Sunday, May 18, 2014

Justice Scalia told us cable ISPs are common carriers 10 years ago

Someone has noticed that Justice Antonin Scalia "totally gets net neutrality", 10 years ago. In an article appearing in The Atlantic, the author notes Scalia's dissenting opinion in National Cable & Telecommunications Association et al. v. Brand X Internet Services et al., 545 U.S. 967 (2005),. The majority opinion turned on the question of the authority of an agency to interpret the law when the law is vague. The court ruled that courts must yield to the agency's interpretation of the law when the law is vauge.

But buried below that decision is the following observation by Scalia concerning the FCC's determination that cable service is an information service rather than a telecommunications service in his dissenting opinion:

   The Federal Communications Commission (FCC or Commission) has once again attempted to concoct "a whole new regime of regulation (or of free-market competition)" under the guise of statutory construction. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 234 (1994). Actually, in these cases, it might be more accurate to say the Commission has attempted to establish a whole new regime of non-regulation, which will make for more or less free-market competition, depending upon whose experts are believed. The important fact, however, is that the Commission has chosen to achieve this through an implausible reading of the statute, and has thus exceeded the authority given it by Congress. (emphasis mine)

 Scalia's opinion notes that the cable ISPs are providing the same telecommunications service that the phone companies offer, just using different hardware, while offering "information services". The cable companies offered free email addresses and websites to show that they are "information services", too. The FCC took this to mean that since they are offering information services, they must be classified as an information service rather than a telecommunications service. Scalia's point is that even if the cable companies offer "information services", they are still providing "telecommunications services" and are thus Title II Common Carriers.

In a nutshell, the FCC ignored the telecommunications service aspect of the bundle of services provided by Comcast, while classifying and regulating that company. Scalia's dissent demonstrates that if the FCC wants to reclassify cable ISPs as Title II Common Carriers, it not only has every right to do so, it is prohibited from doing otherwise.

Scalia's observation has been buried and ignored for more than ten years because the majority in that opinion deferred to the agency on the interpretation of the law, rather than classification of the services offered by cable companies based on the physical attributes of the service.

FCC Chairman Tom Wheeler and the commission have recently been pondering the idea of reclassification in a very public way. But the reading of Justice Scalia's dissent suggests that if the commission does elect to reclassify cable ISPs, there will be a very friendly Supreme Court ready to affirm their decision to do so. So what are they waiting for? The green light was given 10 years ago.
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