The FCC's Evidentiary Problem

Abstract

Administrative agencies are responsible for a vast number of the laws that govern us. The fact that these rule makers are unelected and largely unaccountable to elected representatives is in large part why technical procedures for rulemaking were established in the Administrative Procedure Act (the "APA"). But what happens when the agency does not follow the APA or otherwise attempts to circumvent the literal meaning or the spirit of its enacting statute? The usual answer is that the courts will protect against agency self-aggrandizement but judicial intervention is highly limited--often by the court's own self-imposed limitations and legal precedent.

Legal precedent dictates that a court cannot substitute its own judgment for that of the agency — it is a matter of judicial deference to the agency’s congressionally designated expertise. Nor is a court permitted to place any additional procedural requirements on agency rulemaking beyond those imposed by the APA, agency-specific statutes, or an agency’s own regulations. Even though its findings are given a great deal of deference, an agency is not permitted to make decisions that are “arbitrary and capricious” under the law. Unless the court is vigilant in the review of the technical record — insistent that the record meet certain minimum standards — the prohibition on arbitrary and capricious decision making has little meaning.

In particular, this essay discusses the Federal Communication Commission’s (the “FCC”) recent factual record supporting and exercising authority in the Open Internet Order and urges that reviewing courts take a close, and perhaps even a skeptical, look at the Commission’s findings.

Keywords: Open Internet Order, deference, expertise, agency fact-finding, net neutrality, paid prioritization, Section 706

JEL Classification: K23, L50