A Legal House of Cards: Why the FCC Will Lose in Court on Title II Internet (80%)

The Federal Communication Commission’s Open Internet Order, which reclassified the commercial Internet as a Title II utility, is very likely (80%) in the end, to be overturned in court. The FCC’s legal theory and many core assumptions are so aggressive, it’s clear that the FCC expects, and needs, continual and maximal deference from the court to prevail. The FCC also requires the courts to view the FCC’s most aggressive assertion of unbounded authority ever, as a mere administrative interpretation of ambiguous law, and not a political bypass of Congress and the 1996 Telecom Act.

1. FCC’s decision is not an administrative interpretation of law but a political bypass of Congress.
2. FCC is not Congress and has no legislative authority to “modernize” communications law.
3. FCC’s legal theory is a Rube Goldberg contrivance to manufacture legal authority.
4. FCC’s legal theory recognizes no statutory bounds on FCC authority or jurisdiction.
5. FCC reclassification assumes it can overrule legally‐settled definitions and findings of fact.
6. FCC asserts authority for an illegal goal; compel zero‐price for service with no compensation.
7. FCC is arbitrary & capricious ignoring large reliance interests & need for proportionality.
8. FCC’s legal forbearance theory is inherently contradictory and thus arbitrary.

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