The U.S. Court of Appeals for the D.C. Circuit’s 2-1 majority decision to completely uphold the Federal Communciations Commission’s Open Internet Order on every single argued point surprised most everyone, given the number and seriousness of the legal challenges put forth and the selective skepticism the judges signaled at oral arguments. Given that this total support of the FCC was not anticipated, what does this precedent mean practically?
1. For now, the FCC effectively enjoys complete deference from this court on Open Internet issues.
The majority dismissed every single one of the petitioners’ best legal, process and constitutional challenges and proactively cauterized them with court assertions that the FCC’s actions were reasonable, supported by the evidence, and compliant with the Administrative Procedures Act (APA) or that the challenges were unpersuasive.
2. The FCC is now the de facto Federal Communications Congress on Open Internet issues and the D.C Circuit appears to be a reliable non-check on its regulatory powers.
Until and unless the Supreme Court reverses this decision at least in part, or until Congress passes legislation to the contrary that becomes law, the FCC Open Internet Order is the law of the land. Given that the court majority’s total Chevron deference apparently ignored Congress’s role, congressional intent and its due-process guardrails enshrined in the normally guiding APA, for now the FCC is practically more of a creature of the executive branch than a creature of Congress on Internet issues.
3. The FCC and this affirming court decision de facto create new operative law that makes the FCC’s “virtuous circle” theory of Internet openness the effective “modern” purpose and organizing principle behind FCC regulation.
As Judge Stephen Williams’s dissent effectively explains in great detail, the FCC ignores and avoids discussing Congress’s 1996 purpose for the FCC of promoting “competition” because it so conflicts with and undermines the FCC’s homegrown purpose for itself of promoting “net neutrality” and an ”Open Internet” and the “virtuous circle of innovation” for the benefit of the FCC-created constituency of “edge providers.”
4. The FCC’s net-neutrality regime’s greatest strength, that three FCC votes can do anything, is now also its greatest vulnerability — three “no” FCC votes in the future.
This appeals court decision is a two-edged sword. What three FCC commissioner votes have created in the Open Internet Order, three future different FCC commissioner votes could destroy under the total agency deference this court decision confers on a future FCC majority.
Scott Cleland is president of Precursor LLC and chairman of NetCompetition, a pro-competition e-forum supported by broadband interests. For a longer version of this piece, visit multichannel.com/June20.