Ahh, Memory Lane..."Obama's Bad Pick: A Former [Cable Industry] Lobbyist at the FCC"

[onenote]

32. I'll jump in here: the FCC does not have "complete discretion" to change a previous position

While the FCC's decisions interpreting and applying the provisions of the Communications Act are typically accorded deference by the courts, a decision changing a previous ruling will be deemed to be arbitrary and capricious if the agency cannot provide a good reason why it has changed its position. In other words, if the agency has to make a choice between A and B and both are reasonable, the court will defer to the choice. But if, after picking interpretation A it decides to change its mind and go with interpretation B, the courts will not only review to see if B is still a reasonable interpretation, but also will review to see whether the agency has provided a reasoned explanation for concluding that B is the better interpretation.

And merely saying that "we prefer interpretation B because it lets us do things that interpretation A didn't" won't cut it.

I might add that there is another factor to consider: Wheeler alone can't do anything. He needs three votes. I'm not sure he would have them. Clyburn more likely than not would be with him, but Rosenworcel is a bit of a question mark, having stated during her confirmation hearing that "I do not believe all the requirements of Title II of the Communications Act should apply to all new services.

"Regulations designed for the era of basic telephony are not uniformly appropriate for the technologies and services of the digital age."