Tethering the FCC: The Case Against \u3cem\u3eChevron\u3c/em\u3e Deference for Jurisdictional Claims

Despite the Administration\u27s recent rhetoric about regulatory review, regulation and re-regulation seems destined to be a primary theme of President Obama‟s first term. From the financial markets and consumer lending to the health care industry, the President and Congress have enacted statutes designed to curb what they saw as prior Administrations\u27 deregulatory excesses. The Federal Communications Commission has been an eager participant in this regulatory and re-regulatory wave: since 2009, under Chairman Genachowski\u27s leadership, the agency has adopted several new initiatives, ranging from a proposal to regulate set-top box video navigation devices to various measures to regulate wireless services. Perhaps most significantly and controversially, the Commission has imposed new net neutrality regulatory mandates on broadband Internet providers. As this paper shows, the FCC\u27s new regulatory initiatives stretch the boundaries of the Commission\u27s jurisdiction under the Communications Act and ought not to be accorded Chevron deference upon judicial review