Tethering the Administrative State: The Case Against Chevron Deference for FCC Jurisdictional Claims‪.‬

Although it has made some recent moves toward regulatory reform, (1) reregulation has become a predominant theme of the early Obama administration. From the financial markets (2) and consumer lending (3) to the health care industry, (4) the President and Congress have enacted statutes designed to curb what they saw as prior administrations' deregulatory excesses. As a result, agencies throughout Washington are preparing to assume a more active role throughout the economy, overseeing and managing various markets in accordance with the will of the political branches. The Federal Communications Commission (FCC) has seen a similar sea change in its regulation of the telecommunications industry. since Julius Genachowski assumed the chairmanship in 2009, the number of open dockets at the Commission has ballooned to over three thousand. (5) Among other innovations, the Commission has released an ambitious roadmap to reallocate the electromagnetic spectrum (6) and has begun regulating services traditionally considered to be at the periphery of its authority, such as wireless data transmission. (7) Perhaps most notably, it has fired the opening salvos in the battle for net neutrality, a high-profile, high-stakes rulemaking proceeding that would extend the Commission's jurisdiction over broadband internet transmission. (8)