Net neutrality and the changing of the guard on the DC Circuit

[Commentary] June 14’s decision by the US Appeals Court for the DC Circuit focused not on network neutrality policy, but rather on the Federal Communications Commission’s statutory authority and administrative process. The court’s opinion is chock-full of staple admin law doctrines, including the logical outgrowth test (whether the agency gave sufficient notice of its final rule to allow for meaningful comment), the standard for an agency to depart from a prior policy, arbitrary and capricious review of agency decisionmaking, the “hard look” doctrine (whether the agency adequately supported its position and responded to critical comments), and, naturally, statutory interpretation under Chevron.

The two opinions may evince a changing of the guard at the DC Circuit. Historically, the court has been unafraid to perform the type of close, critical review of the record that Judge Williams undertook — and the Federal Communications Commission in particular has long been the DC Circuit’s whipping boy in such cases, suffering a higher reversal rate than most agencies. The majority opinion, co-authored by Democratic appointees over the dissent of a senior Reagan nominee, suggests that the court may finally be losing its appetite for more intrusive judicial review.

[Daniel Lyons is a Boston College law professor]