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The FCC just voted to dismantle net neutrality.

This was expected, and now the decision goes to the DC circuit court then potentially the Supreme Court. If I understand it correctly, this court has twice voted in favor of the net neutrality practices. However, they have also voted in favor of the FCC classifying the ISPs as they see fit. I think these are now contrary opinions.

When this decision reaches the Circuit Court, what points of contention could allow the courts to overturn (or affirm) the FCC's decision to dismantle net neutrality?

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The short form is that the FCC's change can be challenged on procedural grounds, but not on the actual content of the decision.


This article has a couple examples in the section called "Plans for legal action". Specifically:

They can argue that the public record doesn't support the FCC's claim that broadband isn't a telecommunications service, that "throwing away all protections for consumers and innovators for the first time since this issue has been debated is arbitrary and capricious," and that the FCC cannot preempt state net neutrality laws, [consumer advocate Gigi Sohn] said.

The FCC's refusal to do anything about widespread impersonation and fraud in the public comments system, and its refusal to make net neutrality complaints public in a timely fashion, could fuel an argument that the FCC violated the Administrative Procedure Act, she said.

There's other arguments along those lines in the article, but they all boil down to the same type of thing that caused the courts to rule both for and against the FCC in the past: Were all the proper procedures followed to make this rule change?

IANAL, but my impression is that those claims typically fall into a few buckets:

  • The FCC doesn't have the authority to do what it did. (This came up in 2010 and 2014)
  • The FCC didn't follow all the proper procedures in respect to notification, public comments, and the like.
  • The FCC's decision making process used incorrect information, or ignored certain information, or otherwise was misinformed, and thus there was no reason to make a change.

Notably not on the list is "This is a bad change" or anything like that. The rule itself can't be directly challenged, only the process of imposing/changing it.

  • As I understand it, point 3 is actually also a legal argument being made,right? so while it is technically challenging on procedural grounds, I would say that that point is also challenging on the content of the decision (because it wasn't backed up with real facts). – tim Dec 15 '17 at 7:11
  • @tim - Again, I'm not a lawyer or even an armchair-expert, but my impression is that it's the difference between "This was the wrong decision" and "This was an arbitrary and capricious decision". Changing the rules simply for the sake of changing the rules is challengeable - there has to be some justification. And thus if that justification was totally invalid, then there was no reason to make a change. I agree it kindof feels like splitting hairs, though. – Bobson Dec 15 '17 at 12:23
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    @Bobson It seems a lot of rulings involve some hair-splitting, but I think there's merit to differentiating between doing something for a "bad" reason and doing something for "no" reason. Like how a mod here doesn't really have the jurisdiction to weigh in on incorrect comments, but they're encouraged to delete meaningless comments. Regardless, this helped a lot, thanks for the answer! – Lord Farquaad Dec 15 '17 at 14:06

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