Why the FCC’s Plans to Gut Net Neutrality Just Might Fail

The Federal Communications Commission will vote on—and given its Republican majority, likely pass—the network neutrality proposal during an open meeting May 18. But that will only start what promises to be a lengthy battle for the future of net neutrality.

To truly torpedo the requirements, FCC Chairman Ajit Pai will have to make the case that he’s doing so for good reason. A 1946 law called the Administrative Procedures Act bans federal agencies making “capricious” decisions. The law is meant, in part, to keep regulations from yo-yoing back and forth every time a new party gained control of the White House. The FCC successfully argued in favor of Title II reclassification in federal court in 2016. That effort means Chairman Pai might have to make the case that things had changed enough since then to justify a complete reversal in policy. “That’s a pretty dramatic reversal,” says Marc Martin, chair of communications law at Perkins Coie. “Presuming there’s an appeal, a court may find that arbitrary.”