Did FCC Respect Judge Tatel’s Stated Warnings against Authority Overreach?

Given that the USTelecom v. FCC appellate challenge of the FCC’s Open Internet Order is so important to net neutrality, the FCC’s authority over the Internet, and broadband providers’ future, and given that Judge Tatel’s thinking is so important to the outcome of this case, wouldn’t it be important to better understand Judge Tatel’s personal reasoned public explanation of how courts adjudicate cases just like USTelecom v. FCC?

We can easily hear from Judge Tatel directly and concisely what his legal approach is to cases like U.S. Telecom v. FCC, because he gave an exceptionally relevant, pertinent, general speech on administrative process/rule of law in 2009 entitled: “The Administrative Process and the Rule of Environmental Law” in 2009, which was printed in the Harvard Environmental Law Review. (A hat tip and thank you to Dan Berninger, a formal plaintiff against the FCC in this case, for flagging the exceptionally telling speech on administrative law by Judge Tatel.)     

One can analytically compare Judge Tatel’s speech with his relevant precedent decisions (Comcast v. FCC in 2010, Cellco v. FCC in 2012, and Verizon v. FCC in 2014) to see that Judge Tatel has dutifully applied the framework and thinking he laid out publicly in his administrative overview speech, to his FCC court decisions.

Let me first directly quote the relevant guidance and warnings against agency overreach from Judge Tatel’s 2009 speech, and then directly quote the relevant Judge Tatel questioning of the FCC’s General Counsel Jonathan Sallet in the December 4, oral arguments in USTelecom v. FCC.

Then the reader can judge for herself/himself, if Judge Tatel provides any “tells” about what he thinks about the FCC’s reasoning, process and justification for changing its mind in pursuing a Title II legal strategy over a Section 706 legal strategy in the FCC’s Open Internet Order.  

Direct relevant quotes from Judge Tatel’s 2009 speech:

“… in both Republican and Democratic administrations, I have too often seen agencies failing to display the kind of careful and lawyerly attention one would expect from those required to obey federal statutes and to follow principles of administrative law. In such cases, it looks for all the world like agencies choose their policy first and then later seek to defend its legality. This gets it entirely backwards. It’s backwards because it effectively severs the tie between federal law and administrative policy, thus undermining important democratic and constitutional values. And it’s backwards because whether or not agencies value neutral principles of administrative law, courts do, and they will strike down agency action that violates those principles — whatever the President’s party, however popular the administration, and no matter how advisable the initiative.

My goal this morning is to convince you not only that agencies need to take the fundamental principles of administrative law to heart, but that attention to such principles early in the policymaking process is the only way for agencies to ensure that their policy choices are both constitutionally legitimate and implemented without delay.” …

“… if agency officials see administrative law as a fetter, they’re liable to try to escape — something that will only lead to further trouble in the courts. More fundamentally, such a view would be just plain wrong. Judicial review of administrative action protects the very essence of constitutional democracy and the rule of law. The legislative process set out in the Constitution, with its bicameralism and veto provisions, is designed to make it difficult to alter the legal status quo. By contrast, agencies, staffed by appointment and somewhat insulated from political accountability, can exercise such power with one bureaucratic pen stroke. We tolerate such sweeping authority only because meaningful judicial review ensures that agency actions are consistent with federal law, and that those actions rest not on arbitrary reasons but on the expertise that justified the congressional delegation of authority in the first place. Thus, the two primary elements of judicial review — ensuring that agency action is authorized by law and is neither arbitrary nor capricious — work together to substitute for the constitutional requirements that govern congressional action.”…

“In addition to acting within the boundaries of statutory text, agencies must respect judicial decisions interpreting that text. Judicial review would be toothless if agencies could simply disregard rulings with which they disagree. They can’t, but on occasion they try anyway.” …

“Of course, judicial review involves far more than just ensuring that agencies act within their statutory authority. Under the APA, courts must set aside agency action that is “arbitrary” and “capricious” or “an abuse of discretion.”10 Courts police this line by requiring agencies to give reasoned explanations for their actions. As the Supreme Court explained in the landmark State Farm case,11 the purpose of this reason-giving requirement relates to the rationale for an agency’s very existence. Congress delegates authority to administrative agencies not to authorize any decision at all, but to permit agencies to apply their expertise. The reason-giving requirement allows courts to determine whether agencies have in fact acted on the basis of that expertise.

This rule applies with particular force when agencies change existing policy, as happens quite often during times of transition. Obviously, agencies have authority to move from one permissible position to another, but when doing so they must adequately explain why. In the words of Judge Harold Leventhal, whose seat on the D.C. Circuit I am honored to occupy, “an agency changing its course must supply a reasoned analysis indicating that prior policies . . . are being deliberately changed, not casually ignored.” Judge Leventhal continued, “if an agency glosses over or swerves from prior precedents without discussion it may cross the line from the tolerably terse to the intolerably mute.”12 Although the Supreme Court recently made clear that agencies are held to no higher burden of justification when they change a policy than when they adopt one for the first time, the Court still emphasized that agencies may not “depart from a prior policy sub silentio or simply disregard rules that are still on the books.” …

“To ensure that agencies in fact make decisions based on their expertise, courts hold them to the reasons they articulate at the time they act. Appellate counsel may not supply newly minted rationales after the fact, nor can we.” …

“Any lawyer practicing administrative law well knows these basic requirements. But when reading a set of briefs or listening to oral argument, I sometimes wonder whether the agency consulted its lawyers only after it found itself in court. I hope that’s not the case. The constitutional values that animate our core principles of administrative law require agencies to consider the legality of their policies from the very beginning of the administrative process. Indeed, Julius Genachowski, the new Chair of the Federal Communications Commission, recently told me that he is working to do exactly that at his agency.” …

“This is not just about satisfying the D.C. Circuit. It’s about being responsible public servants. As I have explained, the doctrines of administrative law are not barriers erected by activist judges to prevent agencies from exercising their natural authority to make public policy. Just the opposite. These doctrines exist for a compelling constitutional reason: they keep agencies tethered to Congress and to our representative system of government. They ensure that the complex administrative state of the twenty-first century functions in accordance with the constitutional system established in the eighteenth. In other words, the fundamentals of administrative law really do matter, and they should be understood as engines of administrative policymaking, rather than merely obstacles cluttering the road.” …

Direct quotes from Judge Tatel’s questioning of FCC General Counsel Jonathan Sallet December 4, here (from 35:00-38:45 of the audio file):

“I ask you a non-Brand X, non statutory question which is that, it seems to this court’s Verizon decision, the Commission seemed headed for regulating under 706,  you know, that the Commission even called it, the blue print offered by the DC Circuit  … that’s the Commission’s word -- not mine. And so what, how do you describe the Commission’s reason for abandoning that approach? What’s the policy explanation for that decision? …”

“The question is what after the Verizon decision; after this Verizon’s court’s decision, after the Commission focused its attention on proceeding under 706? What changed its mind?  It couldn’t have been a change in circumstances -- right? The circumstances are all essentially the same. What is the crispest answer? …I couldn’t find it in the order.”

“What drove the Commission to conclude that the authority it had over 706 wasn’t adequate and that it mattered to reclassify? That’s my question. It couldn’t be changed facts; it had to be a different perception of what was happening. What is that?”

In closing, what do you think?

Did Judge Tatel provide any signals in his questioning of the FCC about the adequacy of the FCC’s reasoning, process and justification for “changing its mind” in pursuing a Title II legal strategy over a Section 706 legal strategy in the FCC’s Open Internet Order?

Methinks he did.

His persistent questioning above belies a concern that the FCC may not have provided a reasoned justification in the written Open Internet Order (that he could find) for the FCC’s initial, foundational decision of why the FCC “changed its mind” about asserting Title II authority (over Verizon Section 706 authority) to implement net neutrality, without presenting new facts since Verizon, and when the FCC did not assert it had Title II authority to implement net neutrality in either Comcast v. FCC or Verizon v. FCC.

Simply, Judge Tatel in his 2009 speech made it clear that it is the agency’s responsibility to provide a reasoned justification for its assertion of authority in its public written order, not the court’s.   

Lastly, Judge Tatel’s second to last form of his same question should be the most ominous to the FCC: “What drove the Commission to conclude that the authority it had over 706 wasn’t adequate and that it mattered to reclassify? [bold added for emphasis]

The strong implication here is that Judge Tatel suspects there were outside, unacknowledged, reasons that “drove” the FCC to “change its mind.”

If the Judges focus on that administrative law and due process concern at all, they can easily find non-independent, non-expert reasons in the pleadings and oral arguments for why the FCC majority changed its mind: i.e. comedian John Oliver’s net neutrality comedy sketch that spawned millions of comments to the FCC in favor of Title II; congressional investigations into White House meetings to facilitate political pressure on the FCC to adopt Title II; and then the President’s public call for the FCC to employ a Title II legal strategy.

If Judge Tatel and his fellow judges care about the answer to Judge Tatel’s foundational question of “What drove the Commission to conclude that the authority it had over 706 wasn’t adequate and that it mattered to reclassify” – that appears to be a very problematic line of thinking for the FCC’s overall case.   



Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, a research consultancy for Fortune 500 companies, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests.


FCC Open Internet Order Series

Part 1: The Many Vulnerabilities of an Open Internet [9-24-09]

Part 2: Why FCC proposed net neutrality regs unconstitutional, NPR Online Op-ed [9-24-09]

Part 3: Takeaways from FCC's Proposed Open Internet Regs [10-22-09]

Part 4: How FCC Regulation Would Change the Internet [10-30-09]

Part 5: Is FCC Declaring 'Open Season' on Internet Freedom? [11-17-09]

Part 6: Critical Gaps in FCC’s Proposed Open Internet Regulations [11-30-09]

Part 7: Takeaways from the FCC's Open Internet Further Inquiry [9-2-10]

Part 8: An FCC "Data-Driven" Double Standard? [10-27-10]

Part 9: Election Takeaways for the FCC [11-3-10]

Part 10: Irony of Little Openness in FCC Open Internet Reg-making [11-19-10]

Part 11: FCC Regulating Internet to Prevent Companies from Regulating Internet [11-22-10]

Part 12: Where is the FCC's Legitimacy? [11-22-10]

Part 13: Will FCC Preserve or Change the Internet? [12-17-10]

Part 14: FCC Internet Price Regulation & Micro-management? [12-20-10]

Part 15: FCC Open Internet Decision Take-aways [12-21-10]

Part 16: FCC Defines Broadband Service as "BIAS"-ed [12-22-10]

Part 17: Why FCC's Net Regs Need Administration/Congressional Regulatory Review [1-3-11]

Part 18: Welcome to the FCC-Centric Internet [1-25-11]

Part 19: FCC's Net Regs in Conflict with President's Pledges [1-26-11]

Part 20: Will FCC Respect President's Call for "Least Burdensome" Regulation? [2-3-11]

Part 21: FCC's In Search of Relevance in 706 Report [5-23-11]

Part 22: The FCC's public wireless network blocks lawful Internet traffic [6-13-11]

Part 23: Why FCC Net Neutrality Regs Are So Vulnerable [9-8-11]

Part 24: Why Verizon Wins Appeal of FCC's Net Regs [9-30-11]

Part 25: Supreme Court likely to leash FCC to the law [10-10-12]

Part 26: What Court Data Roaming Decision Means for FCC Open Internet Order [12-4-12]

Part 27: Oops! Crawford’s Model Broadband Nation, Korea, Opposes Net Neutrality [2-26-13]

Part 28: Little Impact on FCC Open Internet Order from SCOTUS Chevron Decision [5-21-13]

Part 29: More Legal Trouble for FCC’s Open Internet Order & Net Neutrality [6-2-13]

Part 30: U.S. Competition Beats EU Regulation in Broadband Race [6-21-13]

Part 31: Defending Google Fiber’s Reasonable Network Management [7-30-13]

Part 32: Capricious Net Neutrality Charges [8-7-13]

Part 33: Why FCC won’t pass Appeals Court’s oral exam [9-2-13]

Part 34: 5 BIG Implications from Court Signals on Net Neutrality – A Special Report [9-13-13]

Part 35: Dial-up Rules for the Broadband Age? My Daily Caller Op-ed [11-6-13]

Part 36: Nattering Net Neutrality Nonsense Over AT&T's Sponsored Data Offering [1-6-14]

Part 37: Is Net Neutrality Trying to Mutate into an Economic Entitlement? [1-12-14]

Part 38: Why Professor Crawford Has Title II Reclassification All Wrong [1-16-14]

Part 39: Title II Reclassification Would Violate President's Executive Order [1-22-14]

Part 40: The Narrowing Net Neutrality Dispute [2-24-14]

Part 41: FCC’s Open Internet Order Do-over – Key Going Forward Takeaways [3-5-14]

Part 43: The Multi-speed Internet is Getting More Faster Speeds [4-28-14]

Part 44: Reality Check on the Electoral Politics of Net Neutrality [5-2-14]

Part 45: The “Aristechracy” Demands Consumers Subsidize Their Net Neutrality Free Lunch [5-8-14]

Part 46: Read AT&T’s Filing that Totally Debunks Title II Reclassification [5-9-14]

Part 47: Statement on FCC Open Internet NPRM [5-15-14]

Part 48: Net Neutrality Rhetoric: “Believe it or not!” [5-16-14]

Part 49: Top Ten Reasons Broadband Internet is not a Public Utility [5-20-14]

Part 50: Top Ten Reasons to Oppose Broadband Utility Regulation [5-28-14]

Part 51: Google’s Title II Utility Regulation Risks – An Open Letter to Investors [6-3-14]

Part 52:  Exposing Netflix’ Biggest Net Neutrality Deceptions [6-5-14]

Part 53: Silicon Valley Naïve on Broadband Regulation (3 min video) [6-15-14]

Part 54: FCC’s Netflix Internet Peering Inquiry – Top Ten Questions [6-17-14]

Part 55: Interconnection is Different for Internet than Railroads or Electricity [6-26-14]

Part 56: Top Ten Failures of FCC Title II Utility Regulation [7-7-14]

Part 57: NetCompetition Statement & Comments on FCC Open Internet Order Remand [7-11-14]

Part 58: MD Rules Uber is a Common Carrier – Will FCC Agree? [8-6-14]

Part 59: Internet Peering Doesn’t Need Fixing – NetComp CommActUpdate Submission [8-11-14]

Part 60: Why is Silicon Valley Rebranding/Redefining Net Neutrality?  [9-2-14]

Part 61: the FCC’s Redefinition of Broadband Competition [9-4-14]

Part 62: NetCompetition Comments to FCC Opposing Title II Utility Regulation of Broadband [9-9-14]

Part 63: De-competition De-competition De-competition [9-14-14]

Part 64: The Forgotten Consumer in the Fast Lane Net Neutrality Debate [9-18-14]

Part 65: FTC Implicitly Urges FCC to Not Reclassify Broadband as a Utility [9-23-14] 

Part 66: Evaluating the Title II Rainbow of Proposals for the FCC to Go Nuclear [9-29-14]

Part 67: Why Waxman’s FCC Internet Utility Regulation Plan Would Be Unlawful [10-5-14]

Part 68: Silicon Valley’s Biggest Internet Mistake [10-15-14]

Part 69: Will the FCC Break the Internet? [10-22-14]

Part 70: Net Neutrality Has Become an Industrial Policy [10-31-14]

Part 71:  The Federal Communications Congress? [11-8-14]

Part 72:  NetCompetition on President’s Call for Title II Utility Regulation [11-10-14]

Part 73:  Top Ten Adjectives to Describe FCC Title II Net Neutrality Regulation [11-11-14]

Part 74:  Top Ten Questions to Ask About Title II Utility Regulation of the Internet [11-20-14]

Part 75:  The Only Legitimate FCC Hybrid Net Neutrality Approach [12-1-14]

Part 76:  Who Pays for Net Neutrality? [12-3-14]

Part 77:  Top Ten Deficiencies in FCC’s Title II Record [12-8-14]

Part 78:  FCC Title II Internet Regulation “Believe it or Not!” [12-17-14]

Part 79:  FCC is Unnecessarily Undermining its Legitimacy [12-18-14]

Part 80:  Will FCC Grant Congress Legislative Deference? [1-2-15] 

Part 81: Internet Association Perfecting Crony Capitalism with its Title II Position [1-13-15]

Part 82: NetCompetition Statement on New FCC Net Neutrality Legislation [1-16-15]

Part 83: NetCompetition on FCC Publicly Sharing its Proposed Open Internet Order [1-23-15]

Part 84: The FCC’s De-Americanization of the Internet [1-25-15]

Part 85: Testing the FCC’s Net Neutrality Political Calculus [1-28-15]

Part 86: Net Neutrality Bait & Switch to Title II [2-3-15]

Part 87: Cleland on NPR KQED Forum Debating EFF Rep on FCC Title II [2-5-15]

Part 88: Google’s FCC Title II Privacy Liability Nightmare [2-6-15]

Part 89: FCC Internet Utility Regulation Is a Really Stupid Idea [2-9-15]

Part 90: The FCC Is Not Neutral [2-17-15]

Part 91: America’s Title II Protectionism Will Hurt Google & Silicon Valley in EU [2-19-15]

Part 92: The FCC’s Predictable Fiasco of Internet Utility Regulation [2-24-15]

Part 93: NetCompetition Statement on FCC Title II Internet Utility Regulation [2-26-15]

Part 94: Why FCC Will Lose in Court on Title II (80%) – A Legal House of Cards -- A White Paper [3-2-15]

Part 95: FCC Title II Protectionism Creates a U.S. Digital Single Market like EU’s [3-11-15]

Part 96: NetCompetition on FCC Title II Internet Order [3-12-15]

Part 97: FCC’s Title II Legal Case is Modern Version of “The Emperor Has No Clothes” [3-16-15]

Part 98: NetCompetition Hill Event: Unnecessary Collateral Damage from FCC’s Title II Internet [3-25-15]

Part 99: Unnecessary Collateral Damage from FCC Title II Internet Regulation [3-26-15]

Part 100: FCC Detours Innovation to Government Slow Lane [4-7-15]

Part 101: Nationalistic Net Neutrality Naiveté [4-10-15]

Part 102: FCC-ville's Kangaroo Court [4-22-15]

Part 103: ObamaNet vs EuroNet -- “Competing” Protectionist Industrial Policies [4-24-15]

Part 104: FCC’s New Do Not Track List Authority [4-27-15]

Part 105: Expect Court to Partially Stay FCC’s Title II Internet Reclassification [5-4-15]

Part 106: Why Court Very Likely Will Stay FCC’s Title II Reclassification [5-14-15]

Part 107: How FCC Hurt Its Title II Anti-Stay Case [5-27-15]

Part 108: Three Big FCC Title II Privacy Questions – My Multichannel News Op-ed [6-9-15]

Part 109: Will FCC Lock-in Net Neutrality Gains in Legislation or Risk All in Court & Ballot Box? [6-12-15]

Part 110: FCC’s “Gotcha” Game of ISP Regulation & Enforcement [6-15-15]

Part 111: FCC Changed “Can-do” Internet into “Can’t-do” Internet [6-23-15]

Part 112: The FCC has Lost Its Credibility Internationally [7-6-15]

Part 113: The FCC’s Title II Trifecta Gamble [7-13-15]

Part 114: The Market’s Ignoring Google’s Many New FCC Common Carrier Liabilities [7-29-15]

Part 115: Unlicensed Spectrum Needs No New FCC Regulation [8-3-15]

Part 116: America’s Upside Down Cyber-Priorities [8-17-15]

Part 117: The FCC Built its Net Neutrality House on Legal Sand [9-14-15]

Part 118: The FCC’s Reasonable Unreasonableness? – A Satire [9-18-15]

Part 119: Google’s Internet Association Hypocritically Begs Digital Protectionism [9-23-15]

Part 120: Court Preview: Activists Expose Net Neutrality’s Biggest Legal Problems [11-29-15]

Part 121:  Did FCC Read Judge Tatel Right in Pursuing Title II over Section 706? [12-7-15]