Andrew McBride was quoted in the Law360 article, "DC Circ.’s Deference To FCC May Boost Open Internet Repeal," regarding the D.C. Circuit's order letting stand a panel decision to uphold the Federal Communications Commission's 2015 Open Internet Order.
“The core issue is, do they have statutory authority to go back to Title I under Chevron?” Andrew McBride said, citing the doctrine of Chevron deference to agency interpretations. “And the answer has to be yes in the D.C. Circuit after this.”
McBride also said now that it has been upheld, the panel decision could help Pai take a new regulatory approach.
“So it’s a funny situation where Tatel’s opinion upholding a very liberal regulatory regime toward the internet will now empower the Pai commission to take that … and go back to [former FCC Chairman Michael] Powell’s so-called light regulatory touch under Title I,” he said.
McBride said the traditional Republican view would be skeptical of Chevron deference, but in the case of net neutrality and potentially other issues before agencies, the Trump administration may benefit from the deference as it seeks deregulation. Judge Brett M. Kavanaugh’s dissent to the court’s decision denying en banc rehearing is also important and his opinions carry weight, McBride said, but the judge “is more waving the flag I think about the next case."
“And that’s where the real game lies, is how will the Trump administration agency-wide, not just the FCC, but how will they react to a call from the court to cut back on Chevron deference?" he said.