4
I
I agree with the majority that the Commission’s
reclassification of broadband internet as a telecommunications
service may not run afoul of any statutory dictate in the
Telecommunications Act. But in changing its interpretation,
the Commission failed to meet the modest requirements of
Fox Television.
Fox states that an agency switching policy must as
always “show that there are good reasons for the new policy.”
556 U.S. at 515. But in special circumstances more is
required. An “agency need not always provide a more
detailed justification than what would suffice for a new policy
created on a blank slate. [But s]ometimes it must—when, for
example, its new policy rests upon factual findings that
contradict those which underlay its prior policy; or when its
prior policy has engendered serious reliance interests that
must be taken into account.” Id.
Here the Commission justifies its decision on two bases:
changed facts and a new policy judgment. To the extent it
rests on new facts, Fox requires us to examine whether there
is really anything new. Fox also, of course, requires us to
consider reliance interests, regardless of what the Commission
has said about them. Thus novel facts and reliance interests
are plainly at issue. The Commission also argues that its
policy change would be reasonable even if the facts had not
changed. Order ¶ 360 n.993 (“[W]e clarify that, even
assuming, arguendo, that the facts regarding how [broadband]
is offered had not changed, in now applying the Act’s
definitions to these facts, we find that the provision of
[broadband] is best understood as a telecommunications
service, as discussed [elsewhere] . . . and disavow our prior
interpretations to the extent they held otherwise.”). In sum
then, at a minimum, we must inquire whether the Commission
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents