Laying the Groundwork for a Future Court Battle

(The F.C.C. says such a response was never envisioned by Congress when it adopted the Administrative Procedure Act, or A.P.A., which established many of the ground rules followed by agencies like the F.C.C.)

Congress could not have imagined when it enacted the APA almost 70 years ago that the day would come when nearly four million Americans would exercise their right to comment on a proposed rulemaking. But that is what has happened in this proceeding and it is a good thing. The commission has listened and it has learned. Its expertise has been strengthened. Public input has “improve[d] the quality of agency rulemaking by ensuring that agency regulations will be ‘tested by exposure to diverse public comment.’” There is general consensus in the record on the need for the commission to provide certainty with clear, enforceable rules. There is also general consensus on the need to have such rules. Today the commission, informed by all of those views, makes a decision grounded in the record. The commission has considered the arguments, data, and input provided by the commenters, even if not in agreement with the particulars of this order; that public input has created a robust record, enabling the commission to adopt new rules that are clear and sustainable. –Paragraph 13

The outpouring of public response to the F.C.C.’s initial proposal was extraordinary, especially after John Oliver, the HBO satirist, called on viewers to bombard the agency with critical emails.Here, the F.C.C. is engaging in a kind of regulatory martial art: It is making a virtue of its own apparent unpopularity during that period by citing that criticism as a basis for the need to invoke Title II.Fundamentally, the agency had never entirely eschewed its right to use Title II, which it had held in abeyance. Now that it is calling on Title II, it may need to lay the foundation for a future court battle, and it is doing so by explaining the reasons for the shift here and in some of the subsequent sections.