On Thursday, the Federal Communications Commission proposed new rules to regulate broadband Internet providers.
The rules will effectively let big Internet service providers like Comcast and Verizon create two tiers of Internet speeds: a “fast lane,” available to big content providers like Disney and Netflix; and a normal channel that must adhere to “commercially reasonable” speed standards.
Many supporters of an open web don’t like these rules. The agency’s suggested regulations, they say, will either sacrifice a key tenet of the Internet—net neutrality, a storied and contested idea—or prove ineffectual.
They say the agency must re-categorize broadband Internet providers, so that they become utilities—common carriers. It’s obvious, obvious, they say, that the FCC categorizes broadband incorrectly in the first place.
Turns out a member of the nation’s highest ranking court made their case for them almost a decade ago. That judge’s name? Antonin Scalia.
I’ll get to his thoughts in a moment. First, though, here’s a legal history of the FCC’s current predicament—the background you need to understand Scalia’s comments.
Two Definitions on Which So Much Hinges
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In the 1960s and 1970s, the FCC made a series of investigations into how computers might require changes in its regulatory role. After the second of these inquiries in 1976, the FCC made an important decision: It split communication into two legal categories: Basic services and enhanced services.
Basic services, said the agency, merely carried information. The voice telephone service is the prototypical basic service. Enhanced services, meanwhile, include information (or computation) on top of that infrastructure. If you sent information through wires, and then a computer changed that information in some way, then you were using an enhanced service. Voice mail is an enhanced service.
Two decades later, Congress passed the Telecommunications Act of 1996, the largest change in communications law since the 1930s. The law maintained the basic/enhanced dichotomy, but it renamed its two parts. Basic services became telecommunications services; enhanced services became information services.
Now, into which of these two categories does the Internet fall? The FCC regards the World Wide Web—the entire apparatus of browsers and HTML files, the layers upon layers of computation and presentation—as an information service (i.e., an enhanced service). It would make sense, then, that the wires through which this information service traveled were regarded as a telecommunications service (i.e., a basic service). Indeed, when most people accessed the web through phone wires with a dial-up modem, the agency did categorize phone lines as a telecommunications service—because it regarded all phone lines that way.
But that's not how it ended up categorizing broadband web access.
If there’s an original sin in this story—the moment that set in effect the entire fight over net neutrality—it happened in 2002. At the time, high-speed, broadband Internet was new and rare. Most Americans still used dial-up. Cable broadband providers often sweetened their product, giving users a free email account or access to a special web portal. Maybe these seemed like an extra-special layer on “top” of the Internet service they already provided; maybe the cable companies just had good lobbyists. Regardless, the FCC decided that broadband cable Internet was an information service, rather than a telecommunications service.
At the time, though, some companies made their living selling Internet access via another company’s phone wires. As cable companies began to expand broadband services, they wanted access to that faster infrastructure—but they largely couldn’t get it as long as cable broadband was “an information service,” a media product; and not a “telecommunications service” and blank infrastructure.
So one of them, an Internet service provider named Brand X, sued the cable companies’ trade organization, the National Cable & Telecommunications Association.
The case went to the Supreme Court. And that’s how Antonin Scalia, net neutrality’s unlikely hero, got involved.
It’s Not About the Internet
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The Court ruled 6-3 on Brand X. It was okay, the justices decided, for the FCC to consider cable broadband an information service—which means Brand X didn't get what it wanted.
Justice Clarence Thomas wrote the majority opinion. The case as decided, he wrote, was less about wires and cables and more about the latitude which the U.S. courts give federal regulatory agencies. Thomas said Congress’ rules about what defined a telecommunications service versus an information service could be unclear, so the FCC got to interpret them. Two decades before, the Supreme Court had ruled that the judiciary should let federal agencies interpret the laws authorizing them. In the Brand X case, Thomas extended this judicial deference.
“If a statute is ambiguous, and if the implementing agency's construction is reasonable,” then the Court had to let the agency execute its own regulation, Thomas wrote. It had to do this “even if the agency's reading differs from what the court believes is the best statutory interpretation.”
In other words, Thomas hinted that the FCC’s decision to regulate cable broadband as an “information service” struck him as curious, even odd. Perhaps he thought it wasn’t even the best interpretation. But he thought it was reasonable, defensible, so he—and the Supreme Court—wouldn’t intervene.
Pretend the Internet Was a Pizzeria
Justice Scalia disagreed. In an ardent dissent, he wrote that the FCC’s interpretation of the law around “information services” was “implausible.” With its decision to regard cable broadband as an information service, the agency had “[established] a whole new regime of non-regulation, which will make for more or less free-market competition, depending upon whose experts are believed.” In ruling that broadband was an information service, the FCC “had exceeded the authority given it by Congress.”
The Brand X case, by the way, is distinctly weird for several reasons. Not only is there the spectacle of famously conservative Scalia dissenting from famously conservative Thomas, there’s also the relatively liberal Justice David Souter and the reliably liberal Justice Ruth Bader Ginsburg join Scalia’s dissent.