Net neutrality and deference to the FCC

Please note that this post is from 2010. Evaluate with care and in light of later events.

A few days ago the D.C. Circuit, in a 3-0 decision, held that the FCC could not require Comcast, or other broadband providers, to follow principles of network neutrality under their current justification. The decision would allow Comcast and other ISPs to return to “blocking or slowing certain services” or, alternatively, in the words of Senator Orrin Hatch, give them “an actual incentive to expand capacity.” Although the last argument is ridiculous based on the facts, the first is a real concern given Comcast’s previous statements and activities.

Marvin Ammori, reacting to the ruling denying the FCC authority to forbid Comcast’s actions, writes:

At least, that’s the effect if the Obama FCC continues to follow the legal framework adopted under the Bush administration–a framework that requires the FCC to play football with a tennis racket, a framework for authority that the DC Circuit just beat to death, shot, and then drowned.

via How I Lost the Big One, Bigtime

He goes on to suggest that the FCC could (and may well) simply reclassify ISPs like Comcast under a different administrative heading, one that gives the FCC greater power and a different justification for regulation.

Most interesting to me from a legal standpoint is the hint that perhaps courts are backing away from the kind of administrative deference they’ve shown previously (1984’s Chevron v. NRDC is the key case on this topic). This particular instance may be frustrating for netizens, but I think a move away from too much deference to agencies is a good thing.