What The Court Will Decide On Network Neutrality -- Officially

[Commentary] In theory, the U.S. Court of Appeals for the D.C. Circuit will focus on two things when it hears Verizon’s challenge of the Federal Communications Commission’s Open Internet Order: 1) Did the FCC have the authority to make the network neutrality rules? 2) 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 DC 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 that 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 the FCC has the authority to make network neutrality rules and other arguments and statutes that stop the FCC from having network neutrality rules. 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.