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FCC Chairman Pai’s Brilliant Title II Net Neutrality Checkmate Strategy

Net neutrality proponents who summarily dismiss any potential for Congress to resolve net neutrality with a legislative compromise, might want to rethink that heroic assumption after closely reading the Pai-FCC’s Title II NPRM.

Apparently, Chairman Pai has figured out a way that could overturn the FCC’s 2015 Open Internet order, and in addition, practically neuter the going-forward precedential value of the D.C. Circuit Court of Appeals’ USTelecom v. FCC decision that upheld the legality of the 2015 FCC order.

Importantly, it is the continuation of the legal validation and legitimacy of the USTelecom v. FCC decision that gives net neutrality proponents their long-term hope that they could restore a Title II net neutrality regime in the U.S. with just a simple FCC majority vote in 2021 or 2025, just like they did in 2015.

But they also know that without the complete Chevron Deference in USTelecom v. FCC, the FCC does not have the legal authority to impose utility regulation on broadband providers.

In a nutshell, FCC Chairman Pai’s brilliant Title II Net Neutrality checkmate strategy is that the Pai-FCC, in plain sight, with unprecedented public transparency and meticulous respect for administrative due process, is going to effectively relitigate point-by-point on the merits, all of the D.C. Court of Appeals’ unwarranted instances of complete Chevron Deference in its supporting precedent USTelecom v. FCC that completely upheld all of the Wheeler-FCC’s many aggressive legal interpretations of its own authority.

In doing the 2017 Title II repeal rulemaking in this particular way, the “checkmate” aspect of this legal approach is that the new FCC order overturning the 2015 Open Internet order will make it very hard for the USTelecom v. FCC precedent to effectively survive beyond this four-year Trump Administration.

This new FCC Title II order will have three years and nine months to be completed and fully appealed through the D.C. Circuit Court of Appeals and the Supreme Court.

If the future Pai-FCC Title II order effectively reverses most relevant legal and other decisions that the Wheeler-FCC made, based on new arguments on the merits and on a new refreshed record, and also effectively challenges all the FCC’s definitional, legal and statutory interpretation decisions to which the Appeals Court gave complete deference, it puts the USTelecom v. FCC ruling in a potential lose-lose situation.

If on one hand, the future Appeals Court panel rules against a new 2017 Title II order by denying this FCC similar complete Chevron Deference that the last FCC enjoyed, the future Appeals Court would be giving the FCC a strong appeal based on why the appeals court completely deferred to the expert judgment of an Obama regulatory agency, but not a Trump regulatory agency on virtually the exact same legal questions and matters.

On the other hand, if the future Appeals court panel upholds the new order on the legal merits without the need to afford the FCC any or less Chevron Deference, this later, stronger precedent on the same legal questions could effectively moot or supersede much or most of the original USTelecom v. FCC precedent enabling Title II authority over broadband providers.

In sum, this apparent brilliant Chairman Pai strategy appears to be as much about effectively reversing or limiting the legal precedential value of the USTelecom v. FCC decision, as it is reversing the actual 2015 Open Internet order.

The fact that both are so vulnerable together to a new FCC Title II order is emblematic of how politically driven, and legally challenged the 2015 FCC order is.

What net neutrality proponents should take away from this analysis is that their conventional wisdom assumption -- that their FCC Open Internet order and upholding precedent are likely to be lasting -- is a very risky assumption.

Reality Check: Net neutrality’s long term future is with Congress and a legislatively-negotiated, compromise solution -- not with the FCC, which looks like it won’t have its Title II broadband authority much longer.

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Scott Cleland served as deputy U.S. coordinator for international communications and information policy in the George H. W. Bush administration. He is president of Precursor LLC, an internetization consultancy for Fortune 500 companies, and chairman of NetCompetition, a pro-competition e-forum supported by broadband interests.

 

  

 

 

 

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