Why FCC won’t pass Appeals Court’s oral exam – Part 33 Open Internet Order research series

September 9^th looks to be a challenging day for the FCC.

For many good reasons, the FCC will face a skeptical D.C. Circuit Court of Appeals panel Monday in oral arguments for Verizon vs. FCC. The FCC will be defending its Open Internet order which mandated neutrality.

Overall the court will be skeptical because the FCC largely ignored the law, Congress, the facts, and the Constitution. Essentially, the FCC made up an industry problem that does not exist in order to repurpose itself for the Internet age. Simply, the FCC is not asking for slack from the court (i.e. Chevron Deference), it’s basically asking for carte blanche to grant itself unbounded authority going forward.

Verizon enjoys the advantage in this case because it need prevail in only one of its several strong challenges to the FCC’s order, while the FCC must convince the court to completely reject all of Verizon’s arguments.

Specifically, why will this court be skeptical here?

First, this court is not stupid.

They can spot an obvious cosmetic rebranding effort. The FCC basically rebranded and redressed their previous net neutrality enforcement order -- which this same court overturned in Comcast vs. FCC in 2010 -- as a new and improved “Open Internet” order.

It’s easy to see that the FCC wanted to leave the controversial term “net neutrality” in the past because the FCC scrubbed the term completely from the text of the actual rules and order and replaced it with the new more popular “Open Internet” branding. Unfortunately for the FCC, the “net neutrality” term haunts the new order throughout the footnotes and commissioners’ statements. This reminds one of the old wisdom that lipstick cannot disguise a pig.

Second, the FCC order did little to climb out of the deep hole of the 2010 Comcast vs. FCC decision.

In Comcast vs. FCC,the court essentially decided that the FCC did not have the authority to regulate the market behavior of broadband providers.

Hand-waving aside, Verizon vs. FCC is essentially a do-over of Comcast vs. FCC. To have a reasonable chance to reverse that detailed decision, the FCC needed to substantially upgrade its argument with new and better legal analysis. It also needed to present new and substantial facts, proof, and justification to win back any potential benefit of the doubt the court might be willing to give the FCC.

Unfortunately for the FCC, the FCC’s legal arguments for its authority have changed little substantively. Moreover, it did no substantive evidence gathering to prove that an “Internet openness” problem exists that requires a regulation fix, or that there has been a market failure that requires correction. In essence, the FCC’s argument boils down to: the FCC knows best and this is what the FCC wants to do.

Third, this court is well-versed in communications the law and congressional intent.

In no law has Congress given the FCC the new purpose or authority to preserve an “open Internet” or “Internet openness.” In the only place Congress spoke of Internet policy – section 230 of the 1996 Telecom Act – Congress essentially directed the FCC to do the exact opposite of what it is trying to do in its Open Internet order.

Finally, this court appreciates Section 706 is not tent-pole legal authority.

This court knows the Kennard FCC in the Clinton Administration already decided that section 706 was not new broad legal authority. Moreover, this court knows that Congress’ clear intent in section 706 was deregulatory, not regulatory, as the FCC now claims. And lastly, if the court closely reexamines the factual construct of section 706, they will find that it has become obsolete law in that Congress wrongly envisioned a future of advanced analog “switched” networks, not the digital Internet router networks that actually emerged.

In sum, the FCC is asking the Court to look the other way, trust the FCC and defend the FCC’s overreach. That would be hard, but not impossible for this court to do. Courts can be creative if they want to be, but in this particular instance, the FCC has given them little to work with. If a majority of the court were inclined to divine a way to uphold the FCC’s order, they possibly could, but prior precedents would present them with a maze of previously-determined legal dead ends to traverse.

Simply, the facts and law are not on the FCC’s side on this one; that is why they will face a skeptical court panel on Monday.

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FCC Open Internet Order Series