Why the Courts Will Have to Save Net Neutrality

[Commentary] Federal Communications Commission Chairman Ajit Pai faces a serious legal problem. Because he is killing net neutrality outright, not merely weakening it, he will have to explain to a court not just the shift from 2015 but also his reasoning for destroying the basic bans on blocking and throttling, which have been in effect since 2005 and have been relied on extensively by the entire internet ecosystem. This will be a difficult task. What has changed since 2004 that now makes the blocking or throttling of competitors not a problem? The evidence points strongly in the opposite direction: There is a long history of anticompetitive throttling and blocking — often concealed — that the FCC has had to stop to preserve the health of the internet economy. Moreover, the FCC is acting contrary to public sentiment, which may embolden the judiciary to oppose Chairman Pai. Telecommunications policy does not always attract public attention, but net neutrality does, and polls indicate that 76 percent of Americans support it. The FCC, in short, is on the wrong side of the democratic majority. In our times, the judiciary has increasingly become a majoritarian force. It alone, it seems, can prevent narrow, self-interested factions from getting the government to serve unseemly and even shameful ends. And so it falls to the judiciary to stop this latest travesty.