We won’t defer when you’re wrong

When should a court defer to an agency’s interpretation of its governing statute and/or its own regulatory actions? I got interested in this question because deference by a flummoxed Supreme Court gave us Brand X, with its ahistorical “this looks really tricky so we’ll let the FCC categorize highspeed internet access” approach. In this week’s Third Circuit opinion about the Janet Jackson Super Bowl incident, the court doesn’t defer much. At least three times, it corrects the FCC’s reinterpretation of past regulation. 1. FCC: We gave notice of and a…