Dissenting judge calls FCC net neutrality decision watery thin

by Steve Blum • , ,

And hanging by the barest of threads

Tuesday’s decision by a federal appeals court to uphold the Federal Communications Commission’s decision to regulate broadband as a common carrier service was not unanimous. The dissenting judge made three points in his counter-opinion. Two are spot on and the third is a judgement call, one that the other two judges who heard the appeal fairly didn’t buy.

Stephen Williams agreed with his two colleagues – Sri Srinivasan and David Tatel – that the FCC can reclassify Internet access and make it a telecommunications service which is potentially subject to detailed regulatory oversight. The FCC used its discretion to “forbear” from exercising the lion’s share of that authority and not try to manage, for example, the rates charged by providers or the details of their service plans. But it does have that authority should it want to use it in the future.

Next, Williams argues that the facts the FCC used to justify its decision “are weak at best and linked to the Commission’s change of policy by only the barest of threads” and its “explanation of the policy is watery thin and self-contradictory”. I don’t necessarily agree with his choice of words, but he’s correct in pointing out the weaknesses of an FCC decision that was written to support a politically determined outcome. The problem was compounded when the Obama administration, in effect, told FCC chair Tom Wheeler to drop his no lobbyist left behind plan and impose explicit common carrier rules. A proceeding record that was being crafted to support one approach had to be hastily rewritten to support another, and it shows.

Williams then concludes the FCC made such a bad job of it that its decision should be overturned. Srinivasan and Tatel disagreed, and instead threaded their way through the FCC’s decision and found that there was an adequate factual and deliberative basis for it. And the two-judge majority prevailed. But Williams’ points could loom larger if the court case grinds on.

There’s a good chance, though, that the case could end right where it is now. Even though AT&T has vowed to take it all the way to the supreme court, there’s something like a consensus among observers – on both sides of the issue – that further review is unlikely. Because all three judges agree the FCC has the authority to do what it did and no other appeals court case says differently, there’s no unresolved or contradictory reading of the law to arbitrate. Without that, commenters say, the supreme court typically doesn’t get involved.