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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.
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.
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.
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.