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osewalrusPai and his buddies have invested a great deal of time and effort attempting to rewrite the history of regulation in this space over the last 20+ years. It is good to see I am not the only one who notices.
https://www.washingtonpost.com/posteverything/wp/2017/05/12/the-trump-administration-gets-the-history-of-internet-regulations-all-wrong/?utm_term=.be073f093549
And yes, it matters quite a bit. It is one of the primary legal weaknesses of the Order. Under the Administrative Procedure Act (APA), an unexplained departure from past precedent -- including departure from past precedent without acknowledgement of same -- is by definition "arbitrary and capricious" and this subject to reversal.
So why court reversal in such an obvious way? An excellent question, and one that I was asked multiple times when I kept insisting we highlight the false nature of the FCC's narrative in the comments. The answer was -- as I expected -- that the current FCC is simply unwilling to abandon its preferred narrative. To do so would require an explicit acknowledgement by the majority that Chairman Pai has been knowingly lying since 2014.
I do not use this characterization lightly, or simply as a pejorative. I use it in the literal sense of "telling a deliberate falsehood." The history here is well documented. It is incorporated into numerous FCC Orders. Courts have opined on this history multiple times.
So presented with the choice between a public confession voted on by a majority of the Commission (including himself) v. trying to bluff it out, I bet on bluff. It is much easier to believe your own narrative after several years than to come clean, even if it courts ultimate reversal in court.
https://www.washingtonpost.com/posteverything/wp/2017/05/12/the-trump-administration-gets-the-history-of-internet-regulations-all-wrong/?utm_term=.be073f093549
And yes, it matters quite a bit. It is one of the primary legal weaknesses of the Order. Under the Administrative Procedure Act (APA), an unexplained departure from past precedent -- including departure from past precedent without acknowledgement of same -- is by definition "arbitrary and capricious" and this subject to reversal.
So why court reversal in such an obvious way? An excellent question, and one that I was asked multiple times when I kept insisting we highlight the false nature of the FCC's narrative in the comments. The answer was -- as I expected -- that the current FCC is simply unwilling to abandon its preferred narrative. To do so would require an explicit acknowledgement by the majority that Chairman Pai has been knowingly lying since 2014.
I do not use this characterization lightly, or simply as a pejorative. I use it in the literal sense of "telling a deliberate falsehood." The history here is well documented. It is incorporated into numerous FCC Orders. Courts have opined on this history multiple times.
So presented with the choice between a public confession voted on by a majority of the Commission (including himself) v. trying to bluff it out, I bet on bluff. It is much easier to believe your own narrative after several years than to come clean, even if it courts ultimate reversal in court.
