It's up to the courts to decide whether or not they actually are being "arbitrary and capricious".
> 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
Other sources that might interest you:
[0]: http://cdn.ca9.uscourts.gov/datastore/uploads/guides/stand_o...
[1]: http://lsolum.typepad.com/legal_theory_lexicon/2006/08/stand...
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...