October 2016

Given the prominence of this venue and Hudson Institute’s legacy of addressing more substantive issues, I thought it would be appropriate to discuss a topic often not addressed by FCC Commissioners: certain tenets of judicial review of FCC items.

Traditionally, many within the legislative and administrative branches of government tend to shy away from discussing particular outcomes of court cases or the collective approach of judicial review. Perhaps hoping that the lack of criticism or comments will prevent a bad outcome in the next case, they avoid discussing altogether or temper their review of instances where the courts have misapplied the law or pursued a line of reasoning devoid of logic or common sense. Having witnessed a number of bad decisions recently, however, I have less compulsion to keep mum about the judicial branch, although I hope the following does so in a relatively respectful way. Additionally, I would argue that the lack of review or analysis of decisions generally deemed out of the mainstream, even by those supportive of a particular outcome, does a disservice to the American people and the court system as a whole. To do this, I will use court review of the Commission’s Net Neutrality rules as a basis for examination. I suggest that the court review of the Commission’s “work” both lacked appropriate rigor necessary for the conclusion reached and established a host of dreadful precedents that will haunt communications policy and administrative law for years to come.