Marc Martin was quoted in the Law360 article, "FCC’s Net Neutrality Plan Sets Up Repeal Without Replace," regarding the FCC's proposal to undo the reclassification of broadband as a utility, leaving it open-ended how, or if, the FCC will continue to compel broadband providers to follow net neutrality principles.

“It seems that Pai sort of wants his cake and to eat it too here,” Marc said. “He’s sort of stating that he recognizes the consumer popularity of principles … but he doesn’t want to have any legal teeth behind it. And I’m just not sure how that works — you can’t really have it both ways.”

Marc said Pai’s proposal weighs relinquishing authority over ISPs and takes a path that is “fraught with legal peril.” It’s difficult to take seriously the idea of a proposed replacement plan, he added, with the move to revert to Title I authority as well as a questioning of the agency’s authority under Section 706.

“If he is serious about this whole effort around reclassifying, doing it through the FCC rather than Congress, it’s not without risk that the D.C. Circuit may not buy the effort of classifying [broadband internet access service] once again,” Marc said.

Although the agency gets deference under the Chevron doctrine and has authority to interpret its own authority, the interpretation must still be reasonable, Marc said.