| reply to IPingUPing
The FCC can't do an "end run" around its own rules This is correct. The FCC said that it's policy statement was not binding and did not constitute rulemaking (it did not go through a period of public comment where the public had a chance to point out potentially serious problems, such as the very dangerous “any application” clause).
To penalize Comcast would retroactively turn this nonbinding statement into a set of rules enacted without due process — an end run around the proper rulemaking procedure — and then enforce them ex post facto. Not only would this be unconstitutional, but it would be an end run around the FCC's own regulations and procedures for rulemaking. It would also be arbitrary and capricious, and thus violate laws regarding administrative procedure. |
