June 21, 2012
The Supreme Court’s 8-0 decision on FCC vs. Fox, vacated the FCC’s indecency penalties against Fox and ABC for “fleeting expletives and momentary nudity” because the FCC violated constitutional “due process protection against vague regulations” for failing to provide fair notice of what would be “actionably indecent.”
How is this decision relevant to net neutrality?
First, “net neutrality” is like “obscenity” or “indecency”, in that it’s often in the eye of the beholder, and is devilishly difficult to define definitively. The tweet-length provision of law in question (Section 1464) is: “Whoever utters any obscene, indecent, or profane language by means of radio communications shall be fined…”
The term “net neutrality” — that proponents have gone so far as to hype as “the first amendment of the Internet” — can be found nowhere in law. The concept is wholly organic to the FCC, in that it started as a concept in a speech that called for no regulation for it, became an unenforceable FCC policy statement, was then used as the basis for an enforcement action, and then became an FCC order that has been challenged in court for being unconstitutional, arbitrary and capricious, and without statutory authority.
The connection and point here is that the Supreme Court unanimously overturned the FCC today for applying a vague standard based on an actual statute without full due process, so it signals that they would have similar or more disdain for the FCC applying a vague standard found nowhere in law, made up entirely by the FCC that tramples on due process.
Second, the Supreme Court decided to overturn the FCC’s fines of Fox because the FCC’s assumed that Fox and ABC should have known what the FCC would do in every potential instance without clear guidance. How could Fox and ABC know clearly what was illegal, based on a vague law and a vague FCC order?
Does this sound familiar? It should. Remember the FCC sanctioned Comcast for somehow violating net neutrality based on a vague supposedly unenforceable FCC policy statement that afforded no appreciable due process under the Administrative Procedure Act. Comcast sued and the D.C. Court of Appeals overturned the FCC in Comcast vs. the FCC, for having no statutory authority to regulate an unregulated information service.
It is very telling that the FCC did not appeal Comcast vs. the FCC to the Supreme Court; they clearly appreciated they would lose.
In sum, this latest FCC court loss is a great reminder that the FCC cannot do whatever it wants, make up rules after the fact, or sweepingly act on its own without statutory authority.
This indirectly-related unanimous Supreme Court decision is also a helpful reminder that the court is unlikely to cut the FCC broad slack under its “Chevron Deference” precedent when the FCC is loose with due process. Those who have studied the FCC’s Open Internet order know it tramples on due process, in that it arbitrarily and capriciously declared a broad serious industry problem requiring preemptive regulation based on scant evidence of any problem and no statutory authority. It is in this context, that the FCC’s Open Internet order and Data Roaming order are so vulnerable to being overturned by the court going forward. The FCC’s hoped-for broad “Chevron deference” is no sanctuary because there is no vague provision for the FCC to interpret, because the Appeals court has ruled that the FCC has no statutory authority at all over broadband.