Insights on Future FCC Decision-making Gleaned From a Judicial Dissent

[Commentary] As unorthodox as it might seem, Senior Circuit Judge Stephen F. Williams dissenting opinion in a major Federal Communications Commission case offers a likely roadmap on how the FCC will operate with Trump appointees and a Republican majority. Judge Williams’ extensive opinion in U.S. Telecom v. FCC has a flavor remarkably unlike a legal dissent. At its best, his work identifies real defects in the logic used by the FCC to reclassify broadband Internet access as a telecommunications service. Additionally, the Judge raises legitimate questions about the FCC’s rationales supporting a near total prohibition on paid prioritization of traffic. I fear Judge Williams dissent foreshadows an FCC willing to misinterpret case law and statutory mandates to achieve a desired outcome. I worry that an infatuation with economics will legitimize bogus rationales that the FCC will embrace hook, line and sinker. Who needs a maverick wireless carrier like T-Mobile when economists prove that any and all markets work just fine with 3 competitors? Lastly, I have concerns that FCC decision makers will overplay their hand. I have seen ample and unjustified arrogance, hubris and political intrigue at the FCC. It looks like the new management will continue—if not expand—the trend.