5
gave reasonable attention to petitioners’ claims of reliance
interests, how much the asserted factual change amounts to,
and finally whether the Commission has met the minimal
burden of showing “that there are good reasons for the new
policy.” I address them in that order.
(a) Reliance. The Order deals with reliance interests
summarily, noting, “As a factual matter, the regulatory status
of broadband internet access service appears to have, at most,
an indirect effect (along with many other factors) on
investment.” Order ¶ 360. The Commission’s support for the
conclusion is weak and its pronouncement superficial.
To the extent that the Commission’s judgment relies on
the presence of “many other factors,” it relies on an
irrelevance. The proposition that “many other factors” affect
investment is a truism. In a complex economy there will be
few phenomena that are entirely driven by a single variable.
Investment in broadband obviously reflects such matters as
market saturation, the cost of capital, obsolescence,
technological innovation, and a host of macroeconomic
variables. Put more generally, the presence of causal factors
X and Y doesn’t show the irrelevance of factor Z. The
significance of these factors tells us little about how much the
relatively permissive regime that has hitherto applied accounts
for the current robust broadband infrastructure. At least in
general terms, the Commission elsewhere seems to answer
that the old regime accounts for much. In an introductory
paragraph it commends “the ‘light-touch’ regulatory
framework that has facilitated the tremendous investment and
innovation on the Internet.” Order ¶ 5.
For its factual support, the Commission essentially lists
several anecdotes about what happened to stock prices and
what corporate executives said about investment in response
to Commission proposals for regulatory change. For example,
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