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Let's face it, flipping the script to make net neutrality happen is just sneaky. I know this Congress is fairly vitriolic right now, but this is like the bureaucratic equivalent of Apple vs. Flash, with some judge somewhere ready to pull out a "thoughts on net neutrality" card on these jokers.

If you're gonna do it, FCC, do it the right way.




It's weird to flip it, I agree, but it's at least a reversal from an incorrect to correct position: the original decision to classify ISPs as not providing a "telecommunications service" was pretty hard to support.

The Supreme Court nearly said as much in 2005 in the Brand X case: they ruled in favor of the FCC's classification, but essentially only on the grounds that it was plausible enough that under existing agency-deference doctrine it could stand, even if wrong, as long as it wasn't totally insane. And even that only got a 6-3 vote, with 3 members of the court thinking the classification was so plainly erroneous that it shouldn't survive even a deferential review. And one of the six who did vote to give its rule deference, Breyer, admitted it might be "just barely" plausible enough to pass. (And it wasn't even some sort of pro-regulation liberals who dissented; Scalia wrote the dissent, on the grounds that the FCC's decision was simply plainly wrong, by the text of the statute.)

So it seems overall we've at least gotten to a more plausible interpretation of the statute, which should've been the one the FCC adopted initially.




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