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Microsoft, Compal sign patent deal for Android, Chrome. Google in Android patent rage. Volume 67, Issue 8 August Volume 67, Issue 7 July Volume 67, Issue 6 June Volume 67, Issue 5 May Volume 67, Issue 4 April Volume 67, Issue 3 March Volume 67, Issue 2 February Last month, the Federal Communications Commission FCC issued its plus page Open Internet Order , in which it reversed nearly two decades of bipartisan policy of applying a "light touch" to the Internet in favor of imposing legacy common carrier telephone regulations under Title II of the Communications Act designed for the world of the old "Ma Bell" monopoly.

While any lawyer will tell you that there is no way to make an accurate prognostication about the ultimate outcome of the litigation, we are likely to see the appellate arguments proceed along the following sequence. The threshold legal question will not be on substance, but rather on procedure. Under the Administrative Procedure Act, the FCC must notify the public of its intentions to regulate in a particular way, providing, ideally, a great deal of the details of its plan. Doing so permits the public to comment on the specifics.

Yet, in this case, the FCC in its May Notice of Proposed Rulemaking explicitly stated that it did not intend to reclassify, proposing instead to continue to impose a "light touch" pursuant to the D.

Circuit's instructions in Verizon v. Given the radical nature of the commission's departure from its original approach, coupled with the now well-documented political pressure imposed on the independent agency by the White House to reclassify , a strong case for remand on procedural grounds can be and will be made.

Assuming arguendo that the commission's order survives this procedural challenge, the next legal question is whether the FCC articulated a sufficient rationale for changing its longstanding policy of a light-touch approach to regulating broadband Internet access — an approach the Supreme Court has reviewed and validated.

While an agency is generally permitted to change its mind, it can only do so based on reasoned decision-making and in the face of changed circumstances. However, the commission's factual gymnastics in its order may prove too much for a reviewing court. Indeed, to make its logic fly, the commission had to redefine accepted norms of how the Internet works.

The commission's acrobatics were particularly acute for the Internet service you get on your cellphone. While it is true that Congress intended mobile voice to be subject to a very light form of common carrier regulation, Congress set forth a specific and detailed statutory scheme designed to keep "private mobile service" i.