Let me go beyond yesterday’s post to ask a related question. The Commission may well file a petition for rehearing and/or certiorari in yesterday’s net neutrality decision. But if I were the FCC’s general counsel, would I actually want review of that decision? I think the answer is probably no.
Here is how I would analyze it. The opinion interprets the Commission’s section 706 authority broadly. The Court found (and Judge Silberman bemoaned in dissent) that section 706 gives the FCC authority to promote broadband deployment via regulation, and that the FCC can construe such authority to “encompass the power to regulate broadband providers’ economic relationships with edge providers if, in fact, the nature of those relationships influences the rate and extent to which broadband providers develop and expand their services for end users.” As Judge Silberman noted, that is very broad authority. And, as Geoffrey Manne and Berin Szoka from Tech Freedom discussed yesterday in decrying the majority opinion, section 706 applies to “advanced telecommunications,” which covers a wide range of services. With a single opinion, the FCC’s regulatory authority to implement a wide range of regulations has been placed on strong footing. That is a big deal. The FCC has relied on 706 in other Internet-related contexts, such as its order restructuring the universal service fund to support broadband-capable networks, and it will assuredly rely on it more in the future. On the assumption that I as the FCC general counsel would prefer the Commission to have authority (whether or not it chose to exercise it), this interpretation would make me very happy. (I could imagine being a general counsel to an FCC chair who wanted the FCC to have less regulatory authority and therefore might not like this interpretation of section 706, [...]