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Virtual Takings: The Coming Fifth Amendment Challenge To Net Neutrality Regulation, Daniel Lyons
Virtual Takings: The Coming Fifth Amendment Challenge To Net Neutrality Regulation, Daniel Lyons
Daniel Lyons
“Net neutrality” refers to the principle that broadband providers should not limit the content and applications available over the Internet. Long a rallying cry of techies and academics, it has become one of the central pillars of the Obama Administration’s telecommunications policy. The Federal Communications Commission’s efforts to regulate the “onramp to the Internet” have attracted significant attention from the telecommunications industry and the academic community, which have debated whether the proposed restrictions violate broadband providers’ First Amendment rights. But there is an additional constitutional implication of net neutrality that has not yet been sufficiently addressed in the scholarly literature: …
Tethering The Administrative State: The Case Against Chevron Deference For Fcc Jurisdictional Claims, Daniel Lyons
Tethering The Administrative State: The Case Against Chevron Deference For Fcc Jurisdictional Claims, Daniel Lyons
Daniel Lyons
Like many other agencies, the Federal Communications Commission has seen significant regulatory growth under President Obama. But unlike health care, financial reform, and other areas, this growth has come without statutory guidance from Congress. The FCC’s assertion of jurisdiction over broadband service is reminiscent of its earlier attempts to regulate cable and to deregulate telephone service, efforts that courts have viewed skeptically in the absence of specific statutory authorization. But this skepticism is in tension with Chevron, which grants agencies substantial deference to interpret ambiguities in the statutes that they administer. This article argues that Chevron deference should not extend …