DC Circuit Court of Appeals: So deferential it’s “asleep at the switch”

[Commentary] The bulk of the recent DC Circuit Court of Appeals opinion rejecting various challenges to the Federal Communication Commission’s Open Internet order can be summarized succinctly: “we defer.” Following accepted principles of modern administrative law – the law that governs the relationship between Congress, agencies like the FCC, and the courts – in evaluating the FCC’s interpretation of ambiguous statutory definitions the court needed only to consider whether the FCC’s order was minimally reasonable in order to affirm it. And so it did. I would suggest, however, that the DC Circuit followed these principles to a fault.

The judges focused so narrowly on individual issues, accepting the “reasons” offered by the commission to support the Open Internet order without any scrutiny, that they missed the underlying incoherency and lack of reasoning in the order. Dissenting, Judge Williams argued that parts of the order were so self-contradictory that commission staff must have been “asleep at the switch.” This is the core difference between the DC Circuit’s majority and dissenting views: whether it is sufficient that the agency supplied “reasons” in order to receive the benefit of deference, or whether those reasons must also have been arrived at through a reasonable decision-making process. If we accept the majority view, that the court need not inquire into the sufficiency of the agency’s decision-making process in order to receive the benefit of deference, then courts, too, may also be asleep at the switch.

[Gus Hurtwitz is an assistant professor at the University of Nebraska College of Law