The FCC’s 218 page “brief” defending its Open Internet Order begs a big question.
How many times is it “reasonable” for any agency to assert that their core legal arguments are “reasonable” before they sound unreasonable? A few? Several? A dozen?
Of the 19 core statutory arguments in the summary defense of the FCC’s Open Internet order, TWELVE defend the order by declaring the FCC’s legal judgment was “reasonable.”
When arguing in court that the FCC has the statutory authority to common-carrier-regulate the Internet for the first time, shouldn’t the FCC be able to declare at least once in their summary defense: “the law says,” “precedent supports,” or at least “Congress intended?”
For the sake of variety wouldn’t it be more “reasonable” for FCC to fess-up and just say: “you can trust us on this one, and this one, and this one, and this one, and this one, and this one, and this one, and this one, and this one, and this one, and this one, and this one?”
For the sake of legalese wouldn’t it be more “reasonable” for the FCC to perform a Gregorian chant before the court of: “Causewesayitisso, Causewesayitisso, Causewesayitisso, Causewesayitisso, Causewesayitisso, Causewesayitisso, Causewesayitisso, Causewesayitisso, Causewesayitisso, Causewesayitisso, Causewesayitisso, Causewesayitisso.”
Repetition may work in politics and media, but in court doesn’t repetition tend to spotlight a legal flaw and then remind judges of it over and over again, and again, and again, and again, and again, and again, and again, and again, and again, and again, and again, and again?
Isn’t it always “reasonable” for “strongest possible” legal cases to rely on the self-judging of twelve cumulative judgment-arguments stacked interdependently on top of each other -- Jenga block tower style?
Isn’t that what the judicial system is all about? Defending the Rule of Flaw?
Let’s protect the FCC’s expert judgment here and give the FCC the benefit of the doubt that they have earned from their bipartisan expert work in this proceeding.
Surely it is “reasonable” for the FCC to self-judge that Congress intended the 1934 public telephone network and the 2015 Internet to be exactly the same thing by definition.
Surely it is “reasonable” for the FCC to self-judge that the Public Switched Telephone Network (PSTN) is definitionally the same as the “Internet,” but of course not the same as the “Internet of Things.” (Doesn’t everyone know that the Internet is a network of “stuff” and not of “things?”)
Surely it is “reasonable” for the FCC to defend in court the FCC’s self-claimed congressional authority to self-modernize the 1934 Communications Act, while at the same time rejecting House and Senate legislative solutions to provide the FCC with the very statutory authority that the FCC is telling the court that they already have?
Surely it is “reasonable” to assert sweeping rate regulation authority in Title II section 201 and not forbear from it, and then tell the court that there is no rate regulating going on when the FCC’s whole justification of the order is to empower the FCC to “block” different commercial rates from being charged, and “ban” any permanent price above zero from being charged for all downstream Internet traffic?
Surely it is “reasonable” for the FCC to say that the two mutually-exclusive definitions of “telecommunications” or “information services” -- in FCC/court precedent and in the 1996 Telecommunications Act -- can now be “reasonably” interpreted by the FCC to be interchangeable?
Surely it is “reasonable” to advance a legal theory to the court that the court knows captures both ISPs and edge cloud providers, while applying it unequally to only ISPs?
In sum, surely it is always “reasonable” for the FCC’s means to be unreasonable if the FCC’s end goal is not unreasonably unreasonable. Isn’t that administrative flaw at its best?
