What The Court Will Decide On Network Neutrality –Officially
What The Court Will Decide On Network Neutrality –Officially
What The Court Will Decide On Network Neutrality –Officially

    Get Involved Today

    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.

    Why Does The FCC Have
    The Authority To Make Network Neutrality Rules?

    Administrative agencies get their authority from Congress. That
    can be a very specific and narrow instruction (e.g. ‘keep people from sending
    junk faxes’) or a very broad general instruction (e.g., ‘make sure all
    broadcasters ‘serve the public interest’).

    Congress doesn’t have to explicitly say “go come up with
    network neutrality rules” for the FCC to have authority. At the same time,
    however, the FCC can’t just make something up. There has to be something in the
    Communications Act that the FCC can point to and say “here is why we have
    authority to make these rules.” 
    This authority principle prevents the FCC from regulating carbon
    emissions from power plants or the EPA deciding who gets to own a TV station.

    In the case of the net neutrality rules, the FCC is relying
    on a broad instruction from Congress to promote broadband
    deployment and adoption
    (called the “Section 706 argument” for the Section
    of the Telecommunications Act of 1996 that added this law to the Communications
    Act”). In addition, the FCC has also pointed to several specific statutory
    responsibilities (like, ‘make
    sure telephone service is affordable
    ,’ ‘make sure video services
    are competitive
    ,’ ‘make
    sure wireless carriers serve the public interest
    ’), arguing that it cannot
    do these things effectively without a network neutrality rule.  In bringing its case against the FCC,
    Verizon is arguing that none of these instructions mean that Congress intended
    it to create net neutrality rules.

    Does Something Else
    Stop The FCC From Having Network Neutrality Rules?

    In addition to arguing the FCC didn’t have the authority in
    the first place, Verizon has also argued that the net neutrality rules violate
    their First Amendment rights. Verizon has also argued that other provisions of
    the Communications Act prohibit the FCC from applying the network neutrality
    rules. Finally, Verizon argues that the FCC did such a bad job explaining its
    reasoning that the rules are “arbitrary and capricious and otherwise not
    supported by the record.”

    The First Amendment

    Verizon argues that it has a First Amendment right to block
    whatever it wants. Verizon argues that, like a newspaper, it provides you with
    news but has a right to cover whatever it wants and say whatever it wants.
    Alternatively, it’s at least like a cable system. Just like Verizon FIOS
    decides whether or not to carry Al Jazeera America, and on what terms, Verizon
    argues it has the right to decide whether or not to go to AlJazeera.com, and on
    what terms.

    John Bergmayer has a more detailed explanation of the
    counterargument here. The short version is there is a difference between the
    business of delivering someone else’s speech and actually speaking. It does not
    violate the First Amendment to say that UPS has to carry everyone’s packages –
    including magazines it doesn’t like.

    Other Statutes That
    Prevent the FCC From Having Network Neutrality Rules

    Verizon has pointed to two statutes that say the FCC cannot
    regulate certain things ‘as a common carrier,’ meaning as a phone network
    (except to the extent they act like a phone network). Again, John has a more
    detailed look at this argument in this blog post. Basically, the FCC will
    argue that this limitation doesn’t apply here. 

    Arbitrary and

    Finally, whenever an agency makes a rule, it has an
    obligation to explain its reasoning and point to evidence in the record that
    justifies the decision. Verizon will argue that even if the FCC has the
    authority it claims, it did not do a good enough job justifying the network
    neutrality rule. 

    This would be the place you would expect all the arguments
    people make about whether the rule is a good idea or not to come up. But the
    legal standard for proving a rule is “arbitrary and capricious” is supposed to
    be very high. It’s not about whether the judges think the rules is a good idea
    or not. If there is any evidence to support the FCC’s decision, and if the rule
    even vaguely addresses the problem the FCC wants to solve, the court is
    supposed to uphold the FCC.