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A few guesses. 1. These things cost money and resources to initiate. EFF may see this as going nowhere†, so why spend the time and money? 2. EFF can always fi

by fny 9y ago

A few guesses. 1. These things cost money and resources to initiate. EFF may see this as going nowhere†, so why spend the time and money? 2. EFF can always file a brief if the case ever does go to trial. 3. Almost forgot: Mozilla wants the PR. †Here's Mozilla's claim: > Mozilla seeks review of the Order on the grounds that it is arbitrary and capricious within the meaning of the Administrative Procedure Act, 5 U.S.C. §706, it abdicates the FCC's statutory mandate, and it is otherwise contrary to law. IANAL, but I'm pretty damn sure the FCC can come up with a few decent arguments about why they're not behaving in an arbitrary and capricious manner...

madeofpalk 9y ago
The FCC has already explained why they believe they're not being arbitrary and capricious. They would repeat the same explanation in the courts. It's up to the courts to decide whether or not they actually are being "arbitrary and capricious".
- fny 9y ago
  Unfortunately, in a case like this the courts use "deferential review" as opposed to what you're implying (known as "de novo review"). The decision would be upheld for as long as the administrator can produce some evidence to support the decision, even if the decision were wrong! > The Court's focus is upon whether the plan administrator's final decision was "arbitrary, capricious or an abuse of discretion" . Under this standard, the administrator's decision can be upheld by the Court, even if it is technically wrong, as long as there is "substantial evidence" in the administrative record to support the decision. "Substantial evidence" is a rather nebulous term, which has been defined by the appellate courts as: "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" . It does not mean a large or considerable amount of evidence. It requires "more than a scintilla, but less than a preponderance." Source: http://www.angelfire.com/biz/romarkaraoke/Defer.html http://www.angelfire.com/biz/romarkaraoke/Defer.html Other sources that might interest you: [0]: http://cdn.ca9.uscourts.gov/datastore/uploads/guides/stand_of_review/I_Definitions.html http://cdn.ca9.uscourts.gov/datastore/uploads/guides/stand_o... [1]: http://lsolum.typepad.com/legal_theory_lexicon/2006/08/standards_of_re.html http://lsolum.typepad.com/legal_theory_lexicon/2006/08/stand...

by fny 9y ago

madeofpalk 9y ago

The FCC has already explained why they believe they're not being arbitrary and capricious. They would repeat the same explanation in the courts. It's up to the courts to decide whether or not they actually are being "arbitrary and capricious".

fny 9y ago
Unfortunately, in a case like this the courts use "deferential review" as opposed to what you're implying (known as "de novo review"). The decision would be upheld for as long as the administrator can produce some evidence to support the decision, even if the decision were wrong! > The Court's focus is upon whether the plan administrator's final decision was "arbitrary, capricious or an abuse of discretion" . Under this standard, the administrator's decision can be upheld by the Court, even if it is technically wrong, as long as there is "substantial evidence" in the administrative record to support the decision. "Substantial evidence" is a rather nebulous term, which has been defined by the appellate courts as: "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" . It does not mean a large or considerable amount of evidence. It requires "more than a scintilla, but less than a preponderance." Source: http://www.angelfire.com/biz/romarkaraoke/Defer.html http://www.angelfire.com/biz/romarkaraoke/Defer.html Other sources that might interest you: [0]: http://cdn.ca9.uscourts.gov/datastore/uploads/guides/stand_of_review/I_Definitions.html http://cdn.ca9.uscourts.gov/datastore/uploads/guides/stand_o... [1]: http://lsolum.typepad.com/legal_theory_lexicon/2006/08/standards_of_re.html http://lsolum.typepad.com/legal_theory_lexicon/2006/08/stand...