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.
But to the document itself. The FCC’s argument, says Scalia, turns on whether a cable broadband company can be said to “offer” a service. This is because of the complicated way the 1996 Telecommunications Act defines telecommunications service: First by defining information service, then telecommunications, then, finally, telecommunications service. According to the 1996 law, a telecommunications service is “the offering of telecommunications for a fee directly to the public . . . regardless of the facilities used.”