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Abstract

In 1984, the Supreme Court decided Chevron U.S.A v. Natural Resources Defense Council, which determined that courts should defer to a regulatory agency’s judgement when faced with interpreting an ambiguous statute. Subsequently, the Court reaffirmed this finding in Brand X in the early 2000s. The decision in this latter case has broad implications for the issue of net neutrality - specifically, whether the FCC can dictate policies which inherently favor those who support a neutral or competitive internet. The precedent in these cases has been followed by, in particular, the D.C. Court of Appeals in a number of more recent challenges to the FCC’s authority to regulate Internet Service Providers. History notwithstanding, in this essay, I argue that the Supreme Court should reconsider Chevron’s precedent if it is given another opportunity to do so. Specifically, this essay argues that overturning Chevron will allow for legislative clarity, emboldening both the judiciary and stakeholders alike. Additionally, a binding view of the law will allow for new innovations to take place: at present, internet service providers and entrepreneurs (some of those who benefit from either of the two readings of the law respectively) must anticipate frequent changes. Accordingly, the potential for a new reading limits investment and technological progress. In order to achieve this end, this essay not only calls on courts to no longer defer to agencies but also on interest groups themselves to no longer enable the continuation of Chevron.

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