//  1/12/18  //  Commentary

I noted earlier that the success of the challenges to the FCC’s net neutrality order decision will turn, in part, on whether courts defer to the agency’s determination that internet access is best classified as an “information service” (rather than, say, a “telecommunications service”).

We also know that “Chevron deference is not warranted where the regulation is ‘procedurally defective.’”

What does this have to do with the FCC’s net neutrality decision? There’s no obvious procedural flaw in, say, the amount of time the FCC allowed for comments and replies. But there are serious questions about the integrity of the record upon which the FCC based its decision. Somewhere on the order of over one million comments were either misattributed to people, or attributed to fictional identities, or otherwise faked. Indeed, it seems that someone impersonated Sen. Merkley in a comment supporting the FCC’s action. Commissioner Rosenworcel has made an issue of this. But to little avail: The FCC does not appear to have investigated the integrity of its own record (or, if it has, it hasn’t revealed the results of that investigation), and, moreover, it has declined to assist state-led investigations into possible identity crimes associated with the #fakecomments.

So is an agency decision based upon a record containing a substantial number of falsified comments “procedurally defective”? I’m venturing beyond my core expertise, and I don’t think there’s a clear answer. It is hard to say that an agency can reach a reasoned conclusion from a corrupted record. But to so hold might create incentives to undermine agency action by sparking large-scale campaigns, like the one here, aimed at undermining the integrity of an agency’s record.

Perhaps the answer, then, lies in the adequacy of an agency’s response to the misinformation campaign. Here, the Commission was apparently aware of the faked comments and falsified identities: What, if anything, did the FCC do to filter the bad comments from the good? Were those efforts adequate to cure any defect in the record, and, hence, in its conclusions? If not—if the agency’s response was inadequate—then perhaps courts should decline to defer to the agency’s decision. After all, it is a “basic procedural requirement of administrative rulemaking is that an agency must give adequate reasons for its decisions. The agency ‘must examine the relevant data and articulate a satisfactory explanation for its action.’” But faced with data suggesting that its record was corrupted, the FCC has apparently done very little, except to note that those comments “in no way impeded” the Commission’s deliberation. But the FCC has not said clearly why that is so. And, in the end, the FCC relies upon an uncorrected record to support its order undoing net neutrality protections. That might matter.

Compulsion and Complicity

7/12/18  //  In-Depth Analysis

By Catherine Fisk: The conservative majority's deregulatory use of the First Amendment will weaken it as a safeguard against tyranny

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SCOTUS Goes Online

7/12/18  //  In-Depth Analysis

By John Paul Schnapper-Casteras: This might be the year that the Supreme Court begins to meaningfully grapple with the constitutional implications of emerging technologies.

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Taking Texas Seriously: The Accidental Constitutional Case Against The TCJA

7/11/18  //  Commentary

By Mitch Johnston: If the mandate repeal is unconstitutional, then, based on the severability arguments advanced by the states, shouldn’t the entire Tax Cuts and Jobs Act (TCJA) be struck down with it?

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