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The past week has been remarkable if anticipatable. Federal Communications Commission (FCC) Chairman Ajit Pai announced his plans to roll back the 2015 Open Internet Order (OIO) on Tuesday. On Wednesday, he released the text of the Restoring Internet Freedom Order (RIFO), which will replace the Open Internet Order. The details of the RIFO are largely as expected, undoing the OIO’s Title II reclassification of Broadband Internet Access Services, disclaiming Section 706 as a grant of regulatory authority, putting forth evidence that the OIO’s promise to increase investment and deployment has not manifested (and, if anything, backfired), and generally rescinding the majority of the rules adopted in 2015.
The response to the RIFO has also been, in broad strokes, as anticipated, with pro–net neutrality voices taking to the media with proclamations of the internet’s impending death. Further responses have come from pro–net neutrality legal commentators providing assurances that the RIFO will be overturned in court. These assurances — and the arguments provided to support them — have also largely been as one would expect: the Commission’s change in policies is arbitrary and capricious, the classification decision isn’t a permissible reading of the statute, and the Commission lacks factual support for the Order.
The interesting thing about these arguments is how familiar they sound: They are largely the same as the arguments made on the other side against the 2010 and 2015 OIOs. Needless to say, it is nice that net neutrality proponents are finally embracing the arguments that those of us who have been critical of the FCC’s Open Internet efforts have been making for nearly the past decade. This newfound concurrence, however, does raise interesting questions about how the inevitable legal challenge to the RIFO will proceed.
Why the Restoring Internet Freedom Order will probably survive judicial challenge
When it comes to the legal arguments for and against net neutrality, there really is little new under the sun. The basic issue remains that Congress has not given the Commission clear direction for how it should approach the internet. The Communications and Telecommunications Acts provide two general frameworks (Title I Information Services and Title II Telecommunications Services), neither of which maps particularly well onto the internet’s architecture. And there are other potential authorities for regulation in the acts — such as Section 706 — but these generally are also of ambiguous or limited meaning.
At this point either the Supreme Court or the DC Circuit have given carte blanche to the FCC to adopt whatever interpretation of these statutes the Commission deems best. All that it needs to articulate are facts that demonstrate the reasonableness of that interpretation — and the courts will defer substantially to the Commission in determining whether those facts are themselves reasonable. The courts have affirmed FCC arguments that internet service is best regulated both under Title I and under Title II; they have affirmed arguments that Section 706 both is and is not an independent grant of authority. In affirming these arguments, the courts have accepted facially absurd arguments that internet service providers (ISPs) do not rely on FCC regulations in making investment decisions, merely hypothetical theories of innovation and investment, and factual assertions supported only by unanalyzed reference to comments contradicted in the record.
The reality is that this is how administrative law — the area of law that governs how federal agencies do their jobs — works. It is, under prevailing understanding, exceptionally deferential to agencies on questions of both fact and law. As the DC Circuit reminded us in its opinion affirming the 2015 OIO, courts do not “inquire as to whether the agency’s decision is wise as a policy matter.” The courts expressly accept that agencies will change their policies and interpretations of the law and even that an agency’s “conscious change of course adequately indicates” that a changed policy is better than the previous one. Indeed, an agency “must consider varying interpretations and the wisdom of its policy on a continuing basis, for example, in response to changed factual circumstances, or a change in administrations.”
That last part is important to highlight: The Supreme Court has consistently said for more than 30 years that a change of administration is sufficient reason for an agency to change between otherwise permissible policy interpretations. The courts, having previously blessed the basic legal and policy structure of the RIFO, are exceptionally likely to find that the recent change in administration alone would be sufficient basis to adopt the RIFO.
But there’s even more reason to expect the courts will affirm the RIFO: Compared to the OIO, the RIFO has exceptionally well-developed factual basis and analysis of that factual basis. The OIO was premised on a theory of innovation that promised the increase of investment in broadband networks. It provided little beyond conjecture to support that theory. In its details, it ignored, misused, and misrepresented evidence (that is, it was an “economics free zone”), resolved contentious points by pointing to favorable comments with a cursory statement that the Commission was persuaded by them, and relied on the Commission’s own assertions of expertise.
The RIFO, on the other hand, analyzes and rejects the theory put forth in the OIO, relying on substantive analyses of data to do so. There is certainly room to disagree with the data the Commission uses or its analysis thereof. But courts are not in the business of data analysis — they’re in the business of deference. The DC Circuit was willing to defer to the Commission’s fact-free conjectures without probing into vast record evidence that flatly contradicted the Commission’s theories. If the court was willing to defer to that, it will defer far more readily to an order that is supported to mainstream analysis of hard data and that is premised on legal interpretations that the FCC long held and the courts long affirmed.
What if the Restoring Internet Freedom Order doesn’t survive judicial challenge?
Everyone knows the next steps: On December 14, the FCC will adopt the RIFO by a 3-2 vote, and net neutrality proponents will then challenge it in the US Court of Appeals for the District of Columbia Circuit. Despite the discussion above, I am not going to make a strong prediction that the RIFO will survive that challenge. It is entirely possible — perhaps even likely — that the court will change how it reviews agency decisions, adopting a less deferential approach. Indeed, I have spent the past several years arguing that the courts should do just that. At some level, I would be thrilled if the courts reject the RIFO — greater judicial skepticism of agency action would unquestionably be a positive development.
This, however, is where things get interesting. If the DC Circuit does reject the RIFO, it will be because it has changed the same legal principles that led the court to affirm the OIO. Logically, if not necessarily procedurally, if the RIFO falls, the OIO must fall too (or, at least, be reconsidered by the court).
Procedurally it would be unusual for a court to do this. From the DC Circuit’s perspective, the OIO has been affirmed and is now the law of the land. Unless, or until, an issue comes up through its application, the DC Circuit has no occasion to review its prior order affirming it.
However, two options remain possible in the present case — both arising because the Supreme Court is still considering whether to review the DC Circuit’s OIO opinion. The first, less likely option is that the Supreme Court could decide to hold its consideration of the OIO in abeyance until the DC Circuit has reviewed the RIFO and then — should the Court decide to grant cert — it could hear arguments in both cases together. The second, more likely option, is that the Supreme Court could remand the DC Circuit’s OIO opinion back to the DC Circuit, to be reconsidered in conjunction with the challenges to the RIFO.
The reality is that neither of these options is particularly likely to come to pass. But what is certain is that the RIFO guarantees another two to three years of exciting net neutrality litigation are coming our way. Net neutrality truly is the gift that keeps on giving.
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