Ambiguity and Uncertainty
Steve Goodman has been practicing telecommunications law since 1983, when he began working at the Federal Communications Commission. He now represents a wide variety of clients, including telecommunications equipment manufacturers, satellite service providers and international carriers.
The FCC's Restoring Internet Freedom order is the latest chapter in a long-running saga about what is called net neutrality. Ultimately the courts will decide if the FCC's decision is lawful, insofar as appeals have already been filed by numerous parties. The D.C. Circuit has been assigned the case because of that court's history of hearing the previous net neutrality appeals.
But the court generally provides regulatory agencies with deference, upholding a rulemaking decision if it is reasonable, and only overturning it if it is "arbitrary and capricious." I ask a different question — did the FCC get it right this time?
And while I agree with much of the Restoring Internet Freedom order, when it comes to its ruling on preemption of the states, it seems to fall short of the standards the Commission itself set in that decision.
In overturning the previous Internet Conduct Standard, the Commission criticized that catchall provision as too uncertain. "Because the Internet Conduct Standard is vague, the standard and its implementing factors do not provide carriers with adequate notice of what they are and are not permitted to do."