From my blog: Zombie Arguments The DC Circuit Already Killed Once
Those of you who have followed the "network neutrality" debate for any length of time will know there are certain arguments that come up repeatedly. Some of these are differences of opinion not amenable to proof. Some are amenable to proof but the data can always be disputed.
And then there are arguments of law that the D.C. Circuit has settled and, barring a change in law, are the law and official facts of the case. Since the Federal Communications Commission (FCC) is an agency that does stuff with law, the final (unappealed) word of the D.C. Circuit, absent a circuit split, is the end of the line for an argument. You either need to distinguish the argument or preface it with: 'the DC Circuit has already decided this, but it was wrong.'
But a lot of folks keep arguing stuff that the DC Circuit has explicitly rejected, without any acknowledgement of that fact. For those of you playing at home, here are the walking dead of anti-Net Neutrality arguments that the DC Circuit has explicitly rejected so they are deader than a deadman in Deadville, Deadsylvania on the Day of the Dead.http://www.wetmachine.com/tales-of-the-sausage-factory/the-zombie-anti-net-neutrality-arguments-the-d-c-circuit-already-rejected/