> The flip side of this, of course, is that Congress is gridlocked and is unlikely to pass sweeping new regulations of any sort. That's a fair point! But I think I side with the court on the notion that you gotta fix that problem
That's the Assume a Can Opener problem, given that we're locked into dysfunction with things like partisan gerrymandering, primary voting dominated by party extremes, and our first-past-the-post winner-take-all system — to say nothing of First-Amendment idolatry, as manifested in Citizens United, that has resulted in Second Gilded Age oligarchs being able to dominate the discourse among low-information voters.
Local politics have colored a lot of my views on these things, to where I'm deeply suspicious of faux-democratic processes like the notice-and-rulemaking regulatory process of the federal government. Nobody elected the people making these decisions! These are awfully big decisions for unelected appointees to be making.
> Nobody elected the people making these decisions! These are awfully big decisions for unelected appointees to be making.
Agency costs [0] are everywhere, so it's a question of the lesser of two (or more) evils: For most issues, if the legislature has even arguably delegated authority to unelected appointees (even, or even especially, to "politicals"), then I'd usually rather have those appointees making the decisions, subject to being overruled if they go too far. [1]
Otherwise, the problems just fester: Too many elected officials are terrified of offending oligarchical special interests with big checkbooks (and/or big megaphones), who are increasingly willing to punish deviance by stirring up extremist zealots in the parties' primary elections and low-information voters [2] in the general election.
[1] Chevron deference was quite workable. The Supreme Court's recent Loper Bright decision strikes me as another brazen, Marbury-style bootstrap by life-tenured judges who ought to think of themselves as humble hired help, but who imagine they should have authority without accountability. The "least-dangerous branch"? Not anymore. A "co-equal branch"? Talk about noses pressed up against the glass; there's a reason the Constitution talks about the federal judiciary in Article III, not Article I (Congress) or Article II (the executive branch).
[2] Low-information voters shouldn't be mocked: Most of us have other things to do in life; we just want issues dealt with competently and "equitably" — I'd prefer a Rawlsian "veil of ignorance" approach [3] for just about everything — with due attention to externalities and resilience. Example: In Texas judicial elections, I'm a low-information voter even though I'm a lawyer: Unless I know about the candidates myself, I generally follow the Houston Chronicle editorial board's recommendations, because I have some confidence in the board's process — and I don't want to spend time "doing my own research."
It's good that we disagree on things! There are broad delegations of power to the regulatory state that I'm OK with; I'm not a Federalist conservative. But my primary political issue these days is housing, and broad regulatory authority is the natural predator of affordable housing developments (environmental review, historical preservation, zoning variance and plan commissions, public hearings, &c), and most legislative progress in legalizing housing takes the form of sharply curtailing the authority of regulators.
In this particular case: I don't really think there's even a fig leaf of the grant the FCC claims they have. We were both there at the time, and I think it's clear from the text of the law and from the attitudes of the time that Congress looked at the Internet, the entire Internet, the same way it looked at CompuServe --- as an information service accessed through telecommunications links. The Internet is too big a deal for an executive agency to simply manufacture its own authority, simply because Congress isn't moving fast enough on it.
(If it helps: I also think Net Neutrality is dumb. I wouldn't stomp my feet and say that a Congressional act authorizing FCC rulemaking to enforce it was illegitimate; it would just be a policy I disagree with. Fortunately for me, Congress hasn't enacted that policy.)
That's the Assume a Can Opener problem, given that we're locked into dysfunction with things like partisan gerrymandering, primary voting dominated by party extremes, and our first-past-the-post winner-take-all system — to say nothing of First-Amendment idolatry, as manifested in Citizens United, that has resulted in Second Gilded Age oligarchs being able to dominate the discourse among low-information voters.