83
In the Order, the Commission decided to forbear from
numerous provisions of the Communications Act. 2015 Open
Internet Order, 30 FCC Rcd. at 5616 ¶ 51. Full Service
Network raises both procedural and substantive challenges to
the Commission’s forbearance decision. None succeeds.
A.
Full Service Network first argues that the Commission
should have followed its regulatory requirements governing
forbearance petitions even though it forbore of its own accord.
In the Order, the Commission rejected this contention, stating
that “[b]ecause the Commission is forbearing on its own
motion, it is not governed by its procedural rules insofar as
they apply, by their terms, to section 10(c) petitions for
forbearance.” Id. at 5806 ¶ 438.
“[W]e review an agency’s interpretation of its own
regulations with ‘substantial deference.’” In re Sealed Case,
237 F.3d 657, 667 (D.C. Cir. 2001) (quoting Thomas
Jefferson University v. Shalala, 512 U.S. 504, 512 (1994)).
The agency’s interpretation “will prevail unless it is ‘plainly
erroneous or inconsistent’ with the plain terms of the disputed
regulation.” Everett v. United States, 158 F.3d 1364, 1367
(D.C. Cir. 1998) (quoting Auer v. Robbins, 519 U.S. 452, 461
(1997)).
The Commission’s interpretation of its regulations easily
satisfies this standard. By their own terms, the regulations
apply to “petitions for forbearance,” and nowhere say
anything about what happens when, as here, the Commission
decides to forbear without receiving a petition. See 47 C.F.R.
§ 1.54. To the extent this silence renders the regulations
ambiguous in the circumstance before us, the Commission’s
interpretation is hardly “plainly erroneous.” Everett, 158 F.3d
at 1367 (internal quotation marks omitted).
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