Before next week's oral argument on the FCC’s Open Internet rules we discuss why the FCC has the Authority to Make Network Neutrality Rules and what could get in the way.
On Tuesday, Michael Weinberg wrote about why we at PK think network
neutrality is important, and Sherwin Siy explained the actual net neutrality
rules the Federal Communications Commission (FCC) adopted. None of this,
however, will get debated in the courtroom on Monday September 9 when the oral
argument finally happens – at least not officially.
In theory, the reviewing court will focus on two things. Did
the FCC have the authority to make the net neutrality rules? And, even if the
FCC does have the authority, does something else prohibit the FCC from
exercising that authority here?
I say in theory because judges have their own opinions and
the D.C. Circuit is particularly famous for its high level of judicial
activism. But judges can’t come out and say “well, even though the FCC has
authority to do this, we think it’s a bad rule so too damn bad!” That wins you
a quick trip to the Supreme Court, which just last term reminded lower
courts they are supposed to respect the FCC’s authority and defer to its
expert judgment. So while policy
arguments may lurk in the background, here’s what everyone will actually be
talking about in the courtroom.