The FCC and the 'second side of the market'

[Commentary] In Dec, the DC Circuit heard oral arguments in the appeal of the Federal Communications Commission's network neutrality order. At the heart of the appeal is the FCC's controversial decision to reverse nearly two decades of bipartisan policy by reclassifying broadband Internet access from a lightly regulated "information service" under Title I of the Communications Act to a heavily regulated common carrier "telecommunications service" under Title II of the Communications Act. The appellants argued that given the way the Internet works, the plain language of the Communications Act prohibits reclassification; the FCC, in turn, argued that as the expert agency, it has wide latitude to change its mind so long as it provides a reasonable explanation.

Without getting into the merits of this debate, let's assume for the moment that the D.C. Circuit agrees with the FCC and finds the commission's reclassification decision to be lawful. What is important to understand is that this ruling is not the end of the story: The next legal question to be resolved is whether the FCC properly applied Title II to the Internet in accordance with the plain terms of the statute and established case law. While this question will be ultimately decided by the court, there is no dispute that great pressure from the White House forced the FCC to engage in some serious legal gymnastics to reach a predetermined political outcome. However, by taking various legal liberties and shortcuts, the commission may have left itself vulnerable to remand (if not outright reversal).

[Lawrence Spiwak is the president of the Phoenix Center for Advanced Legal & Economic Public Policy Studies]