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Judicial Watch • JW amici brief FCC Net Neutrality 498

JW amici brief FCC Net Neutrality 498

JW amici brief FCC Net Neutrality 498

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Tags:Telecom, ECONOMY, Chevron, doctrine, Brand, Major, broadband, network, Neutrality, Net, Amici, FCC, internet, rules, Power, USDA, Commission, Congress, ACLU, Circuit, White House, Supreme Court, states, united, Market, EPA


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Nos. 17-498, 17-499, 17-500, 17-501, 17-502,
17-503, 17-504 THE
Supreme Court the United States
_________
DANIEL BERNINGER, al.,
Petitioners,
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES AMERICA,
Respondents.
_________ Petitions for Writs Certiorari the
United States Court Appeals for the
District Columbia
_________
BRIEF AMICI CURIAE JUDICIAL
WATCH, INC. AND ALLIED EDUCATIONAL
FOUNDATION SUPPORT PETITIONERS
_________
Chris Fedeli
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
cfedeli@judicialwatch.org
Counsel for Amici Curiae
Dated: November 2017
LEGAL PRINTERS
LLC,
Washington 202-747-2400 legalprinters.com
TABLE CONTENTS
TABLE AUTHORITIES ......................................
INTERESTS THE AMICI CURIAE .....................1
SUMMARY ARGUMENT.....................................4
ARGUMENT ...............................................................6
This Case Important Because Internet
Overregulation Will Damocles Sword
Over the U.S. Economy Until Resolved
This Court. ..........................................................6
II.
This Case Important Because This Court
Must Clarify the Major Rules Doctrine
Protect Separation Powers ..........................10
III. This Case Important Because the Court
Must Restore the APA Requirement That
Agencies Provide Genuinely Sound and
Accurate Reasons for Regulatory Actions ........15
CONCLUSION ..........................................................21
TABLE AUTHORITIES
CASES
Chevron U.S.A., Inc. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) .........................5
District Columbia Heller,
554 U.S. 570 (2008).............................................18
Motor Vehicle Mfrs. Ass State Farm
Mut. Ins., 463 U.S. (1983) ..................... 15-17
National Cable Telecomms Ass Brand
Internet Services, 545 U.S. 967 (2005) ...............13
Patel Tex. Dep Licensing Regulation,
469 S.W.3d (Tex. 2015) .................................18
Reno ACLU, 521 U.S. 844 (1997) ............................7
United States Telecom Ass FCC,
825 F.3d 674 (D.C. Cir. 2016) ............. 16, 17,
United States Telecom Assn FCC,
855 F.3d 381 (D.C. Cir. 2017) .........................2,
Utility Air Regulatory Group EPA,
134 Ct. 2427 (2014).....................................5,
Verizon FCC, 740 F.3d 623
(D.C. Cir. 2014) .............................................14,
iii
STATUTES AND REGULATIONS U.S.C. 153(24).............................................. 11-13 U.S.C. 153(53).............................................. 11-13 U.S.C. 201 ..........................................................18 U.S.C. 1302 ........................................................14 C.F.R. 8.9 .............................................................7 C.F.R. 8.11 ...........................................................8
OTHER AUTHORITIES
Cass Sunstein, CHEVRON STEP ZERO, Va.
Rev. 187 (2006) ...................................................14
Chris Fedeli, CARPOOL LANES THE INTERNET:
EFFECTIVE NETWORK MANAGEMENT, Comm. Lawyer (Jul. 2009),
https://www.americanbar.org/content/dam/
aba/publishing/communications_lawyer/
fedeli.authcheckdam.pdf ...............................9,
Christopher Yoo, NETWORK NEUTRALITY
INTERNET INNOVATION?, Regulation,
Vol. 33, No. (Spring 2010),
https://object.cato.org/sites/cato.org/files/serials/
files/regulation/2010/2/regv33n1-6.pdf ...............7
Comments Judicial Watch, Inc. and the Allied
Educational Foundation, Restoring Internet
Freedom, Docket 17-108, FCC (filed July 17,
2017), http://www.judicialwatch.org/wpcontent/uploads/2017/07/FCC-comments-netneutrality.pdf ......................................................18
Gerald Faulhaber, THE ECONOMICS NETWORK
NEUTRALITY, Regulation, Vol. No. (Winter
2011-12), https://object.cato.org/sites/cato.org/
files/serials/files/regulation/2012/6/
v34n4-4.pdf ...........................................................2
Gerald Faulhaber and Christiaan Hogendorn, THE
MARKET STRUCTURE BROADBAND
TELECOMMUNICATIONS, Journal Industrial
Economics, Vol. 48, No. (2000) .........................2
Justin (Gus) Hurwitz, TWO SIDES THE INTERNET
TWO SIDEDNESS: CONSUMER WELFARE
PERSPECTIVE, Perspectives from FSF Scholars,
Vol. No. (Sept. 30, 2013),
www.freestatefoundation.org/images/Two_Sides_
of_the_Internet_s_Two-Sidedness__A_Consumer_Welfare_Perspective_
092713.pdf ..........................................................19
Stuart Brotman, Creating economics-sensitive
zone the FCC, Brookings Institute (May 25,
2017), www.brookings.edu/blog/techtank/
2017/05/25/creating-an-economics-sensitivezone-at-the-fcc.....................................................16
INTERESTS THE AMICI CURIAE
Judicial Watch, Inc. Judicial Watch nonpartisan educational foundation that seeks
promote transparency, integrity, and accountability government and fidelity the rule law. Judicial
Watch regularly files amicus curiae briefs advance
its public interest mission and has appeared
amicus curiae this Court many occasions.
The Allied Educational Foundation AEF
nonprofit charitable and educational foundation
based Englewood, New Jersey. Founded 1964,
AEF dedicated promoting education diverse
areas study. AEF regularly files amicus curiae
briefs advance its purpose and has appeared
amicus curiae this Court many occasions.
Amici are broadly concerned that the U.S. Court
Appeals for the Circuit gave administrative
agency like the Federal Communications Commission
extended future powers destroy enormous amounts national wealth reclassifying and regulating
broadband internet service. long the FCC has
this power, will prone abuse with dangerous
and politically-corrupted decisions like the one under
Amici state that each the Petitioners and Respondents have
given their consent writing the filing this amicus brief. counsel for party this case authored this brief whole part, and person entity other than amici and their
counsel made monetary contribution intended fund the
preparation and submission this brief.
appeal.2 The result will constant risk damage major portion the American economy and
simultaneous increase wasteful rent-seeking
behavior and agency lobbying.3
Amici are additionally concerned that unless this
Court acts rein unchecked administrative
state, federal separation powers doctrine will
badly undermined. The FCC reclassification power
blessed the Circuit represents the expansion
Chevron doctrine beyond anything ever intended
this Court. Accordingly, the potential harm even
greater than the risk the vibrant sector the
economy that the internet and the continued
growth and expansion this valued platform for civic
communication. The harm that the Circuit has United States Telecom Assn FCC, 855 F.3d 381, 409-411
(D.C. Cir. 2017) (reh banc denied) (Brown, J., dissenting) Why, the verge announcing new Open Internet Order
2014 that both implemented net neutrality principles and
preserved broadband Internet access information
service, would the FCC instead reclassify broadband Internet
access public utility?... [T]he President intervention into
the FCC deliberations was outcome determinative
(internal citations and punctuation omitted).
Gerald Faulhaber, THE ECONOMICS NETWORK
NEUTRALITY, Regulation, Vol. No. (Winter 2011-2012), When regulators are open for business, firms understand that
pleasing manipulating the regulators far more important
than innovating, investing, and pleasing customers.
precisely because regulators have not been open for business
the Internet that has been such innovative and successful
enterprise. (quoting Gerald Faulhaber and Christiaan
Hogendorn, THE MARKET STRUCTURE BROADBAND
TELECOMMUNICATIONS, Journal Industrial Economics, Vol. 48,
No. (2000)), available https://object.cato.org/sites/
cato.org/files/serials/files/regulation/2012/6/v34n4-4.pdf.
undermined the separation powers outlined the
first three articles the Constitution, which require
Congress make laws and establish policy with
executive enforcement and judicial review. Chevron
has now expanded the point where the executive
branch makes policy, the judiciary approves rejects
that policy, while Congress happily abdicates its
authority and avoids all resulting political
accountability. This exactly the opposite what
the framers intended, greatly reduces the power the most democratically-accountable branch
government and the only branch designed foster
genuine political compromise.
With all laws decided executive with little
need compromise and passed judiciary
where compromise inimical its very nature, the
nation deprived lawmaking deliberative
body that can only act when negotiates and builds
consensus between the many diverse stakeholders
any public debate.
Without Congressional
compromise, the nation further deprived 535
members Congress who can return their states
and districts following compromise legislation and
explain their constituents why the law was the
best interest the nation. Instead, members
Congress can endlessly avoid accountability, and
instead may pass the buck and blame the nation
problems out-of-control Presidents out-ofcontrol federal courts.
The result this blurring the separation
powers that political compromise ever
reached, various factions just become further
entrenched into increasingly hostile positions.
abandoning our constitutional system government, are left with system where parties compete
aggressively for the only political prize remaining
the White House and then take turns maximizing
their success capturing that branch
implementing many overreaching executive
actions possible. Once the opposition party retakes
the Presidency, the new party undoes all the
executive actions the previous administration and
the cycle repeats itself. This turns the federal
government into mere battlefield endless
policy war attrition. This Court must rein
Chevron protect the founders intent creating
three separate branches government, forcing
Congress back into its proper role the deliberative
legislative branch which decides the nation major
rules and policies through negotiation and
compromise.
For these and other reasons set forth below, amici
urge the Court grant the pending petition for
certiorari.
SUMMARY ARGUMENT
The Circuit grant unchecked power the
FCC heavily regulate the broadband internet
industry whenever politically expedient
extremely dangerous, and grant certiorari
important for multiple reasons. First, this decision
risks enormous harm the future growth the
internet, which turn constitutes massive risk
the U.S. economy. Beyond that risk, this precedent
must overturned prevent the limitless expansion the administrative state the point where the
separation powers outlined the first three
articles the Constitution rendered meaningless.
This Court should reverse the illegal Circuit
decision and properly explain Chevron limits this
case. Chevron U.S.A., Inc. Natural Resources
Defense
Council,
Inc., 467 U.S. 837
(1984).
Specifically, this Court should find the FCCs Order
violated either the Major Rules Doctrine Utility Air
Group the arbitrary and capricious standard the
Administrative Procedure Act explained State
Farm. Utility Air Regulatory Group. EPA, 134
Ct. 2427, 2444 (2014); Motor Vehicle Mfrs. Ass
State Farm Mut. Ins., 463 U.S. 29, (1983). This
case especially important because the FCC Order
violated both doctrines, and the Circuit
improperly ignored both. result, the judiciary
blessing Congress evasion its constitutional
responsibility make laws. This will lead the
executive branch continue usurp this authority
with bolder and more inventive interpretations
decades-old statutes until eventually all real
lawmaking power will lie the executive and the
judiciary. This inherently unstable situation
that poses great danger the American system
governance.
ARGUMENT
This Case Important Because Internet
Overregulation Will Damocles Sword
Over the U.S. Economy Until Resolved
This Court
The internet accounts for substantial portion
the U.S. economy, and even larger percentage
the growth the economy over the last years.
the Circuit decision stands, the FCC will
continue have absolute power untold damage the U.S. economy whenever the political winds
shift. Even the FCC repeals the Order question
later this year, the risk these dangerous
regulations returning once the White House changes
hands again too great for this Court ignore. The
prospect these harmful rules returning amounts Sword Damocles hanging over the U.S. economy.
This Court should grant certiorari end this
uncertainty.
The modern internet economy does not even
closely resemble that the telephone network, which
was never used for both one-to-one communications
and mass media communications this scale. This
makes the FCC reinterpretation the statute even
more unreasonable. The economics networks that
primarily serve one-to-one purpose and those that
also serve one-to-many model are dramatically
different.4 Indeed, the internet variable-use nature what makes such priceless economic asset,
services and applications can start out with small
audience and then can scale become global. This
also what makes the internet invaluable civic life the most participatory form mass speech yet
developed. Reno ACLU, 521 U.S. 844, 863 (1997).
Any regulations for the internet must therefore
flexible enough accommodate all its distinct uses
without damaging any part it.
The Circuit decision grants the FCC massive
powers intervention the broadband internet
economy which were never blessed Congress.
Consider just two the regulations the FCC adopted its Order with its reclassification authority.
First, the FCC flatly outlawed the market for internet
traffic prioritization, which prevents broadband
providers from recovering the costs network
expansion from those web services putting the
greatest demand the network.5 C.F.R. 8.9.
This ban will result less capital for network
capacity expansion, which means slower network
See Christopher Yoo, NETWORK NEUTRALITY INTERNET
INNOVATION?, Regulation, Vol. 33, No. 28, (Spring 2010)
(discussing dissimilar network economic effects telephone
networks and broadcast television networks), available
https://object.cato.org/sites/cato.org/files/serials/files/regulation/
2010/2/regv33n1-6.pdf.
Id., [P]reventing network providers from exercising
pricing flexibility would simply increase the proportion the
network costs that providers must recover directly from end
users. This simultaneously raises the prices paid consumers
and decreases the likelihood that the capital improvements will
ever built.
expansions, which turn will result longer wait
times before the next innovative, bandwidthintensive edge application can reach market scale.
Outlawing market traffic delivery speed also
kills incentives for websites and application providers the edge the network develop further
technological innovations their own:
[P]ricing for extra speed would incentivize
edge providers innovate technologies
that enable their material travel faster (or
reduce latency jitter) even the absence
improved ISP technology.... Thus paid
prioritization would yield finely tuned
incentives for innovation exactly where
needed relieve network congestion. These
innovations could improve the experience for
users, driving demand and therefore
investment.
United States Telecom Ass FCC, 825 F.3d 674, 763
(D.C. Cir. 2016) (Williams, J., dissenting). Far from
preserving openness and facilitating increased
innovation and investment, the FCC prioritization
ban will therefore send the internet into downward
spiral.
Similarly, the FCC internet conduct rule chills
broadband providers ability adopt new network
management policies, which virtually ensures that
websites and application providers will use network
bandwidth less efficiently. C.F.R. 8.11. This rule
gives the FCC flexible standard judge what and not reasonable network management case-bycase basis. Giving this unchecked power the FCC
essentially means innovation network operators
will grind halt, the internet becomes mother
may economy the center core the network.
This turn means bandwidth efficiencies are created
more slowly, and therefore websites and services
the edge the network must wait longer before
capitalizing increased bandwidth availability
reach customers.
Placing prior restraints
broadband providers technological innovation will
also dramatically reduce incentives for the edge
providers themselves develop technologies for
efficient transmission data.6 Again, the FCC
overbearing rules will drastically slow the internet
historic cycles innovation and investment.
Preserving the cycle internet growth and
investment requires innovation both the edge and
the core the network. the core remains
unchanging
public
utility
where
network
management innovations are subject federal
approval, the edge should not bother developing the
next generation more bandwidth-intensive
applications because the core will never able
transmit them effectively nor will broadband
Chris Fedeli, CARPOOL LANES THE INTERNET: EFFECTIVE
NETWORK MANAGEMENT, Comm. Lawyer 31-32 (Jul.
2009) allowing such practices, network operators can
increase speed traffic delivery based how much effort
the traffic itself... makes ease congestion through steps they
can take little cost. This highly efficient network
management
principle
https://www.americanbar.org/
content/dam/aba/publishing/communications_lawyer/fedeli.
authcheckdam.pdf.
providers have much incentive make the needed
improvements.
Accordingly, the Circuit has effectively
granted the FCC the power freeze major portion the U.S. economy and declare zero-growth zone
whenever the populist winds demand it. This Court
should not hesitate now reverse the Circuit
infelicitous decision and restore certainty that the
internet economy will continue experience healthy
growth and expansion.
II.
This Case Important Because This Court
Must Clarify the Major Rules Doctrine
Protect Separation Powers urgently important for this Court accept
review and clarify the Major Rules Doctrine now,
rather than some future time. recent years, the
federal government has strayed further towards
making the executive branch the primary seat
policymaking rather than Congress, diverging from
the intent the founders. the Court allows
regulatory agencies assume such broad powers
change the law without explicit Congressional
directive the FCC did with the Circuit
blessing then Congress will free abdicate its
legislative responsibilities favor rule
executive. The harms the nation from this sub rosa
realignment federal political power are potentially
enormous. When the most democratic and popularly
accountable branch government permitted
cede its responsibility make policy the executive
branch, the opportunities for compromise and lasting
deal-making federal lawmaking are dramatically
reduced. Instead, the Congressional system designed the founders will replaced with executive
system where the political parties endlessly vie for
the White House and, once successful, strive only
undo and reverse all the executive regulatory
legislation enacted the predecessor party. This
Major Rules case therefore presents the Court with
unique opportunity put end Congress recent
neglect its constitutional duties. Congress wants agencies make far reaching
and sweeping decisions that can jolt massive
segments the economy, must say particularly
clearly the statute. this case, Congress had
wanted give the FCC the power change
regulatory treatment internet services back and
forth from light heavy regulation depending
what the FCC thought was good for the market
consumers any moment, Congress would have
spelled out the FCC authority so. For instance,
Congress could have written market-based
consumer-based definitions different kinds
communications services into the statute instead
the technology and service-based definitions Congress
did write. U.S.C. 153(24), 153(53). The former
kinds definitions will necessarily fluctuate
external factors, when markets change when prices
rise and competition disappears. But the latter kinds definitions are intrinsic the service itself, based the technology and the providers offering the
communications service regardless external
factors. Accordingly, this case falls outside Chevron
doctrine and within the ambit the Major Rules
Doctrine explained Utility Air Regulatory Group
EPA, 134 Ct. 2427, 2444 (2014).
The Circuit was wrong affirm the FCC
2015 decision reclassify broadband internet
telecommunications
service.
The
FCC
reclassification flies the face the barest common
sense when one considers that Congress created two
statutory regulatory categories one for telephone
communications networks, and one for computer
communications networks and never gave the FCC
the power treat one like the other. U.S.C.
153(24), 153(53).
Functionally, this case
different than the U.S. Department Agriculture
decided reclassify fish beef under the
relevant statutes because the cattle laws happen
more suitable how the USDA wishes regulate the
fisheries industry.
Importantly, the Circuit upheld the FCC
power not just interpret ambiguous statutory
phrases but rewrite the Communications Act
ways that are inconsistent with fact, would
overthrow the Act structure and design. Utility
Air Group, 134 Ct. 2442. The FCC claimed
power unilaterally implement decision vast
economic and political significance affecting
significant portion the American economy. Id.
Utility Air Group, this Court held that agencies may
only issue such orders when Congress explicitly
delegated that kind broad and expansive power agency statute. Id.
The Major Rules Doctrine necessarily limits the
application Chevron the instant case. One
might tempted say turning Internet access into public utility obviously major question deep
economic and political significance any other
conclusion would fail the straight-face test. United
States Telecom Assn FCC, 855 F.3d 381, 402
(Brown, J., dissenting). Importantly, the Brand
court never applied the Major Rules Doctrine because that 2005 case the FCC had not imposed
burdensome new regulations entire industry,
but rather was announcing its refusal impose such
regulations. National Cable Telecomms Ass
Brand Internet Services, 545 U.S. 967 (2005).
Judge Kavanaugh explained, the Brand Court did
not have and did not consider whether
classifying Internet service telecommunications
service and imposing common-carrier regulation
the Internet would consistent with the major rules
doctrine. United States Telecom Assn FCC, 855
F.3d 381, 425 (D.C. Cir. 2017) (reh banc denied)
(Kavanaugh, J., dissenting).
Despite the Circuit majority reasoning,
not especially difficult reconcile the Major Rules
Doctrine with Brand this Court aware, the
Brand decision applied Chevron the FCC 2002
interpretation Sections 153(24) and (53) the
Communications Act. U.S.C. 153(24), 153(53)
(providing
technology
based
definitions
telecommunications
services
and information
services). Even assume that the Brand
precedent gives the FCC the power reinterpret the
Communications Act that broadband internet
could either information service
telecommunications service, the case bar would
still different from Brand
Specifically, the current Court would still need
apply the Major Rules Doctrine separately from (or
addition to) the traditional two steps Chevron. The
Major Rules Doctrine has been referred
Chevron Step Zero illustrate how should
applied.7 Apart from the usual ambiguous statute,
permissible interpretation analysis, the Court must
consider whether the interpretation will amount
major economic reordering entire industry, and so, whether Congress deliberately vested such
massive power the administrative agency.
Since the FCC authority adopt non-common
carrier, light-touch net neutrality regulations had
previously been upheld, the only reason for its Title
reclassification was impose extreme command-andcontrol economic regulations entire industry.
See Verizon FCC, 740 F.3d 623, 649, 651-658 (D.C.
Cir. 2014) (upholding, under Chevron, the FCC
authority lightly regulate information services
under U.S.C. 1302). The massive economic
impact without clear Congressional directive what
runs afoul the Major Rules Doctrine not the
simple statutory reinterpretation, which least
hypothetically could lawful under Chevron and
Brand
Cass Sunstein, CHEVRON STEP ZERO, Va. Rev. 187, 236
(2006).
III. This Case Important Because the Court
Must Restore the APA Requirement That
Agencies Provide Genuinely Sound and
Accurate Reasons for Regulatory Actions
The Court should also accept review rule the
APA issues here for the same reason Major Rules
review needed: properly protect the first three
articles the Constitution and restore the balance
power between the branches government. the
arbitrary and capricious standard remains
toothless that can satisfied with any mealymouthed excuse agency gives, Congress can avoid
legislating and accountability indefinitely. Combined
with the over-expansive Chevron doctrine, the
administrative state overreach will therefore
continue erode the powers once reserved for
Congress. This Court should not continue allow
this expansion executive power.
Agency action arbitrary and capricious the
agency has entirely failed consider important
aspect the problem, offered explanation for its
decision that runs counter the evidence before the
agency, implausible that could not
ascribed difference view the product
agency expertise. Motor Vehicle Mfrs. Ass State
Farm Mut. Ins., 463 U.S. 29, (1983). The FCC
2015 reinterpretation Section 153 the
Communications Act was arbitrary not because
differed from the FCC 2003 interpretation, but
because the FCC made the decision regulate more
heavily without offering explanation consistent
with the evidence before the agency:
[T]he Commission relied explanations
contrary the record before and failed
consider issues critical its conclusion
the extent that the Commission justified the
switch the basis new policy perceptions,
its explanation the policy watery thin and
self-contradictory. Having set forth the notion
that paid prioritization poses threat
broadband deployment the Commission
then fails respond criticisms and
alternatives proposed the record, clear
violation the demands State Farm, 463
U.S. 43, 51.
United States Telecom Ass FCC, 825 F.3d 674, 762
(D.C. Cir. 2016) (Williams, J., dissenting).
The FCC either ignored casually distinguished
reams economic evidence grounded accepted
theory that outlawing market transactions and
business practices will deprive the market growth,
hurting both the internet and consumers. This was
not mere difference opinion; the 2015 order
amounts economics denialism the
Commission.8 Furthermore, this not case where
the FCC stated was willingly sacrificing innovation
and growth the internet exchange for guaranteed
See Stuart Brotman, Creating economics-sensitive zone the FCC, Brookings Institute (May 25, 2017) (the FCCs
former chief economist described the Title net neutrality
rulemaking one where fair amount the economics was
wrong, unsupported, irrelevant. available www.
brookings.edu/blog/techtank/2017/05/25/creating-an-economicssensitive-zone-at-the-fcc.
equality internet access and cost. Such decision
would unwise political choice amici view,
but explanation would least square with
the evidence the record and therefore satisfy the
APA.
Indeed, there may occasions where
destroying national wealth legitimate political
choice done the service some other important
goal such paying for necessary government
services, reducing wealth disparities avert social
unrest. United States Telecom Ass FCC, 825 F.3d
674, 766 (D.C. Cir. 2016) (Williams, J., dissenting) [P]erhaps the Commission drawn its present
stance because enables revel populist
rhetorical flourishes The APA requirement
that agencies identify such reasons forthrightly when
they are the actual reasons for agency action.
Instead, the FCC waived away established economic
evidence and theory with its own set alternative
facts deny that its decision would have any impact growth the internet economy. There point which such willful agency ignorance field
knowledge crosses the line between difference
opinion supported reason and arbitrary action
pursuit unstated agenda. The FCC order
crosses this line.
Additionally, this Court further explained State
Farm that the agency nevertheless must examine
the relevant data and articulate satisfactory
explanation for its action, which includes showing
rational connection between facts and judgment...
pass muster under the arbitrary and capricious
standard. 463 U.S. 56. not this Court role accept whatever rationale the FCC offered for its
decision uncritically, the arbitrary and capricious
standard were mere rubber-stamp. Rather, this
Court must examine the FCC stated reasons and,
they not adequately account for the evidence, ask there were other unstated reasons for the decision.
See e.g. District Columbia Heller, 554 U.S. 570,
628, fn. (2008) simple rational basis review
meaningless only excludes pure irrationality); see
also Patel Tex. Dep Licensing Regulation, 469
S.W.3d 69, 112 (Tex. 2015) (Willett, J., concurring)
(judges must conduct genuine search for truth
asking What government actually to? the
agency reason proffered not the actual reason for
the decision, the agency has avoided accountability
and the decision therefore unlawfully arbitrary and
capricious under the APA.
The FCC stated goal protecting and
promoting the open internet does not adequately
account for its choice reclassify broadband under
Title (47 U.S.C. 201 seq.) and impose heavyhanded public utility regulations when could have
protected openness with light-touch, Title
information service regulations. See Verizon FCC,
740 F.3d 623, 649, 651-658 (D.C. Cir. 2014).9 The
economic evidence and analysis the record
demonstrated
quite
persuasively
that
the
prohibitions market transactions and business
See also Comments Judicial Watch and Allied Educational
Foundation, Restoring Internet Freedom, Docket 17108, FCC 17-60, pp. 11-16 (filed July 17, 2017) (providing
examples light-touch net neutrality regulations that protect
internet openness without imposing burdensome economic
restrictions), available http://www.judicialwatch.org/wpcontent/uploads/2017/07/FCC-comments-net-neutrality.pdf.
practices would gradually destroy billions dollars
value.
For instance, adopting the paid
prioritization ban, the FCC failed adequately
account for evidence the importance two-sided
market for broadband internet, which draws vastly
more capital into the broadband economy through
ordinary market pressures and self-interested
behavior.10 Furthermore, the Commission did not
adequately account for evidence that the clear
economic harm this regulation could have been
mitigated applied more carefully:
[T]he Commission adopted flat prohibition
[on prioritization], paying attention
circumstances under which specific varieties paid prioritization would (again, assuming
market power) adversely favorably affect
the value the internet all users. the
absence such evaluation, the Order
scathing terms about paid prioritization fall
flat.
United States Telecom Ass FCC, 825 F.3d 674, 766
(D.C. Cir. 2016) (Williams, J., dissenting). Similarly,
the consumer protection rationale for the FCC Justin (Gus) Hurwitz, TWO SIDES THE INTERNET TWOSIDEDNESS: CONSUMER WELFARE PERSPECTIVE, Perspectives
from FSF Scholars, Vol. No. (Sept. 30, 2013) [W]hy
care market two-sided? Because most two-sided
markets, the purveyor the intermediary goods that the two
sides are consuming sets different prices for each side the
market order maximize the value the market.
www.freestatefoundation.org/images/Two_Sides_of_the_Interne
t_s_Two-Sidedness_-_A_Consumer_Welfare_Perspective_
092713.pdf.
prioritization ban fails square with the evidence
that two-sided market can serve even better
price control system than federal regulations.11
Additionally, imposing the internet conduct
regulation, the FCC reasoning does not account for
the evidence that preventing broadband providers
from adopting network management innovations will
inevitably lead inefficient bandwidth use. This will turn delay foreclose the development more
bandwidth-intensive applications and content
delivery innovations, slowing growth major
segment the economy.12
The FCC never owned the fact that was
sacrificing all the above for internet openness, nor
the fact that could have protected openness without
sacrificing innovation and investment. The Court
should now restate the law and prohibit agencies from
unaccountable
and
opaque
decisionmaking.
Permitting this kind agency action only serves Id. ...the Open Internet rules, preventing Verizon from
charging firms like Google and Netflix for access its network,
prevent this market from behaving like two-sided market....
[A]llowing broadband ISPs charge content providers can
benefit consumers and increase infrastructure investment.
Chris Fedeli, CARPOOL LANES THE INTERNET: EFFECTIVE
NETWORK MANAGEMENT, Comm. Lawyer (Jul. 2009) The Internet could evolve require stricter technical protocols
for levels integrity and performance needed for delivery
high speed and real-time applications like online gaming... [T]he
FCC rules should allow network operators accommodate the
kinds functions next generation Internet users may want.
https://www.americanbar.org/content/dam/aba/publishing/com
munications_lawyer/fedeli.authcheckdam.pdf.
further insulate Congress from accountability for
national policy while dangerously expanding the
policymaking powers the executive branch.
CONCLUSION
For the foregoing reasons, amici respectfully
request that the Court grant the petitions for writs
certiorari.
Respectfully submitted,
Chris Fedeli
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
cfedeli@judicialwatch.org
Counsel for Amici Curiae
November 2017