Appeal of FCC Net Neutrality Decision Heard in Federal Court
Right now, nobody knows for sure how the court will decide when the ruling comes out in early 2016. "It wasn't a clear sort of case where you could tell what the judges were thinking," Struble said. "It's ambiguous." Brotman had a similar opinion. "They didn't necessarily tip their hand," he said. Noting that the decision will probably be unanimous, he said that the FCC really only had one argument, which is that they were the expert agency and used the discretion that's afforded them under the law. "The plaintiffs had more tools at their disposal," Brotman said. He said that the Internet had been deemed to be an information service by the government at various levels—including by the FCC. Brotman said that the FCC's case appears to be very weak. In fact, he said it was so weak that the Department of Justice didn't even agree to help argue the case, making the FCC argue the case alone on its own behalf. He said that the FCC's decision to bring wireless services into common carrier mix was also not on very strong legal ground. "There's very little statutory authority," Brotman said.In addition, the court could also find that the FCC acted outside of its authority and overturn the whole order in its entirety. If the court does that, then the FCC will probably either take its case to the full Court of Appeals or to the U.S. Supreme Court. And of course, the court could decide that the FCC acted properly, which will prompt the plaintiffs to follow the same appeal procedure. I think the outcome with the highest level of certainty is that the court will send the decision back to the FCC to start the whole decision-making process on the Open Internet order over again, if the agency chooses to do so. Such a finding will come about six months before the 2016 election, giving the FCC little chance of completing its work before a new administration comes into office. If the court's decision is appealed by either side, the process will take even longer. If that happens, it's unlikely that the FCC will be in a position to move forward, regardless of how the appeal goes, because the makeup of the commission will have changed, and Congress might even move forward on its long-stalled net neutrality legislation. In that event, the Open Internet order will be left dead in the water.
While the outcome of the arguments remains to be seen, some things are clear. First, the court can tell the FCC that it has to go back to the beginning with its Open Internet rule, publish the Notice of Proposed Rulemaking again, this time with proper notice and procedures, go through the comment period and the hearings again before attempting to make a decision that might pass muster with the court.