DC Circuit judges Tatel and Srinivasan went along with the FCC’s misclassification of Internet service as a telephone service today, but Senior Judge Steven Williams dissented. The majority opinion rules that the misrepresentations the FCC made in the Open Internet Order  are beyond its purview and therefore permissible because the role of the courts is simply to assess legal reasoning rather than issues of fact.

Judge Williams also refrained from addressing the agency’s factual errors; he found it unnecessary to do so because, in his judgment, the order is arbitrary and capricious. The FCC failed to justify its decision to change the nature of Internet service from an information-based service to a telephony service in a rational way, particularly its claim that reclassification would spur investment in broadband networks, so the Senior Judge would vacate the order altogether.

The easy-to-please majority relied on claims by the FCC’s attorney – and remarks from Justice Scalia’s dissent in the Brand X case – that DNS is a routing function when even the most cursory examination of its function shows it isn’t. When I click on this link – http://216.58.217.14 – I’m taken to Google, no DNS required [Note: this IP address may not work in the rest of the world, but if you ping Google.com and use the IP address that ping uses, you’ll get there.] Hence, the function of DNS is simply to provide an IP address, not to route packets. IP and BGP do the routing.

So the majority opinion shields the FCC’s distortions of fact from review. I can’t say whether this legal maneuver is likely to stand up on appeal, but I doubt it. The dissent doesn’t get to the question of the FCC’s abuse of the technical facts because it finds the order arbitrary and capricious for other reasons. I’ll have more to say later but I just wanted to get this out. Here’s the press statement I issued:

The DC Circuit’s Democratic majority deferred to the FCC’s judgment on the facts underlying the agency’s misclassification of Internet Service as a telephone service because it believes the law constrains it not to address factual matters. The FCC misrepresented DNS to the court as  “facilitating accurate and efficient routing from the end user to the receiving party,” but it does no such thing; because routing is accomplished by other parts of the Internet’s suite of software such as BGP and Internet Protocol itself and DNS is just as easily supplied by third parties as by the ISPs themselves. 

The dissenting opinion of Judge Williams that the agency’s action is arbitrary and capricious is sound and likely to prevail upon appeal. The misclassification was politically motivated, factual unsound, and legally questionable.