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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.
The FCC’s case also has so many serious conceptually inter-dependent flaws that it is like a fragile house-of-cards, built of flimsy definitional, precedential, and factual assumptions. This means opponents only need to knock down one of the FCC’s supporting “cards” for the entire house of cards to collapse. In contrast, the FCC needs every card in its house of cards to withstand scrutiny and remain standing.
Simply the FCC’s case is politically strong, but legally weak.
As an analyst, one does not have to see the order’s final language to predict with confidence that the FCC’s case faces serious legal trouble overall, because the eight big conceptual legal problems spotlighted here are not dependent on the details of the FCC’s order. After two FCC-failed court reviews in 2010 in Comcast v. FCC and 2014 in Verizon v. FCC, and decades of multiple Title II definitional and factual precedents completely contrary to the FCC’s current legal theory, the legal field-of-play is much more clear than usual or most appreciate.
Those who take the time to inform themselves of the FCC’s obvious and daunting legal problems will come away very-skeptical of the FCC’s chances of success after all appeals are exhausted.
I will revisit this Part I analysis to confirm the outcome’s likely probability, once the FCC’s legal case is known in better detail when the order is made public. However, absent a legal secret “FCC magic wand” yet unknown in this well-trod, high-scrutiny, eighty-year, Title II legal space, the general outcome probability 80% for the FCC to ultimately lose in court — is unlikely to change much.
Link to full White Paper: http://www.netcompetition.org/blog/why-fcc-will-lose-title-ii-internet-in-court