O'Rielly: Court Gave FCC Limitless Authority in Title II Decision

Says consequences could be grave

FCC Commissioner Michael O'Rielly, sounding in something of a Halloween mood, took aim at a familiar target this week, hammering the FCC's decision to reclassify ISPs as Title II common carriers, but in the context of a federal court's decision not to overturn it, a decision he said could come back to haunt regulators and the courts.

O'Reilly voted against reclassification, but in a speech to the Hudson Institute Oct. 13 said he was not going to debate the merits of that decision, but instead focus on the court--the U.S. Court of Appeals for the D.C. Circuit--which he said "lacked appropriate rigor necessary for the conclusion reached and established a host of dreadful precedents that will haunt communications policy and administrative law for years to come."

O'Reilly said that court "went out of its way to bless an item full of holes and problems, an item not consistent with the requirements of the [Administrative Procedures Act], and an item that likely wouldn’t be sufficient under review by another court."

He said he recognized that it could sound like sour grapes to some, citing FCC Chairman Tom Wheeler's admonition that those who don't like a decision are destined to complain about it, or that the ends justify the means.

But he said for those who can look beyond the outcome, agree with it or not, to the process and the institutions of the FCC and the courts, "there is a sense of dread, or should be," he said, over the problematic path the two are traveling.

"In effect, logical reasoning, evidence-based conclusions, adherence to an item’s record, and, of course, providing requisite notice of the direction in a proceeding are no longer required to survive judicial review," he said.

"Unless undone by the Supreme Court or Congress," he warned, "the D.C. Circuit has granted virtually limitless authority to the Commission. That should worry everyone in this room..."

ISPs have sought full-court review of what was a three-judge panel decision in the Title II case. It would unusual for the court to grant a so-called en banc hearing, but denied or granted, the case is likely to be appealed to the Supreme Court.