First, Make A Decision

It's worth noting that, with respect to the deference given to the FCC by the Supreme Court, the Ninth Circuit's earlier refusal to follow the agency's policy choice emerged from the FCC's unfortunate hesitancy to answer the relevant regulatory question.  In so doing, the agency claimed it was following a "do no harm" policy.  In fact, it was promoting an environment of legal uncertainty.

In the wake of the Brand X fiasco, where the FCC found its regulatory agenda challenged by judicial precedents, the agency has moved to mend its ways.  In particular, as to the classification of Voice over Internet Protocol, it did not wait until the Eighth Circuit ruled on the matter; rather, it moved to fill the regulatory vacuum and asked for primary jurisdiction on the matter. 

In the future, the agency can serve itself well by addressing issues in a timely fashion and thereby avoiding prolonged litigation (and legal uncertainty) of the Brand X kind.  As regulated parties often bemoan, any decision is often better than no decision, for a clear legal rule (even a suboptimal one) enables parties to get on with planning and, in the best of worlds, Coasian bargaining.