An appeals court in the Federal Circuit is hearing arguments today from plaintiffs who say that Donald Trump’s FCC Chairman — and former telcoms exec — Ajit Pai violated federal law when he overturned Net Neutrality without considering millions of public comments and expert opinions on the proposal.
The hearing will also consider whether Pai had sufficient evidence to reclassify your ISP as an “information service” provider, like Google or Facebook, and thus exempt it from regulations that require fairness and transparency.
Net neutrality advocates and scholars predicted early on that this line of argument would overturn Pai’s order — Tim Wu, who coined the term “Net Neutrality,” made the case back in November 2017.
The arrogant overreach of Pai might be his downfall: as with all of the Trumpsquad, he thinks that bullshit beats administrative competence, and that servicing donors and low-information voters with windfalls and red meat is a substitute for actually knowing how US law and government work.
One key issue in the case is whether the FCC violated the Administrative Procedure Act, which forbids federal agencies from making “arbitrary and capricious” decisions. The brief from the organizations challenging the FCC alleges that the agency’s about-face on net neutrality, less than three years after approving those rules, was arbitrary and capricious, and ignored evidence that contradicted its preferred decision. For example, the agency refused a request from the National Hispanic Media Coalition, one of the groups bringing the suit, to include informal complaints filed with the FCC related to net neutrality in the record during the public comment process.In its brief, the FCC argued that it had reasonably denied the coalition’s request, saying it was “exceedingly unlikely” that the informal complaints would raise issues not included elsewhere in the proceeding.
Much of the case the FCC made for repealing the rules revolved around the idea that the Obama-era net neutrality rules harmed investment broadband infrastructure, despite evidence, as WIRED has reported, that this wasn’t the case.
This Hearing May Decide the Future of Net Neutrality [Klint Finley/Wired]
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