The future of the Federal Communications Commission's Open Internet order is in the hands of a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit. The panel heard arguments on Dec. 4 challenging the FCC's decision to reclassify the Internet as a telecommunications service under Title II of the Communications Act.
Challengers are claiming that the FCC exceeded its authority and that the agency violated the Administrative Procedures Act.
The challenges involve the FCC's reclassification of wired Internet, the classification of mobile Internet as a common carrier, the use of forbearance by the FCC to exclude certain parts of the Communications Act from enforcement. Some of the plaintiffs are also claiming the decision violates the U.S. Constitution's First Amendment.
"The issue is whether the FCC's actions are supported by the law," said Brookings Institution Fellow Stuart Brotman. "We're out of the policy domain and into the legal domain," he said, explaining that the FCC has to be able to show conclusively how its actions are supported by current legislation.
In addition, the FCC has to show that it adhered to the Administrative Procedure Act, since its actions are being challenged on claims that it didn't follow the requirements of that law. It's worth noting that the APA is a very big deal to the courts because it controls how the agencies of the federal government apply due process in their day-to-day operations. The APA applies to all agencies of the government, not just to the FCC.
This would explain the relative emphasis by the court on the claims involving the APA in the hearing. "There were more APA arguments than I expected," said Tom Struble, policy counsel for non-profit think tank TechFreedom. "I was somewhat surprised."
Brotman, who is also a member of the Harvard Law School faculty, said that the panel was well-chosen. He said that Judge Sri Srinivasan, an Obama appointee, has a strong background in the technology industry. Judge Stephen F. Williams, a Reagan appointee, has a strong background in telecommunications and his writings indicate that he has a deep understanding of the role of the courts when it comes to regulation.
In a Nov. 24 article about the appeal, The Washington Post quoted a 1991 argument that Williams made for judicial restraint when federal agencies propose controversial legal theories. The "courts have a duty in appropriate cases to curb agency lawlessness, and carrying out that duty contributes to sound governance," Williams wrote.
Judge David S. Tatel, a Clinton appointee, is well-known for having stymied the FCC's efforts in the past. He was the judge on the Verizon case when the court threw out the last set of network neutrality rules about two years ago. In his decision, he said that the FCC was exceeding its authority in the manner in which it was trying to enforce net neutrality.
Having Judge Tatel on the court in the current case is going to be critical since both sides are claiming to have interpreted his ruling in the Verizon decision properly. At least Judge Tatel will have the advantage of knowing what he was actually thinking.