeed, the court cited the FCC’s indecision as an example of how Chevron bred legal instability.
Going forward, the judiciary will decide which definition best describes broadband, as part of its duty to “say what the law is.” That doesn’t necessarily mean the FCC will lose—after all, in 2000 the Ninth Circuit found that broadband best fits under Title II, and the D.C. Circuit later suggested it would have ruled that way absent Chevron—but there will be no thumb on the agency side of the scale. Fitting broadband into the Communications Act has always been pounding a square peg into a round hole. But I’ve long argued that broadband is best classified as a Title I information service, especially given how many statutory requirements the FCC had to waive to make Title II classification work.
Loper Bright also threatens the recently-promulgated digital discrimination rules. The Infrastructure Investment and Jobs Act required the FCC to adopt rules preventing digital discrimination with regard to broadband access. Typically, discrimination implies an intent to treat people differently based on a prohibited ground. But the FCC adopted a broader definition to include “disparate impact” cases, meaning decisions that adversely affect a protected class regardless of intent. The potential sweep of such claims is significant, which can perversely deter broadband buildout by forcing companies to justify decisions based on technical or economic feasibility. Again, courts might uphold the rule, but without Chevron the agency faces an uphill battle arguing that the best interpretation of “digital discrimination” in the Infrastructure Investment and Jobs Act is one that might deter infrastructure investment.
By overturning Chevron, the Court hopes to shift the locus of legislative decision making back to Congress, where it belongs. There are significant benefits to shifting important, politically sensitive issues from agencies to Congress. It increases political accountability by placing key decisions in the hands of directly elected officials. And the legislative process makes more room for bipartisan compromise, assuring more gradual but more lasting change supported by a broader swath of the political spectrum. This shift won’t happen overnight—and it requires cooperation from a legislature interested in governing—but it’s a noble aspiration, and Loper Bright is a step in the right direction.